THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 3, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with video conference this day at 4:15 p.m. [ET] to study the subject matter of those elements contained in Divisions 30, 31, 34 and 39 of Part 4, and in Subdivision B of Division 3 of Part 4 of Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023.
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Honourable senators, I would like you to introduce yourselves, beginning with the senator to my right.
[English]
Senator Jaffer: Senator Jaffer, from British Columbia.
Senator D. Patterson: Dennis Patterson, Nunavut.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Klyne: Good afternoon and welcome. Marty Klyne, senator from Saskatchewan and Treaty 4 territory.
[Translation]
Senator Dupuis: I am Renée Dupuis, an independent senator representing the senatorial division of The Laurentides, in Quebec.
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu from Quebec. I am the committee’s deputy chair and I am filling in for the chair, Senator Cotter, who is busy with another committee, where he is defending another bill.
Honourable senators, today, we are beginning our study of the division of the budget that was referred to us. We are examining Division 39, which deals with amendments to the Canada Elections Act. I sincerely want to thank our analysts for putting together the briefing materials we have this afternoon in such a short period of time. As usual, they worked very hard to meet the committee’s needs in short order. I would also like to thank the witnesses for making themselves available this afternoon on such short notice.
Joining us from Elections Canada are Stéphane Perrault, Chief Electoral Officer, and Anne Lawson, Deputy Chief Electoral Officer, Regulatory Affairs. You will have five minutes for your presentation, and then, the senators will have five minutes each to ask you questions.
[English]
Stéphane Perrault, Chief Electoral Officer, Elections Canada: Thank you for the invitation to appear before this committee as it studies the proposed amendments to the Canada Elections Act contained in Bill C-47.
It is unusual for changes to the Canada Elections Act to be included in budget legislation. Such bills are often very large, touching on a wide variety of unrelated topics and are a matter of confidence. As such, they do not lend themselves easily to the level of scrutiny and partisan confidence that one would hope to see for changes to the Canada Elections Act.
In this case, the amendments before you do not alter the rights and obligations contained under the Canada Elections Act nor do they have an impact on Elections Canada’s ability to administer the act. In that sense, the presence of these amendments in the context of this particular bill is not so problematic. This is not to say they don’t have an impact on the privacy rights of Canadians. For that reason, I welcome the committee’s interest in the proposed amendments.
I believe that having better rules in place to ensure safeguards around the use of personal information by political parties would assist in preserving the trust of electors in the electoral process. Political parties have, by law, access to basic voter data through the voters’ list. This allows them to reach out to voters. They also have, by law, access to records of votes cast, commonly referred to as bingo sheets, which, at the end of each day at advance polls and at regular intervals on polling day, tells them who has voted. This allows them to get out the vote as is commonly spoken of.
Beyond this, in order to understand and effectively reach their intended audience, political campaigns increasingly rely on data and data analytics. Although surveys are still commonly used in a digital era, more targeted information about electors’ identities and preferences can be collected in many ways either directly or indirectly.
[Translation]
Bill C-76 amended the Canada Elections Act in 2018 to require parties to publish their own privacy policy, which must include statements indicating the type of information collected and how it is protected and used, under what circumstances information may be sold, how the party collects and uses personal information created from online activity, and the name and contact information of a person to whom privacy concerns may be addressed.
While these new requirements increase transparency about the handling of personal information by political parties, there are no minimum standards in the act that parties must follow. Nor is there any oversight mechanism to monitor whether parties abide by the contents of their policies, or any sanctions in case of non‑compliance. In my 2022 recommendations report following the 43rd and 44th general elections, I recommended that the privacy principles enumerated in Schedule 1 of the Personal Information and Protection of Electronic Documents Act should apply to registered and eligible parties, with oversight by the Office of the Privacy Commissioner of Canada.
In the absence of full application of these principles, I recommended certain minimal requirements, namely that Canadians have the right to opt out of receiving communications — or certain types of communications — from political parties; that they have the ability to request access to, and correct, inaccurate personal information held by political parties; and finally that political parties be required to indicate in their policies how electors’ personal information may be shared, in addition to how it is collected, used and sold —which is already a policy requirement in the current act.
Mr. Chair, I believe that better safeguarding electors’ personal information will help maintain Canadians’ trust in Canada’s political parties and, by extension, the electoral process. That said, I want to be clear. I do not believe that such an important reform of the Canada Elections Act should take place in the context of a budget bill. Rather, it should be done through a separate bill. In other words, I am not opposed to the measure in the budget bill. I think that it should be supported by a stand‑alone bill aimed specifically at amending the Canada Elections Act, to enhance privacy protections because the current regime is inadequate.
The Deputy Chair: Thank you very much. Senators wishing to ask questions should advise the clerk, who will add you to the list in order.
My first question is this. You began by saying that these amendments should have been made in a stand-alone bill, not in something as broad as a budget bill. Were the political parties consulted on these proposed amendments?
Mr. Perrault: I can’t confirm that. I do want to make clear that I am not opposed to the amendments as they appear in the bill. What I’m saying is that we need stronger and more safeguards, and that those changes should be made outside the budget process.
The Deputy Chair: If they were made in a different context, it would involve broader consultations.
Mr. Perrault: When I made my recommendations, I consulted the political parties and stakeholders more broadly. We also surveyed Canadians.
The Deputy Chair: Do these amendments come from you?
Mr. Perrault: No. These amendments are meant to override the provincial and territorial privacy regimes so that parties are subject only to the Canada Elections Act rules. That is my understanding of the purpose of this measure.
Senator Dalphond: Thank you very much for being here today. I was here the last time you were with us. I believe it was in 2020, when we were studying Bill C-76.
Mr. Perrault: In 2018.
Senator Dalphond: These privacy protection provisions have been the subject of much discussion. I’m looking at the materials we received on Division 39, including an overview of the division as well as related questions and answers. In the question-and-answer section, it says this about what the government is implementing:
The Government of Canada is committed to raising the bar on the privacy regime for federal political parties in an incremental and appropriate way, continuing our work that began in 2018. . . .
We have listened and heard that more needs to be done. That is why the Government is taking another step to protect voters’ personal information fairly and consistently across the country.
I was glad to see that, because I didn’t think we had done all there was to do with Bill C-76. However, when I read the bill, I saw that none of the measures had been taken. The government’s position is simply this: since British Columbia claims to have jurisdiction over the parties, we’re going to say that parties fall under a national regime, so the province can’t tell them what to do. It feels as though the government is protecting the parties, but not voters.
I’m not trying to make you say you agree. In your opening remarks, you said that you issued recommendations after the elections. If I understand correctly, the amendments in the bill do not include any of those recommendations.
Mr. Perrault: Not in this bill. In some ways, I would say that’s a good thing, because I wouldn’t want the government to use the budget process to overhaul the Canada Elections Act. I made a set of recommendations that address more than just privacy. For a variety of reasons, the House of Commons parliamentary committees have not yet had an opportunity to examine them. Nevertheless, this bill does not improve privacy protections for Canadians.
[English]
Senator Jaffer: Thank you for being here, Mr. Perrault. You are not a stranger to this committee. Welcome again.
I have one question on what you started with. Is there any urgency in the provisions that it had to be in this budget bill? As you said in the beginning, it is not normal. Do you know why it would be put in here?
Mr. Perrault: It would be for the government to speak to that matter, senator.
I understand that there is litigation going on. This may be part of a litigation strategy. It is not for me to speak to that strategy or the motivations of the timing of this initiative.
Senator Jaffer: I understand it is for the government. If they come, I will ask them. My question was, on your part, was there any urgency? Did you urge the government?
Mr. Perrault: I would look forward to having legislation that looks into my recommendations, but this is not such legislation.
Senator Jaffer: The other question I have is: How do you see clause 680 moving forward? What changes to Canadian election law or policy do you expect? How will the political parties adapt? Do they have to adapt to these changes?
Mr. Perrault: There is no easy answer to that question. It sets aside provincial or territorial rules insofar as they apply. There is litigation ongoing.
We know the B.C. Information and Privacy Commissioner has taken the position that provincial privacy rules in B.C. apply to federal parties operating in British Columbia. That is a disputed matter. It changes the law to the extent that the Privacy Commissioner is correct. But there is a judicial review of that matter that is ongoing.
Senator Jaffer: Clause 680 of Bill C-47, which amends the Canada Elections Act, reads, in part, as follows:
The purpose of section is to provide for a national, uniform, exclusive and complete regime applicable to registered parties and eligible parties respecting their collection, use, disclosure, retention and disposal of personal information.
What does that mean exactly?
Mr. Perrault: My understanding is that it serves to say that no other rules on that matter, outside of the Canada Elections Act, apply to political parties.
Senator Jaffer: How is it to be implemented?
Mr. Perrault: There is nothing for me to implement in this.
Assuming that parties were striving to be compliant with other rules, then they are alleviated of that burden. As far as I’m concerned, it has no implication on my administration of the Canada Elections Act.
Senator Jaffer: How does it differ from what we currently have?
Mr. Perrault: That would be for the parties to say whether they are compliant with provincial regimes. I can’t speak to that. I don’t enforce provincial regimes. To the extent that they were seeking to be compliant with provincial regimes, they would no longer have to. Of course, they could choose to continue to be compliant.
Senator Jaffer: Thank you, Mr. Perrault.
Senator Batters: Thank you very much for being here.
Mr. Perrault, I wasn’t entirely clear when Senator Boisvenu asked you this, so perhaps you can clarify. He asked you whether the federal government had consulted you. I didn’t get the impression that they had. You can correct me if I’m wrong.
What I’ve noticed is that this particular provision would mean that the federal government has drafted it so that political parties are regulated for this particular part of it, subject to the oversight of Elections Canada, rather than the federal Privacy Commissioner for this type of personal information. That regulator would generally have the expertise on privacy issues.
You just indicated that you didn’t believe that this provision would have any implication on your administration. I have to assume then that any oversight would be really nonexistent and this provision is, therefore, rather toothless.
