The Standing Senate Committee on Social Affairs, Science and Technology

has the honour to present its

THIRTEENTH REPORT

Your Committee, to which was referred the subject matter of Bill S-21, An Act to guarantee the human right to privacy, in obedience to the Order of Reference of Thursday, April 26, 2001, has examined the said subject matter and now reports as follows:

Background 

During its hearings on the subject matter of Bill S-21, An Act to guarantee the human right to privacy, the Standing Senate Committee on Social Affairs, Science and Technology heard testimony both for and against the idea of a Privacy Rights Charter as presented in the bill.  Witnesses also addressed the substance of particular clauses of the bill and described their potential implications in practice.  

Senator Sheila Finestone, the sponsor of the bill, began by emphasizing that Canada’s response to the tragic events of September 11^th in the United States must be guided by democratic principles, including the importance of the right to privacy.  She underlined that while privacy is a fundamental human right, it is not an absolute or inflexible right.  Under section 1 of the Canadian Charter of Rights and Freedoms, it is subject to such reasonable legal limits as can be demonstrably justified in a free and democratic society.  Senator Finestone explained that the bill is intended to set out an explicit legal right to privacy – something Canadian law does not currently contemplate – while giving effect to the principle that privacy is essential to an individual’s dignity, integrity, autonomy, well-being and freedom, and to the full and meaningful exercise of human rights and freedoms.  She described how the bill would apply to all persons and matters coming within the legislative authority of Parliament by protecting against, for example, genetic discrimination and infringements on freedom from surveillance.  Senator Finestone noted that the bill would be paramount over other ordinary legislation and would necessitate a review of existing, as well as all new, federal legislation to ensure compliance with the bill.  She did not consider grandfathering existing legislative provisions an option as it would amount to giving statutes enacted before the bill a special, unjustified immunity from review under the bill. 

Senator Finestone’s advisor, privacy expert Eugene Oscapella, noted that the bill could provide a template against which issues such as a requirement to carry an identity card could be measured.  He described other intrusions into privacy that would benefit from a Privacy Rights Charter, including the restriction on the use of electronic encryption and access to e-mail and Internet usage data by government agencies.  Mr. Oscapella pointed out that because it is unclear whether the case by case protection provided by the Canadian Charter of Rights and Freedoms would be sufficient to address such issues, a Privacy Rights Charter would attempt to fill in these gaps. 

Senator Finestone directly addressed criticisms of Bill S-21.  Some have claimed the bill would change the notion that a person is free to act unless that action is prohibited by law, to one that would only allow individuals to act if the infringement of an individual’s right to privacy was deemed lawful.  She did not accept this interpretation, but was open to revising the bill to state that an infringement would be justifiable if it had not been made unlawful.  Others have claimed the bill would harm the work of law enforcement agencies because their activities and standards have already been approved by Parliament, or by the courts through the common law, without being reviewed under Bill S-21.  Senator Finestone agreed this was possible, but was confident the courts would be able to maintain the balance currently existing between justified privacy intrusions by law enforcement agencies and an individual’s right to privacy.  To those who have suggested Bill S-21 would lead to excessive litigation, she noted that statements of rights require a remedy for those instances where the rights are infringed.  Having introduced the bill in the Senate – where bills authorizing government expenditures or imposing taxes cannot originate – she was unable to place responsibility for enforcement of the bill with the Privacy Commissioner.  She suggested, however, that the bill could be amended in the House of Commons to introduce a role for the Privacy Commissioner in resolving disputes. 

Privacy expert Valerie Steeves provided additional arguments in support of Bill S-21 and the principles it espouses.  She suggested that the current Canadian patchwork of privacy legislation is missing what this bill would provide, and what this country needs:  an umbrella statement of privacy principles.  She highlighted the four different perspectives of privacy that emanate from academic material and Supreme Court of Canada jurisprudence:  privacy as a fundamental human right; privacy as a social value; privacy as a democratic value; and privacy as essential for data protection.  Ms. Steeves described how each of these perspectives has contributed to the evolution of policy mechanisms for protecting privacy – the Criminal Code, the Charter, specific legislation – yet this process has occurred without the support and guidance of any foundational principles. We now find ourselves with a patchwork of protection but no underlying common language.   

