Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 59 - Evidence
OTTAWA, Thursday, March 4, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-51, to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act, met this day at 11:00 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Senators, we will now proceed to clause-by-clause consideration of Bill C-51, an act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act.
Senator Bryden: I move that we dispense with clause- by-clause study and that the bill be reported to the house without amendment.
The Chairman: Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: The motion is carried.
You all have a copy of two draft reports on this bill. Are there any changes or additions that you would make to the suggested draft reports?
Senator Joyal: Where did they come from?
The Chairman: One came from our committee staff, arising out of the testimony we heard about gambling. The other was prepared with the assistance of department officials with regard to Senator Grafstein's concerns about the removal of wiretapping and other devices.
Senator Grafstein: I wish to thank the witnesses we heard yesterday. After our meeting yesterday, the chairman put me in the invidious position of putting my efforts where my mouth is. She said that if I had some concerns about this, I should try to sort them out between 6:30 last night and 10:45 this morning.
After our meeting, I had a lengthy conversation with the witnesses. I reviewed my concerns with them and suggested that these were serious issues but that, because of the time constraints we have with respect to this bill, I would not hold the bill up, vote against it, or abstain. However, I would like to have some recognition of this issue in our report and I would like it to act as a menu for further revision.
The witnesses agreed and this is the result of our discussion, this collaboration between myself and the witnesses last night. I am thankful for their assistance because of the time frame.
After that, I took it upon myself to obtain advice from our criminal lawyers, at various hours of the night and morning, and reviewed some of my concerns with them. I wanted to learn whether this was a one-of-a-kind situation. I have not had a chance to do a comparative study of this in terms of other jurisdictions or practices, and the committee itself has not had that opportunity. That is one of the problems with omnibus bills. My solution is to recommend this to the committee.
I would add only one word to this draft, which I find is first class and represents my view. In the first paragraph, where it says "that the Government review this matter in more detail should it conduct a policy or legislative review," I would add the word "privacy."
This goes to our discussions with the Privacy Commissioner, not only on the DNA Act, but also in the committee of the Whole. There must be some sequence to what we say to him. We questioned him carefully. If you recall, the Privacy Commissioner told us that he does not have enough money to review the privacy aspect of all the legislation that comes before us. Therefore, we must act as our own watchdog on this matter. It strikes me that this is a way of dealing with the problem.
The Chairman: That change would be in the second last line of the first paragraph. It would read "policy or legislative privacy review."
Senator Joyal: Madam Chairman, I certainly support the objective of this recommendation. As we all know, the Department of Justice has to certify that the contemplated legislation conforms to the Charter of Rights and Freedoms before it reaches cabinet and is tabled in Parliament. However, privacy is not tested because a right to privacy is not included in the Charter. I remember the debate we had 20 years ago about that. It is important for this committee to point out weaknesses in our legislative process; in this case, that there is no privacy test for legislation.
We now rely on the Privacy Commissioner, who told us on the record that he does not have the budget or the personnel to conduct that test on all bills. We know that in the future this will become more acute with the possibility a DNA data bank and other sources of personal information.
I feel that the wording is not strong enough. The wording is "should it conduct a policy or legislative review."
The Chairman: We may want to change the words to say "that the Government review this matter in more detail and that it should conduct--"
Senator Joyal: Yes. When we heard from the Privacy Commissioner two weeks ago, I wanted to discuss with him the weaknesses in our system in terms of rights. Privacy will be a major issue in the future and we must address it. Many of our colleagues are very concerned with the human rights committee. I believe that we must reaffirm the importance of that. I am totally in agreement with changing the wording in the way that you are suggesting, Madam Chairman.
The Chairman: You agree with the wording that I have suggested then?
Senator Joyal: Yes.
Senator Grafstein: I tried to make the text as acceptable as possible in the process, but the committee may be prepared to take it one step up or, as they say, to move it up a notch.
As was pointed out by the Privacy Commissioner, there is clearly a gap between his mandate and his effectiveness. It might very well be that we can recommend to the government, particularly with respect to Criminal Code amendments of general effect, that there should be an independent privacy review done -- in addition to the Charter write-off, which we accept as a given -- before the matter comes before us. At least we will have been confident that there is some sort of independent review.
There is no reason why we cannot make that recommendation here, in light of what the Privacy Commissioner told us in the Committee of the Whole. This is part and parcel of a continuum and we should not just look at one committee. I became trapped in the Nunavut bill because my concerns were directed less to the legislation than they were to other legislation, which is invidious, in my view. People say that that is for another committee, but our job is to make sure that there a screen through which all the water flows, as opposed to having separate streams.