Was it intended that you would have oversight of this? I certainly understand that this is far from what you have requested on this.
First of all, if you can answer, did the federal government consult you? Were you intending that this be subject to your oversight? If, as you’ve just stated, this has no implication on your administration, I’m assuming that your oversight is basically zero.
Mr. Perrault: I’ll try to clarify. There are several aspects to your question, senator.
In terms of consultations, I have had discussions with the government and every party in the House regarding my recommendations, including my position on the privacy improvements. I was aware that this could be coming in this legislation, but I was not consulted on it.
Senator Batters: On these provisions, okay.
Mr. Perrault: In terms of the oversight, let me try to clarify.
There are very limited provisions in the Canada Elections Act that have actual sanctions. If a party uses personal information obtained from the list of electors — that is very narrow — for a purpose that is not permitted under the act, there are offences and that is enforced by the Elections Commissioner.
When we distribute lists of electors, we provide guidelines that are not mandatory — they are best practices — for the protection of personal information. The regime now since 2018 requires parties to have policies in order to be registered, so they have policies. I have to enforce those, but their policies are up to them. There is no minimum standard in those policies that they must abide by. Their policies could be very lax in terms of the protection of personal information.
My only oversight role is to determine whether they do have such a policy on their website, not whether they abide by that policy or whether it is adequate, substantively.
Senator Batters: And this provision adds nothing to that, right?
Mr. Perrault: It does not change my role in any way, shape or form.
Senator Batters: They are basically trying to put forward a provision in a 400-some-page budget implementation act, or BIA, that is totally toothless.
Mr. Perrault: Insofar as increasing the protections under the Canada Elections Act, it does not do that.
Senator Batters: Again, if it is toothless, aside from this maybe dealing with this particular court case that’s going on right now, what would the only other reason be? That seems to be the only reason they would be putting it forward in a budget implementation act. It is something that doesn’t provide any — usually, things in a budget implementation act need to be passed right away as part of the budget, or they are things that are very important and need to be passed right away. But it doesn’t sound like anything like that is in here. Aside from the potential ramifications on the court case, that seems like the only thing.
Mr. Perrault: I cannot speak on behalf of the government or answer questions for the government.
Senator Batters: I have one other question for you since you’re here today.
At the Legal Committee, since I’ve been on it over the last 10 years, we have generally had you or the person acting as the Chief Electoral Officer come before our committee to present their report on an election that’s just happened. We haven’t had you present on either the 2019 or the 2021 elections, and it’s now 2023. Do you have any idea when something like that might be coming?
Mr. Perrault: There is nothing [Technical difficulties] reports are public. I’m awaiting any invitation to speak to my reports. I do not invite myself to committees, and it has not been the practice of my predecessors, but I’m always happy to attend committees and account for the administration of the act following an election.
Senator Batters: Thank you.
[Translation]
Senator Dupuis: Thank you and welcome to the Senate of Canada.
My question is about what’s being added to the Canada Elections Act. As I understand it, proposed subsection 385.2(2) states that parties “may . . .collect, use, disclose, retain and dispose of personal information in accordance with the party’s privacy policy.” That means that, under the current Canada Elections Act, parties are required to have a privacy policy and that you can step in if they don’t. Is that correct?
Mr. Perrault: That’s correct.
Senator Dupuis: What’s being added here is that the parties “may,” in accordance with their own privacy policy and subject to the act, “use, disclose, retain and dispose of personal information.” The bill is giving them permission to collect, use, disclose and retain personal information.
Proposed subsection (3) then lays out the purpose of the section, which is “to provide for a national, uniform, exclusive and complete regime applicable . . .” If I understand correctly, although the parties may collect information, they aren’t required —
In other words, what is the relationship between proposed subsections 385.2(2) and 385.2(3)?
The purpose is to create a national regime, but parties still have the option to do or not do certain things, such as collect, use and disclose some of those activities.
Mr. Perrault: That’s correct, and the policies are left up to each party, so they vary from party to party.
The national consistency is achieved by requiring the parties to have and publish a policy. The legislation contains other provisions relating to the use of the voters list, for instance, which I think are captured in that.
Senator Dupuis: However, as I understand it, the provision being introduced does nothing to guarantee a “national, uniform, exclusive and complete regime.” Do I have that right?
Mr. Perrault: Not a satisfactory regime, if I’m being perfectly honest.
Senator Dupuis: Thank you. That answers my question.
[English]
Senator Pate: Thank you to our witnesses for being here.
In your report on preventing deceptive communications with electors, you recommend that:
. . . political entities become subjected to the broadly accepted privacy principles set out in the National Standard of Canada entitled Model Code for the Protection of Personal Information . . . .
You’ve already indicated that you weren’t specifically consulted about this measure. You’ve indicated that ongoing legislation seems to be part of — you haven’t indicated, but that’s my conclusion from what you said — so my question for you is this: What kinds of recommendations would you like to see followed through, and is there a way to fix it within these provisions, from your perspective?
Mr. Perrault: Personally, I would be pleased to hear this committee speak about the importance of shoring up or improving privacy protection rules governing political parties. Whether it’s the full 10 principles or some variations on those, there has to be some minimum standards. I’ve indicated three in my report. Also, senator, I believe you were referring to a 2012 report by my predecessor, but I have made a more recent report, and it is fairly consistent with that report.
There have to be some minimum standards. There have to be some enforcement mechanisms with sanctions for non‑compliance. We can have an open discussion as to what the standards should be, how far they can go and whether parties and candidates should be subject to the rules and requirements, but I don’t think the complete absence of enforceable standards is adequate to reassure Canadians regarding the protection of their personal information.
Senator Pate: Would you be willing to share what you ideally think should be in here and provide that to us in writing?
Mr. Perrault: Certainly. In my report to Parliament, I have recommended that there be a requirement that they follow privacy principles and that they be subject to the oversight of the Privacy Commissioner.
I recognize that this is a complex area and that there are volunteers in campaigns. I recognize that what is appropriate for the party may not be equally appropriate for local candidates, but I think it is an area that requires some engagement with parties and needs pragmatic approaches. Also, I do not believe that the status quo is sufficient to preserve the confidence of Canadians regarding how their personal information is being handled by political parties.
Senator Pate: Thank you. We can look at that and see if there is wording that can be put in observations from this committee.
Second, you mentioned that you have had discussions with all political parties, and that for some, the policies seem quite lax. In some context, “lax” might mean “not compliant.” I am curious as to whether there is any information available in terms of the types of advice you have provided to the political parties that would be accessible to us?
Mr. Perrault: Absolutely. I can share with the committee — I can do a follow-up regarding that we have provided some guidance to the parties. We have been working collaboratively with the Office of the Privacy Commissioner of Canada. I know he is coming to testify after me, but his predecessor was involved in trying to help the parties to craft appropriate policies.
Senator Pate: If you could send those along, that would be appreciated.
Mr. Perrault: Absolutely.
Senator Pate: Thank you.
Senator Clement: I want to go back to the question of Senator Dupuis and your response to Senator Pate. I have been a candidate, and I have worked with volunteers. We have actually had to look over these things at times, right? So that’s who is looking at this, too. It’s not a lawyer sitting in an office. Oftentimes, it’s local people trying to figure this out.
When we look at the amendment proposed to section 385.2 of the Canada Elections Act in Bill C-47 — coming back to Senator Dupuis’ question — which reads, in part, as follows:
. . . may, subject to this Act and any other applicable federal Act, collect, use, disclose, retain and dispose of personal information in accordance with the party’s privacy policy.
The national standard is that every party has to have a policy, but they can be uneven, and we don’t really know. When a regular person reads this, they might wonder which one it is. Is it the federal act or is it the privacy?
[Translation]
It’s about which one takes precedence —
[English]
— how is this to be interpreted by regular folks?
[Translation]
Mr. Perrault: I’m not really in a position to say, since I wasn’t involved in drafting the provision. When I read it, the question I asked myself is this: Does it mean that their power to collect information is or isn’t subject to compliance with their policy? If so, what are the penalties? I don’t see any. It’s not clear. I also don’t think it’s clear which regime is being referred to or how it impacts the privacy rules being applied to candidates and associations. This refers to political parties. As I see it, the provision is ambiguous.
People thought about this. They chose this language. My team and I were not involved in drafting the provision. Unfortunately, I can’t really shed light on that for you.
Senator Clement: You agree that there’s an interpretation problem, though. Do you not?
Mr. Perrault: There are interpretation issues. What’s clear to me is the desire to set aside the provincial and territorial regimes. What isn’t clear to me is what the measure says about the federal regime.
Senator Clement: I see. Thank you.
The Deputy Chair: Further to Senator Clement’s question, how much oversight will you have in ensuring compliance with the measure? If a member of the public notices that their personal information was used for other purposes, what recourse do they have?
Mr. Perrault: That’s the issue I see. There are no mechanisms, there is no recourse as things stand. The only recourse is that the Canada Elections Act provides for an offence in relation to paragraph 111(f), which prohibits the use of personal information in the list of electors for purposes other than those listed in the Canada Elections Act. It’s a subset of personal information. Parties receive information from different sources, including the list of electors, which contains very little information other than the voter’s name, address and identifier.
Subject to that provision and my obligation to ensure that the parties have posted policies on their websites, my role ends there. Again, for the first one, it’s referred to the commissioner. I don’t see to the enforcement —
The Deputy Chair: What I gather from your answer is that the parties face no consequences when they don’t comply. Is that correct?
Mr. Perrault: I don’t see any. I think that’s a flaw in the legislation. It’s a pre-existing flaw, not a flaw created by this measure. It’s a problem that needs to be fixed. This provision is neither adding to the problem nor contributing to the solution.
The Deputy Chair: I see.
[English]
Senator Klyne: In your opening remarks, you mentioned a couple of times that having better rules in place to ensure safeguards would assist in preserving the trust of the electors. Then in your closing comments, you talked about believing that better safeguarding electors’ personal information will help maintain Canada’s trust in Canada and Canada’s political parties and by extension the electoral process.