Ms. Steeves felt that Bill S-21 could provide that common foundation because it would bring us back to first principles by focusing on privacy as a fundamental human right.  She noted that when grappling with issues of privacy, we have the option of using the language of human rights or the language of efficiency and fiscal responsibility.  She suggested that if we use the latter it will become much easier to trade privacy for convenience, whereas if we use the former – the language of human rights – the debate becomes anchored in the principles of democratic freedom.  She argued that if Canada relies on the language of human rights when considering privacy, it will be in a stronger position to deal with the regulation of genetic privacy, medical privacy, questions of terrorism and hate crimes.   

Ms. Steeves acknowledged the essential role of the Privacy Commissioner in this country, but stated that all privacy matters do not funnel through his office.  Thus, there is a need for an umbrella statement of privacy principles.  She suggested the option of removing clauses 4 to 6 of the bill – which were criticized by the Privacy Commissioner and Justice Canada – and replacing them with something modeled on the Canadian Bill of Rights, which basically gives the courts the power to look at other pieces of federal legislation to ensure they are following the principles of the Bill of Rights. 

The federal Privacy Commissioner supported the intent of Bill S-21 to provide a framework for testing existing and future laws of Canada against privacy rights.  He described this as a significant gap in the federal Privacy Act.  Another gap he noted in the Privacy Act was that it does not have paramountcy.  He supported the notion of paramountcy in Bill S-21, such that existing and future legislation would have to respect privacy rights.   

The Commissioner was concerned primarily with clauses 4 and 5, which provide that an individual who feels his or her privacy rights are being violated by the federal government or by a federally regulated private sector body, could use litigation to protect his or her rights.  He noted that there is currently a process in place for dealing with such complaints:  the Privacy Commissioner.  He argued that Bill S-21 would create a parallel complaint process that could create parallel sets of rulings on similar issues.  He feared this could create a dangerous collection of competing rulings.  He pointed out that this process would not only be costly for the government and private sector, but it would also raise the question of which rulings should take precedence. 

The Privacy Commissioner also felt Bill S-21 presents itself as if there were no privacy legislation in place in Canada.  He thought it could cause credibility problems for the Personal Information Protection and Electronic Documents Act and could threaten the effectiveness of other privacy legislation.  He argued that the current legislative regime adequately protects the privacy rights of Canadians in circumstances that fall under federal jurisdiction, and was confident that concerns such as those expressed about personal health information could be addressed by existing legislative tools. 

Senior General Counsel from the Public Law Policy Section of Justice Canada praised Bill S-21 as a novel point of reference for future governmental work on privacy protection and supported the preamble and statement of principles in the bill.  She explained that the Department did, however, have several serious reservations about Bill S-21 in its present form. 

The Department thought the bill would create a great deal of uncertainty and could pose obstacles to many government programs and policies because it raises doubts about the legality of statutory enforcement regimes currently in place that are in compliance with the Canadian Charter of Rights and Freedoms and other relevant legislation.  It was also argued that the application of the bill could be problematic.  For example, private individuals engaging in certain activities, such as surveillance of their own property, could be exposed to criminal proceedings under the Criminal Code.  The Department felt that even if Bill S-21 were amended to reduce the application of the Act to federal organizations and governmental institutions, federal departments would still have difficulties in fulfilling their mandate with regard to activities such as monitoring their property and, possibly, with security. 

The Department questioned the proper heading of constitutional competence to which Parliament would attach Bill S-21:  federal or provincial or both?  There was also serious concern that the bill would turn on its head the notion that one can do as one sees fit, unless a democratically elected body has decided otherwise. 

It was argued that Bill S-21 could obstruct and confuse the approach adopted by the courts when applying the Canadian Charter of Rights and Freedoms because it would not be possible for the courts to take into account the relevant context and to weigh the various conflicting values in many situations.  The Department felt it probable that the bill would be interpreted differently from the Canadian Charter of Rights and Freedoms when balancing the right to privacy against the public interest.  Given the primacy of this legislation, it was argued that many areas of law might need to be re-litigated, which could be very expensive for government and the private sector. 

The Department was not convinced that simply removing clauses 4 to 6 would be sufficient to make the bill workable.  There was great concern about the primacy statement in clause 11.  The Department was also worried about how the bill would interact with the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms and the Official Languages Act.

Observations 

The Committee is keenly aware that privacy rights have become especially fragile in the security-driven wake of the events of September 11^th.  The Committee’s observations are founded on the premise that privacy is a human right.  We recognize its inclusion in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights as clear indications that the right to privacy is a human right deserving of the utmost respect.  We understand the idea of legislating a statement of privacy principles, including a legal right to privacy.  The Committee applauds Senator Finestone for being vigilant in the pursuit of safeguarding human rights at a time of heightened anxiety and security. 