If Senator Joyal wants to suggest stronger wording, I am certainly open to it. The whole idea is to make privacy a "top of the mind" issue, as opposed to something that comes afterwards. I agree with him that this issue is intensifying wherever you see it and we are not doing enough on this front. If someone wants to suggest a little harder wording, I would accept it in the draft.
Senator Fraser: Supporting all of the above, I would suggest that we also delete the words "in future" at the end of that paragraph. We suggest that they conduct that review and the sooner the better.
Senator Beaudoin: It will be in the future, anyway.
Senator Fraser: Indeed, that is so.
The Chairman: We want it to be not too far in the future.
Senator Moore: In addition to the word "privacy," I suggest that we say, "conduct a policy or legislative review of privacy," rather than "legislative privacy review."
The Chairman: You are right.
Senator Moore: On the matter of the staff recommendation for inclusion in the report, at the end we talk about the National Gambling Impact Study Commission in the United States of America. Perhaps we could add a statement at the end:
That commission is to report in June 1999.
That will provide a reference point for us if we want to pursue this further.
The Chairman: At this point, the last sentence of that first paragraph would read:
The committee expressed some concerns about the degree of certainty created, however, and would like to suggest that the government review this matter in more detail and that it should conduct a policy or legislative review of privacy which includes the subject of electronic surveillance.
Is it agreed?
Hon. Senators: Agreed.
The Chairman: This will go on to be translated.
Senator Grafstein: I assume that the second paragraph is unchanged?
The Chairman: Yes.
Senator Joyal: In the same sentence, can we delete the word "some" where it says, "The committee expressed some concerns...?"
I want to be sure that we have shown our concern clearly and not just discussed this and that. I do not have an English background.
Senator Andreychuk: "Some concerns" suggests that we did not exhaustively study this. We are saying someone else should do it. We have started the debate, in other words.
Senator Bryden: Madam Chairman, we could also say that "some members of the committee expressed concern," which is less than "the committee expressed some concern." That is also a little less pressing than "the committee expressed concerns." The fact is that Senator Grafstein expressed some concerns and then was supported by Senator Joyal. In the interest of just being a nice guy, I commented, but I do not think we want to go so far as to say that it was a considered decision. As a sometime practitioner of law, I do not find this text particularly uncomfortable as it now stands. It draws the attention and it is tough enough.
The Chairman: Let us not do too much more amending here. At this point, the sentence states:
Some members of the committee expressed concerns about the degree of certainty created, however, and would like to suggest that the Government review this matter in more detail and that it should conduct a policy or legislative review of privacy which includes the subject of electronic surveillance.
Writing a report by committee is very difficult.
Senator Fraser: Not to complicate life unduly, Madam Chairman, but it is my sense that the whole committee has just endorsed the concept of suggesting the review. If we say that some members of the committee expressed concerns, I think we should then say, "and the committee would like to suggest..."
The Chairman: If we start adding in too much, I believe we would not address the point made by Senator Bryden. Perhaps we should, at this point, leave well enough alone.
Senator Grafstein: Madam Chairman, I agree with Senator Fraser. I wanted to make that suggestion as well, but my suggestion would not have been crafted as nicely.
If Senator Bryden does not have a concern, and Senator Joyal and Senator Fraser and I do have concerns, the question is whether the committee shares the concerns sufficiently to make a committee recommendation.
The Chairman: We are making that recommendation.
Senator Grafstein: I have heard from Senator Bryden but not from other members of the committee on whether to take Senator Fraser's suggestion. Some of us have raised the concern, but what does the committee want? Otherwise, this change really dilutes the point. It seems to be a one-off by a couple of committee members saying that there may be a problem here. If it is not a deep problem, that is fine; I will speak to that. However, if there is a committee consensus, the text should state that.
The Chairman: I believe we do have consensus around the table now. Senator Bryden has just nodded.
The Chairman: Again, I will read the revised revision. Everyone, put your minds into neutral, please. Let us not do too much more editing.
Some members of the committee expressed concerns about the degree of certainty created, however, and the committee would like to suggest that the Government review this matter in more detail and that it should conduct a policy or legislative review of privacy which includes the subject of electronic surveillance.
Hon. Senators: Agreed.
The Chairman: We are agreed on these two pages of text for the report. I shall report Bill C-51 this afternoon.
The committee adjourned.