Today, I am going to ask you to grade how federal political parties have approached the protection of personal information since Bill C-76. How would you respond?
Mr. Perrault: I don’t feel that I’m equipped to properly respond because I have no ability to monitor whether they, in fact, apply the policies. I don’t want to suggest that they do not, but I am not in a position to speak to that matter.
Senator Klyne: I think in 2022, you did make some recommendations, but maybe we’ll leave that.
I’ll go back to 2018. There was a question asked by Senator Boniface regarding an oversight function and recommendation. When she asked that question, you responded with — this is the 2018 reference to Bill C-76:
. . . what is provided in this bill in terms of oversight is not really oversight of the application of whatever policies that the parties would have; it’s oversight of the fact that they have a policy and that it’s published. But it’s hard to see how, beyond that, there would be any oversight that I could do of the application of that policy, unless it’s a completely false policy that is never applied. The fact that a party may not always be compliant with a policy doesn’t mean they don’t have one or that it’s not truly their policy, so I think the amount of oversight that we are looking at in having in this bill is close to nil.
You did, however, add your belief that there should be oversight. There were a lot of questions around oversight. Did you — I think in 2022 — recommend that it should be in conjunction with the privacy commissioner?
Mr. Perrault: The most important thing is that there be oversight by some independent third party. I believe the privacy commissioner is best suited to interpret privacy requirements. They have that expertise. If Parliament were to choose some other mechanism, I’m not close to that.
I’m a pragmatist, here. There should be some oversight by some independent body.
Senator D. Patterson: Thank you for being here, Mr. Perrault. Your 2022 recommendations following the forty‑third and forty-fourth general elections were that privacy principles enumerated in the Personal Information Protection and Electronic Documents Act should apply to registered and eligible parties with oversight by the Office of the Privacy Commissioner of Canada. You were not recommending self-regulation by political parties?
Mr. Perrault: I was not.
Senator D. Patterson: You’ve told us the three minimal requirements you recommended in the absence of a full application of these principles. Have they been reflected in this bill?
Mr. Perrault: They have not.
Senator D. Patterson: Therefore, I’m really curious, sir, respectfully, why you would say that you do not oppose Bill C-47. It kind of sounds like an endorsement to me, even though your recommendations are clearly not reflected in these changes. You’ve said there are no minimum standards to follow and no oversight, so why would you tell us that you’re not opposed to Bill C-47 when your recommendations seem to have — at least so far — been ignored?
Mr. Perrault: It’s a good question. It’s not an easy one.
The reason I’m not objecting is that I don’t believe such reforms should happen in the context of such a bill — a budget implementation bill. These are important policy issues.
You will see from my recommendations report in this instance — and in other recommendations — that I provide a direction and an invitation to parliamentarians to examine and discuss. I don’t necessarily provide a fixed remedy. I say, “There’s a need to have a remedy. I think it should be this; at a minimum it should be that.” However, this requires a policy conversation. I strongly believe in the roles of parliamentarians to examine these issues in depth, and I don’t think it would be setting a good precedent to have this kind of measure in a budget implementation bill.
Senator D. Patterson: But that is what we have, and you’re telling us to let it go.
Mr. Perrault: I’m telling you this bill does not achieve the purpose that I’m seeking. Those recommendations remain; they should be pursued in some other piece of legislation.
This piece of legislation does not alter the rights and obligations, as far as I can interpret it, under the Canada Elections Act. It merely — and that is not insignificant — sets aside provincial privacy regimes. In my view, that is not enough. There should be a beefing up — excuse my language — a reinforcing of the privacy measures but not in the context of a budget implementation bill.
Senator D. Patterson: The good thing about it is that it sets aside provincial and territorial privacy regimes?
Mr. Perrault: I would not call that a good thing. It’s a thing.
Senator D. Patterson: It’s the only thing.
Mr. Perrault: That is outside the scope of the legislation that I’m charged with administering.
Senator D. Patterson: Thank you.
[Translation]
The Deputy Chair: Would I be right to say that the bill has no impact on the parties?
Mr. Perrault: I don’t think so, but it depends on the outcome of the case in British Columbia and possibly elsewhere in the country. If the courts were of the same mind as the Privacy Commissioner and determined that the provincial regimes apply to political parties operating in the province, this provision would set aside that right.
[English]
Senator Dalphond: I think all the discussions show that the object and purpose of the bill are well described. Let me go back, for those who maybe have no time to read it. In March of last year, 2022, the Information and Privacy Commissioner for British Columbia concluded that the federal political parties operate in B.C. They run candidates and have local associations and provincial organizations. He said to the four political parties, “You will be subject to the provincial privacy act.”
The political parties argued that they were not. They said, “We’re in the federal Parliament; we’re federal businesses, entities, whatever you call it, so you cannot regulate us.”
The commissioner does a long study and says, “Well, I understand that you are subject to the Canada Elections Act, but it does require only one thing — that you get a policy on privacy.”
So this is done, but there’s nothing else. The provincial act contains some specific provisions on what you can do with the information you collect; you can dispose of it; you can share it and everything else. He said there’s no conflict between the federal and provincial laws. There’s nothing in the federal law, so they are complementary systems. In our federal systems, provincial laws can apply to a federal bank if there is no specific provision in the federal law that says the provincial law does not apply.
I understand this is before a judicial review. But I look at the bill before us — Bill C-47 — and the proposed changes therein to section 385.2 of the Canada Election Act. The first paragraph is about definitions, and the second one is about the collection, use, disclosure, retention and disposal of information. We’re already at sections 385 and 385.1, the fact that you must have policies on collection of data. This does not allow them to collect data. They already require policies about that, which means that they collect data.
I guess the real purpose is in the third paragraph: “The purpose of this section is to provide for a national, uniform, exclusive and complete regime . . . .”
Then there’s no room left for a provincial regime to complement or supplement the system. If it’s inclusive, if it’s complete, that means you cannot do anything.
It’s quite clear that this provision is not adding anything except to protect political parties that were fighting before the provincial commissioners, saying, “No, we’re not subject to you, despite the four complaints received from electors who want to get access to their files. No, you cannot order us to do anything.”
This responds to the parties. It has nothing to do with the protection of the electors or their privacy rights. To me, I’m quite interested to see your recommendations about things that should improve the protection of electors, protection which, after two elections, has not yet been implemented. But this is being implemented to protect political parties.
It was a long comment, sorry. I have a question. Are you working in parallel on something that would protect the electors? Are you working with the government on the ways to implement your recommendations on how to better protect the privacy of Canadian citizens?
[Translation]
Mr. Perrault: Senator, I don’t have anything to add to your description of the bill or what it aims to do. I made recommendations. Under normal circumstances, parliamentary committees review those recommendations. I’ve discussed my recommendations with the government, as well as with the opposition critics. However, I haven’t had a chance to discuss them in greater detail, because the committee that usually studies my recommendations has been seized with various issues in the news and the redrawing of the federal electoral map. Unfortunately, there hasn’t been an opportunity for me to present my recommendations or for a parliamentary committee to review them. I hope that will happen once the committee has completed its electoral redistribution study, so that these issues can be addressed.
Senator Dalphond: Thank you.
Senator Dupuis: Mr. Perrault, I’ve come to the same conclusion as the honourable senator to my right. If I understand correctly, you said that there was a matter before the courts and that the applicability of the laws was currently being disputed. The purpose is to state the government’s desire to create a national uniform regime, so to establish jurisdiction through a federal act.
Mr. Perrault: That is my understanding.
Senator Dupuis: I see. Thank you.
[English]
Senator Batters: Mr. Perrault, I’m a little confused. I think you said that you don’t oppose this measure because it’s in a massive budget implementation bill — which is around 470 pages — but rather because, as you said in response to an earlier question, it doesn’t achieve the purpose you were seeking. And you’ve said that it’s not in the type of stand-alone legislation that you would recommend for this kind of measure. Are you really saying here that you don’t oppose this type of measure because it’s essentially toothless and it really doesn’t do anything?
Mr. Perrault: I’m saying that it is not a substantive reform of the Canada Elections Act. If it were, I would be concerned about seeing that in a budget implementation bill. That’s the first thing. Second, I continue to be concerned about the lack of adequate privacy protections under the Canada Elections Act. I think there should be a reform but that this reform should be pursued outside of a budget implementation bill.
Senator Batters: Senator Dalphond was asking if you’re working on anything else with the federal government that might perhaps improve this type of regime. But wouldn’t you concede that if the federal government actually intended to do something like that, they probably wouldn’t be putting this into a budget implementation act, only to be coming forth with something much more substantial in the near future?
Mr. Perrault: I cannot speak, Mr. Chair, on behalf of the government. I’m an agent of Parliament. I do engage all parties, and I work through parliamentary committees. That is my venue to make recommendations, and I’m here in that capacity before this committee and also regularly before the Standing Committee on Procedure and House Affairs, or PROC, in the other place.
Senator Batters: But you’re not working with the government on any particular, much more substantive improvement to this regime?
Mr. Perrault: I’m not working with the government on reforms, no. I work with Parliament.
Senator Batters: Thank you.
Senator Klyne: I have two quick questions, and you touched on one of these previously. The amendment under discussion today uses the words, “subject to this Act and any other applicable federal Act.”
First, would you have specific examples of other applicable federal acts? Second, could you please describe how the Elections Canada Act and other applicable federal acts regulate a federal political party’s collection, use and disclosure of personal information?
Mr. Perrault: I’m not aware of any federal act that regulates the use, disclosure and collection of personal information except under the Personal Information Protection and Electronic Documents Act, or PIPEDA, if a party were to do it on a commercial basis. If they were to sell their data on a commercial basis, they would be — it is my understanding — but, then again, the Privacy Commissioner, who is going to be here after me, he may confirm or inform my understanding. My understanding is, in that narrow case, the parties would be subject to the Privacy Act.
Senator Klyne: With the amendment under discussion today, would there be any remedy or consequence if a federal political party collects, uses or discloses personal information in a manner contrary to their own privacy policy? If so, would Elections Canada have any role in enforcing that remedy or consequence?