The Committee notes that there is no single, universally-accepted definition of privacy.  While classically understood as the “right to be left alone,” we believe that there are many ways of defining privacy.  It has been described as the desire of people to choose freely under what circumstances and to what extent they wish to expose their lives, their attitudes, and their behaviour to others.  Others have equated it with the right to enjoy private space, to conduct private communications, to be free from surveillance and to have the sanctity of one’s body respected.  We think these are all valid interpretations and see no need to choose one over another. 

We heard that the existing federal legislative infrastructure regarding the protection of privacy is considered by many to be a “patchwork” of protections.  The Committee understands that there is no explicit constitutional right to privacy, although sections 7 and 8 of the Canadian Charter of Rights and Freedoms have been interpreted by the Supreme Court of Canada as providing protection against “unreasonable” invasions of privacy.  We note that the Privacy Act applies exclusively to the federal public sector in relation only to data collection.   In this context, the Act places limits on the collection, use, disclosure and disposal of personal information held by the federal government and federal agencies.  We also note that the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to the federally-regulated private sector with respect to the collection, use and disclosure of personal information, but only in the course of commercial activities.  While PIPEDA will also eventually apply to personal health information and provincial matters, it will still be exclusively with respect to commercial activities. 

We were told, and agree, that Bill S-21 would act as umbrella legislation, under which the Privacy Act and PIPEDA, and such other existing and future specialized privacy legislation would constitute the different spokes; it would set out the governing principles on privacy in Canada. 

The Committee is concerned, however, about the the interaction between the right to privacy, the Criminal Code and the burden of proof, and how this interaction would play out in practice under Bill S-21.  Burden of proof in this context refers to the obligation to affirmatively prove that what one is doing is lawful as opposed to being able to do as one pleases as long as it is not unlawful.  Clause 5(3) of Bill S-21 states that a privacy infringement may be justifiable if it is “lawful”.  Therefore, the burden would be on the party infringing the privacy right to prove that the infringement was lawful.  We were told that this differs from the current laws, where a person, including the Crown in some circumstances, is free to act unless that action is prohibited by law.  It was explained that this type of reverse onus is only rarely and very carefully used in our laws.  Furthermore, section 126 of the Criminal Code states that anyone who contravenes a federal statute without a “lawful” excuse is guilty of an indictable offence.  Thus, unless proven “lawful,” an infringement of privacy under the bill would be caught by section 126 as contravening a statute and would be an indictable offence.  The Committee believes this aspect of the bill requires further study. 

The Committee also has concerns about the role of the federal Privacy Commissioner in relation to Bill S-21.  We heard that because the bill would set up a separate complaints process from that under the Privacy Act, competing rulings could arise that would raise questions of precedence.  The Committee would prefer to see the Privacy Commissioner more directly implicated in the application of a Privacy Rights Charter.  We understand that a bill so implicating the Commissioner cannot originate in the Senate, and this is another aspect of the bill we feel requires further study. 

Finally, the Committee is of the opinion that serious consideration should be given to Ms. Steeves’ suggestion of modeling the bill after the Canadian Bill of Rights.  Section 3 of the Bill of Rights requires the Minister of Justice to examine every bill and regulation to ascertain whether any of their provisions are inconsistent with the Bill of Rights.  Any such inconsistency must be reported to the House of Commons at the first convenient opportunity.  The Committee notes that clause 6 of Bill S-21 is very similar to this, but the bill goes much further by setting out a mechanism in clauses 4 and 5 that would enable individuals to enforce their right to privacy.  The wording used in the Bill of Rights, on the other hand, indicates it was intended to be used primarily as a guide for the interpretation of federal statutes and to authorize the courts to review administrative action taken under the laws of Canada in light of the rights and freedoms recognized in the Bill of Rights.   

Thus, modeling Bill S-21 after the Bill of Rights would entail removing clauses 4 and 5.  The courts would still have the power to look at other pieces of federal legislation to see if they are in keeping with the principles laid out in Bill S-21.  The Committee notes that when the Canadian Charter of Rights and Freedoms came into force, many expected the Bill of Rights would no longer be of utility and would lose its relevance.  On the contrary, it has been used, and continues to be used, by the courts as a significant guidepost in the interpretation and protection of individual rights and freedoms.  With some further study and revision, a Privacy Rights Charter could serve that same important function.

Respectfully submitted,

MARJORY LEBRETON
Deputy Chair