Mr. Perrault: Unfortunately, there would be no consequence, and we would have no role. But that is the status quo.
Senator Pate: In addition to your reports, I’m curious as to whether there is any additional information you think we should be aware of regarding this bill that has not already been asked. That’s one.
Secondly, there has been a significant number of questions around the B.C. case. Which provinces and territories have the strongest privacy legislation that would protect the electorate, from your perspective?
Mr. Perrault: I’d have to come back to that because I haven’t done a complete study of all the provincial regimes. Perhaps the Privacy Commissioner would have a view on that, as he is coming after me, but I cannot speak to that question.
Senator Pate: Maybe with more specificity, do you believe that the B.C. regime provides that kind of protection?
Mr. Perrault: My understanding is that the B.C. regime generally follows the 10 broadly applicable privacy principles that are also the blueprint for most privacy regimes in Canada. These principles are an appropriate blueprint. I do believe there is flexibility in how these principles may be made to apply to political parties, and it merits important conversations with parties on that.
Senator Pate: Thank you.
Senator Clement: Thank you for answering the tough questions, even though you’re not really fully able to answer them.
Provincial policies are not a thing. There are uneven privacy policies, depending on the parties. Federal parties are also exempt from the National Do Not Call List and Canada’s anti‑spam legislation. Do you have any comment on that? Should there be greater scrutiny around those issues?
Mr. Perrault: One of the three basic minimum recommendations is that electors should have a right to opt out of certain forms of communications. We know from our surveys that they particularly dislike certain types of calls, like the automated calls or text messages. In many cases, they are not so closed to other forms of communication. Electors should have that flexibility.
Senator Clement: That’s the unsubscribe.
Mr. Perrault: Yes.
More broadly, there is a flip side to the privacy, which is the transparency of communications. If you go through my report, there are a fair number of recommendations that seek to improve — I feel that electors need to know who is talking to them. In many ways, the regime right now, the Canada Elections Act, only allows that when it’s advertising. It does not provide the requisite, in my view, level of transparency when there are text messages and phone calls. They need to know what information the parties have on them, how it’s being used and who’s calling and reaching out. There is a close connection to the transparency of the communications and the transparency and tighter rules on the use and disclosure of personal information. These aspects are complementary.
Senator Clement: Okay. Thank you.
[Translation]
The Deputy Chair: I don’t see any other hands up, so that concludes our time with the first panel. Ms. Lawson and Mr. Perrault, our sincerest thanks to you. You have been immensely helpful in shedding light on the impact and scope of this measure. We hope to see you in the next few months, if possible, to discuss your proposed reforms to the electoral process.
Once again, thank you for being here.
Now, from the Office of the Privacy Commissioner of Canada, we welcome Philippe Dufresne and Jennifer Poirier. We appreciate your being here. We realize that you were invited with little notice. Like our analysts and clerk, you had to respond quickly. We thank you for being here to inform our study of the bill.
You have five minutes for your presentation. After that, the senators will have five minutes each to talk with you, ask you questions or request clarification on what you’ve said.
Philippe Dufresne, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Honourable senators, thank you for inviting me to appear before you today in relation to Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023, and specifically, Division 39, which seeks to amend the Canada Elections Act. Joining me is Jennifer Poirier, Senior Legal Counsel at the Office of the Privacy Commissioner.
As the Privacy Commissioner of Canada, I am charged with protecting and promoting the privacy rights of individuals in the public and private sectors, and ensuring that organizations adhere to their privacy obligations. Currently, the Privacy Act governs how the federal government handles individuals’ personal information, and the Personal Information Protection and Electronic Documents Act, PIPEDA, governs how organizations in the private sector handle individuals’ personal information. Neither act, however, includes provisions that apply to political parties.
[English]
In 2018, my office appeared before the House of Commons Standing Committee on Procedure and House Affairs, PROC, on Bill C-76 which proposed amendments to the Canada Elections Act requiring federal political parties to develop written privacy policies and to publish them online as a condition of official registration with Elections Canada. While this was a good first step towards greater transparency, at the time my office flagged that the proposed amendments to the act did not include effective recourse, clear remedies or provide for an in-depth review of the privacy policies.
For over a decade, there had been calls to improve the data‑handling practices of political parties to ensure that the privacy rights of Canadian voters are properly protected. As early as 2007, there were public concerns from donors and party members receiving unsolicited holiday cards that appeared to target aspects of their religious backgrounds. In 2009, there were complaints to my office and to Elections Canada about the use of automated, pre-recorded phone messages during the election period, and in 2018 my office investigated the use of personal information by Cambridge Analytica and AggregateIQ in connection with political campaigning. In 2019, there was the International Grand Committee on Big Data, Privacy and Democracy.
[Translation]
These reviews and inquiries have demonstrated that privacy is a fundamental right because personal information is intimately connected to our identity and because respect for the right to privacy is essential to our dignity and full enjoyment of fundamental freedoms, including our democratic rights. This is particularly true for voters’ personal information collected by political parties, such as political opinions and voting intentions, because such information is sensitive.
[English]
The proposed amendments to the Canada Election Act in Bill C-47 do not establish minimum privacy requirements for political parties to follow in their handling of personal information or provide for independent oversight of their privacy practices. Rather, the proposed changes would allow political parties and their affiliates to collect, use, retain, disclose and dispose of personal information in accordance with the party’s own privacy policy which they develop and revise at their own discretion.
Given the importance of privacy and the sensitive nature of the information being collected, Canadians need and deserve a privacy regime from political parties that goes further than self‑regulation and that provides meaningful standards and independent oversight to protect and promote electors’ fundamental right to privacy. Political parties should be subject to specific privacy rules that are substantially similar to the requirements set out for the public and privacy sectors in the Privacy Act and PIPEDA while at the same time being adapted to the unique role played by political parties in the democratic process. In other words, privacy requirements that grounded in legislation that conform with internationally recognized privacy principles and that include recourse to an independent third party with authority to verify and enforce compliance and provide remedies in case of breaches.
[Translation]
As an officer of Parliament with a mandate to protect and promote privacy rights, and given my Office’s knowledge and proven expertise in the public and private sectors, I believe my organization has a role to play in this regard. An additional benefit of involving my Office would be to assure Canadians that their privacy rights are being properly considered and protected, thereby building confidence in our democratic institutions.
On that note, I would be pleased to answer your questions.
The Deputy Chair: Thank you very much, Mr. Dufresne.
I’ll ask you the same question I asked the previous witness. How does this measure change your job? Did the Government consult with you in developing this measure?
Mr. Dufresne: We were not consulted by the government. The measure doesn’t change our job, because it doesn’t give us any jurisdiction over the implementation of these obligations. We currently have no role and this amendment does not give us one. Following the passage of Bill C-76, we worked with the Chief Electoral Officer of Elections Canada to provide comments and recommendations to political parties on fundamental privacy principles. However, I do not have a mandate as Commissioner under this Act and the proposed amendment.
The Deputy Chair: Elections Canada officials were telling us earlier that there are no consequences for political parties for non-compliance and non-enforcement. Do you share that view?
Mr. Dufresne: The bill says that political parties must manage this information in accordance with party privacy policy, subject to the current Act and any other federal statute. There is no indication of the mechanism that must be used. There is no indication that there could be a complaint to my office or to the Commissioner of Elections. So there is some ambiguity, and that’s one of the issues I’m raising. I think that mechanism should exist, because it builds confidence in Canadians. There is a principle, but what happens if there are questions about it? Even when a concern is raised and the complaint is not upheld, it strengthens the trust of Canadians. People see that there’s a mechanism and are reassured that things have been done properly.
The Deputy Chair: I have one final question before I turn it over to my colleagues. What recourse does a citizen have, should they find that private information has been used for anything other than political purposes?
Mr. Dufresne: At this time, the bill is not clear in terms of identifying what remedies exist. No remedies are provided. The Chief Electoral Officer (CEO) can refuse certification or withdraw it if a plan is not provided. That was already the case with Bill C-76. Here, if there is an allegation that a party has not complied with this policy, I don’t see what recourse there is, other than to go to the person responsible within the political party itself to raise this concern. To me, that’s not an independent mechanism; it’s more like self-regulation.
Senator Dalphond: Welcome, Mr. Dufresne. If I understood your speech correctly, you fully agree with the remarks made by your predecessor, Mr. Therrien, before a House of Commons committee in June 2018. Do you still agree with the potential solutions that he put forward? Is that the policy you’re proposing?
Mr. Dufresne: Essentially, the two main themes were raised; there must be some obligation regarding the content of these policies. The current obligation is that there are policies, and that does achieve some transparency objectives, but there is no obligation that the content must meet the 10 principles of the Private Sector Privacy Act. I share that concern, and I think that having a mechanism is essential. My office doesn’t necessarily have to be that mechanism, but it is a possibility. It can be achieved through the Canada Elections Act or the Privacy Act.
What’s important, in my view — and I agree with my predecessor — is to say that the requirements must exist and they must be objective, sufficient and tailored to the reality of political parties and privacy laws, both in the public and private sectors. They can adapt to all of that. We’re dealing with large companies as well as small and medium-sized businesses, and all of that must be dealt with appropriately, but there must also be an independent mechanism. That’s important for the respect of rights and for trust. Trust is one of the pillars of my vision for privacy, as it will support not only privacy, which is in itself sufficient as a fundamental right, but also democracy itself.
Senator Dalphond: In fact, to follow up on what you said about the importance of a third party supervisor, the bill tells us that the third party who is trying to supervise will be “taken out of the picture.” Since none exists at the federal level, while there is one at the provincial level, they are told: You have no role here.
Here is my second question. I know you don’t have an obligation to check the privacy policies that were adopted [Technical difficulty] but they do have an obligation to post them on their websites. I did it myself. I went and printed them out and I imagine you did the same thing. Do you believe these policies are sufficient to adequately protect Canadians?
Mr. Dufresne: Our office received a complaint in 2019 in relation to such practices. My predecessor issued a ruling stating that we did not have jurisdiction to investigate. We do not have jurisdiction to rule on the adequacy or the inadequacy of these policies. My predecessor refused to do so in that context, while pointing out the absence of rules. So, by describing the current situation, we are recommending that it be different, but the law, for the time being, gives us neither the mandate nor the authority to adjudicate. That applies to me as well.
Senator Dalphond: I was asking for your opinion as an expert on the issue. I understand that you are saying, “This falls outside our jurisdiction” and that you are not expressing an opinion. Thank you.
[English]
Senator Pate: Thank you to the witnesses for your work and for being with us today.
You’ve just responded to Senator Dalphond. Have you been consulted by the parties about what the best practices could be? If so, what advice have you provided to the parties? If you’re able to share that with us, that would be great.
Of the provincial jurisdictions, which are the privacy and protections, if any, that have some protection for the public?
Mr. Dufresne: For the second part of your question, B.C. and Quebec are provinces where there are some regulations in the context of provincial parties.
In terms of the consultation, working with the Chief Electoral Officer — and this is something we do in the Office of the Privacy Commissioner in terms of working with counterparts and other organizations, because there are some overlaps, and this is one, so we have provided advice and recommendations on best practices for political parties to follow.
This was done after Bill C-76 was adopted. At the time, the requirement was only to publish those policies with those transparency elements. We put forward, essentially, the 10 privacy principles that exist in PIPEDA, including ensuring accountability; ensuring that the purposes are identified and that the use is done for those purposes; ensuring consent; limiting the collection to what is necessary to the objectives; and limiting use, disclosure and retention. In addition the principles of accuracy, having mechanisms whereby the information can be up to date, where this could be raised and where corrections could be made. Safeguards, making sure that this information that is, in many cases, quite sensitive, as we can imagine in terms of political opinions and views, is safeguarded in an appropriate manner and that keeps up with times and technology. Openness, having transparent, clear, accountable processes. Easy to understand. Individual access. Individuals being able to raise questions and understand and amend information there; and challenging compliance, which is providing a mechanism. We’ve provided those comments at a high level in our work with the Chief Electoral Officer.
Senator Pate: In your opinion, which of the parties conformed to those principles?
Mr. Dufresne: As I indicated in my response to Senator Dalphond, we received a complaint about some of those practices, and my predecessor found — and I agree — that currently, legislation does not give us the jurisdiction to go into this investigation and make these findings and conclusions; so we have not done that.
What we’ve done is provide guidance, again in the unique situation, because we regularly provide guidance under our legislation where there is a binding obligation where we have a role.
In this instance, we don’t. But working with Elections Canada, we put forward these best practices internationally that we would hope political parties would follow, but these are aspirational principles in the circumstances. In my view, they should be principles that are supported in the legal regime.
Senator Pate: It sounds like you’re being incredibly diplomatic, but it sounds like none of the parties conform.
Mr. Dufresne: We don’t have the mandate to look into it and make a conclusion whether they’re complying or not. There should be an obligation, and there should be a third party — whether it’s my office, and we would certainly do this work if we had the jurisdiction — whether it’s elsewhere in the Elections Canada context. What’s key is you have this third party so you can get the answer to the important question that you’re asking. That’s why a third-party mechanism with legal authority to do this would be important.
Senator Pate: Previous witnesses had an opinion that we probably couldn’t do it in this legislation. Do you see any way we could amend this legislation, given that we’re not able to amend budget bills? It is difficult to imagine.
Mr. Dufresne: We’ve made recommendations, in the previous situation with Bill C-76, saying here is how you could amend this regime, putting principles, for instance, to say when a party adopts a privacy policy, the definition of privacy could be one that meets the 10 principles in PIPEDA. There are drafting ways where you incorporate the principle of use for appropriate purposes that a person would reasonably anticipate these things, and you can legislate a role for a third-party decision maker. In our proposal on Bill C-76, we proposed that my office would do it. That’s certainly a possibility. There is another way. We could do it through other decision makers.
If it’s done through another decision maker, the other element I would raise is that where there is a key privacy component — and there is here — my office would certainly be prepared and available, if we’re not the decision maker, to play a role in providing guidance and advice.
That exists in current legislation. Recently the Senate amended, and Parliament ultimately adopted, Bill C-11, where the CRTC has to consider privacy aspects. They would decide that, but there is a possibility for us to intervene and make representations as an interested party. That is another way of doing it. The key point, in my view, is that the standards be there, are up to international privacy standards, are binding and are adapted to the reality of political parties, because that is important. Political parties play an important role and the regime can be such that it frustrates this. Also that there be an independent decision maker.
Senator Batters: Thank you very much for being here today on short notice and providing us with this information. The federal government has drafted this provision so that this regulation would be subject to the oversight, such as it is, by Elections Canada rather than by you, the federal Privacy Commissioner. Even the Chief Electoral Officer thinks that you should be the one overseeing this type of provision and not him, I assume you agree with that.
Mr. Dufresne: That’s a decision that has to be made by Parliament. I’m certainly prepared to do it. We have the mandate. I am the agent of Parliament responsible for the protection and promotion of fundamental privacy rights, so we’re certainly able, willing and ready to take on this responsibility if it’s given to us. That is a decision for Parliament, and I understand that political parties have to be regulated in a way that considers their realities, that’s important. It can be done through privacy laws or electoral laws, and it can be done and should be done, in my view, with an independent decision maker.
Senator Batters: The Liberal government recently introduced Bill C-27, which contains the consumer privacy protection act, yet the Liberal government chose to include this provision, which greatly impacts voter privacy, under a massive 430‑page budget implementation act with a provision that seems toothless. Some have contended that Bill C-27 would, perhaps, be a better place for this type of regulation. What do you think about that?
Mr. Dufresne: I’m looking forward to being called to the other place, in the INDU committee, to make recommendations on Bill C-27 as a whole. It does not include provisions on political parties, and in the predecessor version of Bill C-27, which was Bill C-11, my predecessor at the commission made recommendations that it should include political parties under Bill C-11, which was the predecessor to Bill C-27.
It’s a possibility to do it under the private sector privacy legislation, in this case, Bill C-27. It’s also a possibility to do it under electoral legislation, which is the approach that is now being proposed and that had been proposed with Bill C-76. There are different options.
My recommendation, in this context, is that it is key that the obligations are commensurate to international standards on privacy, that it not be self-regulation, and that there is an independent third party to review them. This could be done with Bill C-27, and it could be done through the Canada Elections Act.
Senator Batters: Bill C-76, which you referred to, was a very large but stand-alone bill that dealt with electoral reform of many different types, including something that could have been about this.
Having a massive budget implementation act, this is just one small part of the parts that we as the Legal Committee are asked to examine here. The Finance Committee has overall oversight of the entire budget implementation act. But this is just a small part of what we’re being asked to study in a very short time frame. If this were a stand-alone act, we would get to have many different witnesses, perhaps from political parties or other jurisdictions as you referred to in B.C. or Quebec, that sort of thing, that provide voters privacy.
For those reasons, would you agree that a stand-alone bill, which Parliament then has the ability to look at in a more detailed fashion than this, would be a better mechanism to do this?
Mr. Dufresne: What I am encouraging parliamentarians to do is make sure these issues are considered. I’m grateful for the opportunity to be able to be here today and raise those points. Those points are important whether it’s done in this context or whether it’s done in the context of a stand-alone legislation.
Privacy rights are so fundamentally important to Canadians. They’re important to all of us as individuals, and they’re also important to and support the democratic process. Privacy is not an obstacle to the public interest, it is something that supports the public interest. What is key for me is that whatever legislation is ultimately adopted, it ought to reflect this. The importance of privacy is a fundamental right, key standards, an independent decision-maker mechanism and having the benefit of having as much information as you can and need to have as parliamentarians to make those important decisions that are going to have an impact on all of us.
Senator Klyne: Welcome to our guests. I think you answered my question, but the previous questions make me want to ask again.
In your opening remarks, you referenced 2018 and Bill C-76, which proposed amendments to the Canada Elections Act requiring federal political parties to develop written privacy policies. However, your office flagged that the proposed amendments to the act did not include effective recourse, clear remedies or provide for in-depth review of privacy policies.
You went on further to say that proposed amendments to the Canada Elections Act in Bill C-47 do not establish minimum privacy requirements for political parties to follow in their handling of personal information or provide for independent oversight of their privacy practices. Rather the proposed amendments or changes would allow political parties and their affiliates to collect, use, retain, disclose and dispose of personal information in accordance with the parties’ own privacy policy, which they develop and design at their own discretion.
I’ve heard you say a number of times that Canadians need and deserve a privacy regime for political parties that goes further than self-regulation — which makes sense — and provides meaningful standards and independent oversight to protect and promote the electorate’s fundamental right to privacy. You’re citing specific privacy rules that are substantially similar to the Privacy Act and PIPEDA.
I was going to ask you, with the amendment under discussion today, would there be any remedy or consequence if a federal political party collects, uses or discloses personal information in a manner contrary to their own privacy policy? I think, from your opening remarks, that the answer would be no. I was going to ask a second part of that question, which is, if so, would your office have any role in enforcing that remedy or consequence? On hearing some of your answers to my colleagues, your answer would be should, could, but can’t. I find that to be a huge disappointment, given your role. What are your comments to this committee in terms how we could somehow fulfill our role reviewing and advising on this bill?
Mr. Dufresne: You’ve highlighted they key points of my testimony today, senator. There should be binding obligations in terms of privacy that would apply to political parties, those should meet standards intentionally, those are reflected in the ten principles under PIPEDA, and there should be a third-party independent decision maker.
I say this because privacy is a fundamental right and we need to treat this as such. This is something that should not be sacrificed to innovation or efficiency, and in fact, it’s not an obstacle to any of those things. It’s not an obstacle to the public interest. In the context of democracy, and certainly essential, I also said that whatever regime is adopted has to be tailored and responsive to the needs of political parties who play a unique role in our democratic process. It’s important that we don’t create disincentives to individuals participating in democracy, but we can do that while protecting privacy. In many ways, protecting privacy supports the public interest, makes it more efficient, makes voters and electors more trusting of whom they share information with because they know what will be done with it. It strengthens our regime, it will ultimately strengthen the political parties themselves and it generates trust. Canadians trust in their institutions, in their political process and in their democracy itself. For all of those reasons, these are elements that ought to be top of mind.
Senator Klyne: In the context of your mandate, help me understand. This is in your wheelhouse and what is the barrier to someone throwing this over the fence to your office to prevail over?
Mr. Dufresne: As an agent of Parliament, my team and I are fulfilling the mandate given to us by Parliament via legislation. So we currently have that mandate for the public sector in the Privacy Act, and we have that mandate for the private sector under PIPEDA. In some instances, the provinces with substantially similar legislation will have jurisdiction. We work very closely together with them.
But we don’t have a mandate to look into the privacy practices of political parties. That mandate would need to come from legislation, from Parliament, and that is not something Parliament has done to date. It’s certainly something that we would be able to do with an appropriate regime and so on.
It’s not the only mechanism, but as the agent of Parliament responsible for the protection and promotion of fundamental privacy rights, it is something that we would be prepared to do, being mindful of the need to understand the realities of political parties and the political process.
It’s doable as well under other legislation, but the key point is that, if the decision is made by Parliament that it should be Canada’s Chief Electoral Officer or other body dealing with this, for reasons that Parliament would determine, it would be beneficial for my office and me to have the ability to provide guidance, recommendations and submissions to that other person.
There are a lot of different avenues, but the key thing is to have strong, effective principles and obligations, and credible, fair third-party review mechanism.
Senator Klyne: Thank you.
[Translation]
Senator Dupuis: Thank you for joining us, Commissioner.
I have three questions for you. My first question is, when Bill C-47 allows political parties to collect personal information in subsection 385.2(2), do you see anything in the very nature of a political party? Is there a key distinction that a political party should not be subject to the same privacy rules as a government?
Are federal political parties so different in essence or such a unique type of structure that they cannot be subject to the same rules as governments — I’m not talking about private companies — under federal law?
Mr. Dufresne: In terms of principles, no, there’s no barrier to that. Privacy principles, whether they apply to government or private enterprise, those 10 principles that we talked about, are flexible, technology-neutral principles. They stipulate the following: Here are things that we want and need to see in the handling of personal information, whether that’s consent, appropriate purposes, transparency, accountability, all of those things.
What’s different about political parties and government is potentially the size, the resources, and the aspect, that is, whether it’s sophisticated or not. Certainly, if you’re talking about candidates and constituency associations. There may be that element; you could say that government has the resources and the structures, but so does the private sector. So, there may be a fear for someone who could say, “If I want to be a candidate, I’m on my own, but I have volunteers, and if I’m faced with those types of obligations, it’s going to be too onerous.” I assume that concern exists.
My response to that concern is that a plan can and should take that into account. It’s the same thing in the private sector. There are SMEs and large organizations. The plan needs to be tailored. There may be additional supports, and my office provides advice to organizations that need it. It may also be that some obligations don’t apply, because the political party may require more flexibility. Perhaps the role of the political party requires a more frequent, intimate, or different types of information exchange.
All of this can and should be considered, but in my view, it doesn’t mean that there will be no constraints or recourse.
Senator Dupuis: My second question is about the fundamental right. You stated that the right to privacy is a fundamental right.
Can you be more specific about the references that would frame the right to privacy as a fundamental right?
Mr. Dufresne: Yes, I did. When I was nominated for the position of Commissioner, I told the Senate and the House of Commons that my vision of privacy had three pillars: first, privacy as a fundamental right; second, privacy that supports the public interest and is not an obstacle to the public interest; and third, privacy as a generator of trust by Canadians in their institutions.
Privacy is a fundamental right recognized in international human rights instruments, such as the 1948 Declaration of Human Rights, which recognizes it as a right, along with the right to family and personal life; it goes back even further than that.
The Supreme Court has recognized privacy laws as quasi-constitutional in nature, because of the key link between the right to privacy and the right to dignity for every individual, but also because of the support of other fundamental rights, whether it be the right to vote, the right to freedom from discrimination, or the right to association.
In many ways, privacy is a guarantor of liberty; that should be treated with great respect and be protected. That’s what I’m talking about.
If there is a conflict between privacy and other interests that are not fundamental by nature, privacy should take precedence. However, these conflicts should be rare, because we should work primarily to avoid having to make these choices. Privacy will often not be an obstacle; on the contrary, it will provide support for the interest and the issue.
Senator Dupuis: So, is it your opinion that, based on its purpose set out in subsection 385.2(3), division 39 of Bill C-47 is intended to be a roadblock to the current litigation on whether federal parties should be subject to provincial legislation?
Mr. Dufresne: I wouldn’t want to comment on the intentions behind the bill, but the “Purpose” clause certainly indicates what the purpose of the bill is. It says that the purpose is “to provide for a national, uniform, exclusive and complete regime applicable to the registered parties . . .”
That’s the proposed purpose and it’s subject to approval by Parliament.
[English]
Senator Jaffer: Privacy Commissioner, while I’ve been sitting here, I am really worried, but that was in the past and too many years ago. But I have run twice, and we received tonnes of training on everything else, but I don’t remember getting any privacy training about protecting the rights of people, which is a very important thing now, I agree.
But do you send anything out from your office about privacy to the party or to the nominated candidates? Does your office do anything like that?
Mr. Dufresne: Senator, we’ve created a guidance document that is publicly available that sets out the best practices that political parties should follow. There are 10 key principles. We give examples as to what they could mean in their context in terms of putting into place those privacy best practices.
Without the mandate to formally take complaints over this or to formally provide guidance, we have not, to my knowledge, engaged more directly with political parties in detailed situations. As I’ve indicated, we’ve had complaints in the past regarding which we found we had no jurisdiction to take it on.
However, working with the Chief Electoral Officer, we have put forward those key principles in terms of what should be done. The Chief Electoral Officer has exchanges with the political parties.
What we’re putting forward now is that the obligation is to develop the policy, publish it, register it, make it known and to set out how you’re going to do those certain things. Then there’s the addition that they have to comply with the policy they’ve set out, but there is no mechanism, then, that follows.
To the element of training that you highlighted, as a matter of privacy best practice, it is essential that not only do you have organization of policies that are up to date, but that training is done. It is important for all involved to be up to date and to have that awareness of best practice.
Senator Jaffer: As a candidate, I always felt that I had the mandate of Canadians to go up to them — normally, in private life, you wouldn’t do that — speak to them, intrude in their private time and knock on their doors. Many didn’t like it, because they just don’t like that, but I felt I could because I was running.
When I listen to all this today, I think that I should have had some training on this. But, as you said, there is none. That’s one of the things that you should be getting a mandate for the elections office.
Mr. Dufresne: Yes. It’s not to say that you would no longer be able to do those things as a candidate. It really would be to say: What information are you asking the electors to give you, and are you telling them why you need this?
One of the examples that came up is that if you’re asking for information to support a petition, you’re getting this personal information for that purpose and the person is happy to give it to you, it doesn’t follow that you have the authorization to use it for any other purpose in terms of micro-targeting or otherwise. It doesn’t follow that you have the ability to share it with a third party or social media.
These are the types of privacy protective practices that the regime brings. We had a recent decision at my office dealing with Home Depot and the practice when people ask for an online or printed receipt. If they chose an online receipt, some of their personal information was shared. Individuals didn’t expect this. It was not something that was obvious to them. Our finding was that this was not compliant. Our recommendation was to make it very clear and obtain consent, if that’s what you want to do. Maybe people will agree to it and maybe they won’t.
These types of practices are enhanced with stronger privacy protection and more awareness.
Senator Jaffer: I’m learning a lot from you. I have a follow‑up question. You mentioned some breaches, but have you seen any terrible breaches made by candidates — I’m not talking about parties — that you need a mandate to fix?
Mr. Dufresne: We’ve seen historical situations in terms of not so much political parties, but the situations of Cambridge Analytica and others — which I mentioned in my opening statement — where use was being made by third parties of electors’ information.
In terms of political parties, without the jurisdiction to investigate, we’re not receiving this information. The Chief Electoral Officer has made a recommendation in terms of bringing privacy protection. In it, he talks about certain issues that have been raised with their office: unsolicited communication for different purposes, erroneous information, the desire to correct the information that is there.
That is some of the information that is there. If the Chief Electoral Officer or I had this jurisdiction and mandate, this is the type of information we would be able to gather and then provide guidance about. The mandate is protection and promotion of privacy. The goal is not to have complaints, investigations and so on. Ideally, promotion, prevention and guidance will prevent a situation from occurring in the first place. Complaints should be few and should help to highlight and clarify certain elements. For the moment, without the mandate from Parliament to do this, it’s not something that we are able to do.
Senator Clement: I’m going to say something super controversial. I love politics. When you say that now, people say, “What?” An increasing number of Canadians find that distasteful. Political parties get the backlash from that. There’s a whole lot of backlash against political parties, yet political parties are fundamental to how we do democracy in this country.
I’m looking at this from different perspectives. I hear that the government didn’t approach you to seek advice before drafting this. It’s a little unsettling.
In this current iteration — the one we have in front of us — what does this add? What does this do? Will political parties be more challenged by this or does this actually protect Canadians’ privacy?
I’m horrified by the fact that a lot of Canadians press — you know when you get these “I accept all these terms” and there are three pages of legalese? I admit that sometimes I accept without having read it because I want to get to the next step. It’s scary when you think about what that really means.
How does this section help? Is Canadians’ privacy protected by this addition? Are political parties now more hindered in their process to try and do democracy? That’s a big question, but I’m trying to figure out: Is this good? How does this help?
Mr. Dufresne: With regard to your comment about finding it difficult in terms of privacy policies and so on, I want to echo that this is something we are looking at. How can these consent policies be as user-friendly as possible? How can the information be available, meaningful and understood? How can it be easy to opt out if you’re going to opt out? Otherwise, we’re downloading on citizens those obligations. We all have a role to play. We all have to have best practices. Ultimately, organizations have a role to play as well, and they need to make it as easy as it can be.
In terms of the role of political parties and the importance of that process, I agree. I hope I made clear in my opening remarks that whatever regime should take into account the unique role played by political parties. It’s important that our democracy functions, that people can run in elections and that political parties are able to play their role. It’s an important role and an important public service that has to be encouraged.
In terms of what this does, it indicates that, right now, political parties have to register and make those privacy policies public. They have to contain certain elements of information as to how they’re doing certain things. There are transparency elements there. But it doesn’t mandate what the content of those policies has to be in terms of how you’re going to use it and what is acceptable in terms of privacy practices.
This new bill indicates that candidates and political parties will be able to use and disclose information as long as they comply with those policies. There’s a statement that compliance with those policies is important; however, there’s no recourse and no mechanism if there is disagreement about that.
There are two elements of my recommendation to you today: One, it should not simply be up to a political party — or any organization, frankly — to set what the privacy requirements will be. There should be some baseline guardrails, and those are the internationally recognized privacy principles. We have them.
Second, even if the privacy principles are good, it’s necessary to have a third party, independent mechanism. Sometimes there will be disagreements about whether someone is complying and you will have an allegation of non-compliance. It doesn’t mean that it’s founded, but there’s an allegation. It’s important to have a mechanism for that issue to be resolved because it upholds the law and generates trust. It indicates to Canadians that I’m not only trusting that this will be done — and the decision maker isn’t the organization that I’m complaining against. The decision maker will be independent. I can make my views heard and then I get a decision. It may be a decision that is favourable or it may not be, but it helps to clarify those principles.
This treats privacy as a fundamental right, supports the public interest and generates trust. Those are the key elements that I would submit to this committee ought to be considered.
Senator Clement: I understand your principles. You’ve outlined them. Should they be added here or — to come back to the questions raised by some of my senator colleagues — do we need distinct, separate legislation to deal with the issues you’ve raised?
Mr. Dufresne: We made recommendations for Bill C-76 of specific legislative amendments that could be applied in this context. We’re talking about things like defining a policy as one that complies with the principles of PIPEDA. We’re talking about having a provision that says complaints can be filed with X entity. In our recommendation, the entity was the Privacy Commissioner. It doesn’t have to be that. There are legislative ways of doing that.
Senator Clement: Here in this context?
Mr. Dufresne: Well, in any bill. I understand the issue of it being a budget bill. They raise different considerations to be addressed by Parliament.
Certainly, what I’m saying is, as a matter of legislative amendments, there are mechanisms. There are ways of amending legislation. You’ve raised the issue of the budget bill. That’s a separate issue for determination.
[Translation]
Senator Clement: Thank you, Mr. Dufresne.
Senator Dalphond: I’d like to follow up on certain comments that have been made, particularly by Senator Dupuis. You said that two provinces, Quebec and British Columbia, have provisions that specifically state that they must comply with the Privacy Act. In those two cases, are there specific provisions? How have they been tailored to political parties as opposed to the common regime that applies to government on the one hand and the private sector on the other?
Mr. Dufresne: From what I understand, British Columbia treats political parties like organizations. That’s equivalent to what is provided in the federal legislation for the private sector. Quebec has made amendments to the Election Act that provide for certain obligations. There is also the Act respecting the protection of personal information in the private sector. The Commission d’accès à l’information, or CAI, will therefore have some jurisdiction. Mechanisms are in place. From what I understand that, the political parties’ realities are also taken into account, but they are governed by the law and there’s a mechanism and a remedy.
In British Columbia, a case is before the courts to determine whether this legislation can apply to federal political parties. It certainly applies to provincial political parties.
Senator Dalphond: Thank you very much.
The Deputy Chair: Mr. Dufresne, Privacy Commissioner, and Ms. Poirier, senior counsel, we thank you. You and the previous witnesses have put us on an interesting track for the study that we could eventually do. We see that there’s a bit of a gap in terms of liability. I think it would be a good idea for the committee to look at that.
Thank you very much.
Esteemed colleagues, we need to address the minister’s response, of which you have a copy. Therefore, we will continue the discussion, following up on the motion you passed at the last meeting. Since it was passed in open session, I would suggest that we remain in open session, because we’ll be discussing the same topic.
You passed a motion to request that the minister appear on Bill C-9, the Judges Act. You were informed, as were all participants, that the minister declined to appear again on this bill. However, he will be here in two weeks for consideration of the budget.
Since this motion belongs to you, we need to decide now how we’re going to dispose of it, based on the minister’s response to us.
[English]
Senator Batters: First of all, as the critic of the bill, and this wasn’t even my motion that I initiated, Senator Dupuis asked last week — and I thought it was a very smart recommendation, because we heard from many witnesses who proposed different amendments, then I thought that the minister was working on amendments to the bill.
Then Senator Dalphond, the sponsor of the bill, clarified that, no, if he had been understood to be saying the minister was working on amendments, he was not, or that’s not what his understanding was.
Then Senator Dupuis asked that the minister come back. She asked if this is something that has been done before. The answer came back that, yes, it is not common, but it has been done before. It was phrased as an invitation. It was perhaps a little stronger than that. It was the result of many different witnesses saying that they wanted amendments, many senators — in the course of our questioning — realizing that there are certain parts of this bill that need amendments so that we can do our proper sober second thought work on this.
Then we asked the minister to come back, and he declines. That’s actually unacceptable. Generally, the Minister of Justice has been good about coming in quick fashion when we have asked him to come on a bill. Obviously, we’re wanting to hear from him to make sure that we can make this bill the best that it is. We have heard from many witnesses. Many of us have posed questions that have resulted in us finding different problems with this bill.
To then have the minister simply say that he declines to come, I don’t know how badly he wants this bill in a quick fashion if he’s refusing our, I would say, strong invitation on this. I don’t think it’s a good way to proceed on this. It makes me concerned.
We’re trying to proceed as fast as we can and do the best job we can, on this bill. I’m not happy about this state of play as we are right now.
Senator Dalphond: I understand that there was an invitation made at the previous meeting of the committee, as Senator Batters put it.
In the meantime, I wrote to steering. I want to report some discussions we had at steering. On Monday, I wrote to the steering committee to say that, after having met many of you privately and listening to the comments and questions that were made publicly here, that I think — especially if I consider that Professor Devlin came and testified at the very end of the process, while the representatives of the judicial council came at the very beginning of the process, that many questions were related to the fact of how does it work in practice? What happens when a complaint is filed? If it is dismissed, do they get a reply or not? What kind of reply or information is provided by the — I call it by the new title — screening officer? Some other questions were about how it works at the review committee, the chair of the review committee, all of these types of things.
I thought about it and wrote to steering committee colleagues, to say I think many of these questions are about the working of that system and the best witnesses are representatives of the judicial council, and not the minister, because this is a process that goes outside the department. It is not something that the minister has any control of or say in. Judicial independence is run by judges with their own staff. The only connection is they get about $2 million per year from the government to run the council.
I thought maybe the best thing would be to call these officials back. After we spoke together at steering, I called them to find out if they were willing to come back. As you saw this afternoon — I just saw it — obviously, they said yes since they are coming back tomorrow to answer many questions. After we have these witnesses before us and have asked them many questions, maybe we can revisit the issue about whether we still think an invitation to the minister is necessary.
I want to refer also to the fact that we got a letter from the judicial council that Mark Palmer, the committee clerk, shared with us. It was addressed to the chair, but we got it last Friday from Mr. Palmer. I would like to draw your attention to something said in it — I think the minister also said it, but I will repeat it to make sure it’s well understood because the letter is interesting to read. The fourth paragraph of that letter refers to the fact that:
. . . Bill C-9 is the result of a number of consultations and cordial exchanges held over a period of several years by officials of the Department of Justice, on the one hand, and representatives of the Council and of the Association on the other. While it is very difficult, if not impossible, to reach a perfect consensus on all components of a bill, the Council and the Association each made compromises with respect to their initial positions and, in the end, agreed amongst themselves that the bill, in its current form, met their respective objectives.
This is not like Criminal Code amendments, or the usual bills we get from the Department of Justice. It is a different kind of bill. The drafting and the content of this bill were mostly decided outside the department. Then the department will meet and work in a partnership and they draft the legislation.
The representatives of the Canadian Judicial Council have a really important role to play. Tomorrow, they will be able to present more information for sure. We should be mindful that this is a special situation for the minister. To a certain extent, his department is drafting this. He is the sponsor of the bill in the House of Commons, but this is not exactly a bill like other bills, where it represents the government’s views of things and where the government has more options to amend and to change it, et cetera. These are the two points I wanted to make.
[Translation]
Senator Dupuis: I heard Senator Boisvenu tell us that we all knew the minister had refused to appear again before the committee. I’d like to know when we were given that information. I understand that officials from the Department of Justice have agreed to appear again.
Senator Dalphond: No, they represent the Canadian Judicial Council, the same witnesses, the Commissioner and the general counsel.
Senator Dupuis: Okay. I just want to clarify that the reason I had suggested that the minister come back was because I had urged the bill’s sponsor, Senator Dalphond, to check with the minister to see if he wanted to propose amendments to the bill himself in light of the testimony we had heard. As I understand it, the answer is no. The minister refuses to appear; he has his reasons and I respect them, but I just wanted to check whether this information had been officially sent to us.
[English]
Mark Palmer, Clerk of the Committee: Actually, it was just this evening, in Senator Boisvenu’s speech, that it was disseminated to you.
[Translation]
You are being informed now and it’s being announced that the minister has declined the invitation.
Senator Dupuis: Thank you.
[English]
Senator Batters: First, in my 10 years on this committee, I’ve never seen a Minister of Justice decline an invitation to testify. I’m sure it’s not something that this committee did lightly. We want to give the minister the chance to explain why certain amendments that we think are necessary, or that our witnesses, including the President of the Canadian Bar Association, who suggested quite a strong amendment to this bill, think are needed.
Also, I note that the sponsor indicated how he had been having different meetings or consultations with others on this committee about how some of these different things could be resolved. I didn’t have any of those conversations with the sponsor about this, although I am the critic.
Many of these different amendments that are being proposed, or thought about, or discussed by our witnesses, are things that are entirely within the capability of the Justice Minister to act on and are not anything that would involve judicial independence or those types of things. They are simply a matter of choices that he and his government have made in drafting this bill. Some of those include the fact that the sanctions paragraph does not include a suspension with or without pay. I asked the minister about that. However, he deferred the question to his official. We’ve since had a discussion with other witnesses and we’ve also found out that many provinces do allow that. We recently heard from the Ontario Judicial Council about this and received some research from the Library of Parliament that sets out the provinces that do allow these types of sanctions. That is a measure.
As well, there is the amendment proposed by the CBA president. Other witnesses have proposed substantial amendments, and Senator Clement has raised some important points dealing with the diversity paragraph which has the phrase “as far as possible,” that doesn’t seem to mean anything and seems to be quite insulting.
There is also the fact that there is a provision that has “shall” and “may” in the same provision. These things are clear problems with this bill that we need to rectify. We shouldn’t take a big government bill that has taken 50 years to draft and complete without ensuring that we have these things taken care of.
It is the minister’s choice if he doesn’t want to come back, but that says something about how he’s going to view amendments and if he’s going to be particularly accepting of them. I don’t think that speaks very well of this.
[Translation]
Senator Dupuis: I’ve been a member of the Standing Senate Committee on Legal and Constitutional Affairs since November 2016, and I can recall at least one other occasion when a minister declined to appear before our committee. In fact, that led us to include a rather pithy sentence in a report we submitted to the Senate on our study of the bill in question. In that case, it wasn’t that the minister was refusing to appear again, they were refusing a first appearance.
That said, we have a bill to deal with and I feel we need to deal with it and there’s no reason to delay the work we need to do. If committee members believe that amendments are needed, we will consider them, but I don’t feel we should delay this bill in any way.
On the other hand, I note that what was originally presented to us as a bill that was — I’m aware that this is happening outside the Department of Justice, that it’s happening based on an agreement between two constituent groups of the federal judiciary, that it was presented to us as a consensus and that the government agreed to introduce Bill C-9. Let’s not forget that not so long ago, a few weeks ago, we received a letter from one of the two parties in question, the Canadian Superior Courts Judges Association, which told us that, in fact, the agreement no longer stands. But that’s another matter.
I feel that can be noted, but I’d be more inclined to think that my request — my motion was to invite the minister to appear, not to delay the bill, and I believe that once we have the answer, it’s up to us to continue the work. The bill is before us. We have a job to do, and it’s up to us to do it.
[English]
The Chair: Let me make a couple of observations and make a suggestion for a couple of ways forward.
First, it is the case that the minister has come once. I think in the dialogue around a second invitation to the minister, which the committee adopted one or two weeks ago — I think a week ago — in the interim, Senator Dalphond, I think to assist the committee, suggested that it was potentially the case, that officials from the Canadian Judicial Council would be able to answer our questions or at least some of them while we awaited what we might hear from the minister. It is possible that will happen. It is possible as well that we will say, no, we need more and the minister is the person to get it from.
I want to add one other thing before I mention the possibilities. I think Senator Dalphond is right that this is a slightly different equation of a bill that has been delivered to us by the government but is the product of a process that tries to be respectful of judicial independence and deference to the judges to imagine and bring forward proposals for the government to try to improve and streamline the judicial discipline process. That’s a little bit more delicate equation. It doesn’t mean we can’t fulfill our parliamentary responsibilities if we think the bill isn’t good enough and things should be changed. I think Senator Batters has identified some possibilities along those lines perfectly legitimately.
One option for us might well be to hear these witnesses tomorrow, decide after the meeting tomorrow whether our questions have been sufficiently answered. I think there is a possibility, but there is a possibility that they won’t be. And make a decision then whether we will insist on the minister coming and send such a message, follow perhaps the guidance of Senator Dupuis and move to clause by clause saying we’ve learned enough.
I will say parenthetically that I don’t want to say that this is at all our fault, but the way in which we tend to proceed is often to have the minister come first and be the proponent of the bill. In this case, curiously enough, I think we have learned more since the minister left from people who are knowledgeable, thoughtful and reflective and have suggestions. There may be a strategy that our committee should think about — steering would be, I think, the main group responsible — that for some of these bills we ought to have the experts first to inform us of the shape of the bill and in their judgment some of its shortcomings and then make the minister answer. We would be more informed when a minister comes.
I’m not saying we should do that as written in stone but it is an idea. Quite frankly, on this bill, it would have been nice to have heard Professor Devlin and a couple of those folks nearer the beginning. I would say the same thing about the study of Bill C-28 — that we would have benefited from people who knew in rich detail the criminal law implications and then talked to the political folks. I’m identifying two recent examples for us to at least think about.
I guess I want to invite the question, and we are running out of time, whether you would agree to defer the decision on this until after we hear from the CJC officials, with the very realistic prospect we will say we still want more, or the very realistic prospect that we say we think we now have enough and we will move on.
[Translation]
Senator Boisvenu: You have to have a strategy when you call a minister, especially when they say no. I think we could actually have one more argument if we hear from the folks at the Canadian Judicial Council. If we’re not satisfied with the questions or if their testimony raises even more questions, we would have a good argument to tell the minister that he must appear, and that it’s not an invitation. We’ll have to be more incisive and make sure that we provide a reason for our invitation, basically.
[English]
Senator Clement: I agree with your pathway forward, Senator Cotter. I am more sufficiently now aware of the fact that this was a consensus and not coming from the government. But that then means that we’re held to a higher standard, I think, because the public is watching and we don’t want there to be a perception that there was something brokered there by the very people who are to be disciplined. I have some concern about that, and I just want to make sure that we’re proceeding in a way that applies critical thinking to this, because we’re held to a different standard when it is not coming from the government I think. Just my opinion.
The Chair: I think I would say, before I call on Senator Batters and Dalphond, that the government endorses the arrangement, has thought about it a lot — officials have examined this question — and as the minister identified that it is, in his judgment, a noticeable improvement. Almost anything would be with the greatest respect. And that he endorses it, but he is not, I would say unlike lots of other bills, he and the justice minister are not the architects of it, and you have identified that correctly.
Senator Batters: I wanted to bring up a few points on the fact that this may be somewhat of a consensus bill. At the same time, we have to be cognizant of the fact that I’m hearing from some people that they’re concerned about the fact that this is looking like judges judging judges and very little outside voices in that issue, and we’ve heard some parts on that. So yes, we absolutely need to be concerned about that.
Also some of the consensus was arrived at by the federal government consulting provincial governments dating back to 2016, as when I was questioning about this before, asking when some of those consultations took place, and it sounded like quite a few of them took place very early on and many provincial governments have, of course, changed since then.
But the particular fact remains that there are certain parts that obviously needs to be the will of this committee if we press. So I’m certainly willing to see what we hear from the Canadian Judicial Council. Of course, some of the concerns that I brought up today are not things that they will be able to comment on. Those are things that are strictly within Minister Lametti’s capabilities to do or to make a different choice on those.
The other comment that I briefly wanted to make is I really don’t want to get out of the practice of having the minister start off the study. I think that’s a very valuable thing, which other committees I’ve seen don’t enforce that, and their studies sometimes actually suffer because they don’t have the minister first. Maybe what it indicates is that the minister should come first because they lay out the groundwork, what the government is actually trying to accomplish. We have the opportunity to ask those questions. But maybe on these types of bills where there is more expertise that maybe it should not be a really rare occasion where we need to have the minister back. Maybe even just for a shorter time to be able to ask the minister precise questions once we’ve heard from different experts on the matter.
The Chair: Senator Dalphond. Then, with respect, we might try to draw closure and make a decision regarding —
Senator Dalphond: I agree with many of the comments that were made around the table. I don’t want to be understood as saying that the minister just takes the ball and carries it to us and we carry the ball to the end to Rideau Hall. It is a more complex exercise than that. What I’m trying to say here is the judicial council embarking on the exercise of how to change the rules and modernize them in 2013. They had the public consultations first and then they went on to work with stakeholders including lawyers’ associations and the Canadian Bar Association. And then the Justice Department itself embarking on public consultations, consulted with the stakeholders.
These things came together in a kind of an unusual way for the department because it was a kind of partnership between many groups working together to achieve a result. Then we have this result before us. But I’m not saying the minister is just getting the ball and he has to run with the ball and he has nothing to say. Everything has been done in the proper way, and the public interest, of course, is the main concern of all the groups involved, including the fact that public money is involved and there were maybe some abuses in the use of public money, including the time and resources in the Federal Court, by some judges that were fighting for almost 10 years to get to a result.
So I think there is joint cooperation in public interest being pursued, but the policy-making is in a kind of setting that is slightly different from normal bills. But that being said, we have to do the same analysis as we have done in the past and we will do with other bills and this is certainly what is expected from us parliamentarians.
Senator Pate: I wanted to endorse the perspective that Senator Clement presented. To not appear to just be carrying it over the line would mean — I think it behooves the minister to come back, even if it is for a short sitting, to be able to answer some of those questions.
The Chair: Can I ask whether there is a consensus that we defer a decision on this point until after we hear from the CJC officials tomorrow? My suggestion is that we might be able to conduct the discussion efficiently tomorrow, and when you make your interventions, you call out “speech number one from yesterday,” and we’ll remember it and move on to make the decision.
Senator D. Patterson: Agreed.
The Chair: The first part. The other was a little less serious, Senator Patterson. Thank you. Agreed in that respect. I think, as a result, that will conclude our business today. I apologize for showing up at the eleventh-plus hour when Senator Boisvenu has done all the heavy lifting today. This brings us to the end of the meeting, and we will see each other tomorrow. The meeting is now adjourned.
(The committee adjourned.)