THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 12, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to examine the subject matter of Part 4 of Bill C-4, An Act respecting certain affordability measures for Canadians and another measure.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good evening. My name is David Arnot. I’m a senator from Saskatchewan and chair of this committee. I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Senator Scott Tannas, Alberta.
[Translation]
Senator Dalphond: Pierre Dalphond from Quebec.
[English]
Senator Cuzner: Rodger Cuzner, from Nova Scotia.
[Translation]
Senator Clement: Welcome. Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Dasko: Donna Dasko, senator from Ontario.
The Chair: Honourable senators, we’re meeting to conclude our study on the subject matter of Part 4 of Bill C-4, An Act respecting certain affordability measures for Canadians and another measure.
For our first panel, we’re pleased to welcome Stéphane Perrault, Chief Electoral Officer of Elections Canada; Josée Villeneuve, Deputy Chief Electoral Officer, Regulatory Affairs; Caroline Simard, Commissioner of Canada Elections; and Michael Bisson, Deputy Commissioner, Operations.
I welcome you on behalf of my colleagues here in the Senate committee. We’ll start with the Chief Electoral Officer, followed by the Commissioner of Canada Elections. The floor is yours for five minutes each. Time is of the essence. We have many senators with many questions, so it’s quite likely that the senators’ questions and the answers will be limited to four minutes due to the time. I’d really ask you to respect the five‑minute rule on the opening statements.
Thank you for coming. We look forward to your testimony.
[Translation]
Stéphane Perrault, Chief Electoral Officer, Elections Canada: Thank you for the invitation, Mr. Chair.
I appreciate the committee’s willingness to take the time to examine these proposed amendments to the Canada Elections Act, especially since they are included in a larger legislative package.
I’d like to briefly highlight a couple of issues with the proposed changes to the act and would be happy to expand on these in response to questions.
In my 2022 recommendations report, I recommended that the privacy principles enumerated in Schedule 1 of the Personal Information and Protection of Electronic Documents Act—10 of the biggest generally accepted principles—should apply to registered and eligible political parties, with oversight by the Office of the Privacy Commissioner of Canada, as is the case in Europe. In the absence of this, I recommended a minimum level of protection of electors’ privacy.
[English]
Bill C-4 purports to create a complete code for privacy rules governing registered political parties but leaves each party with full discretion to determine what those rules will be, without imposing any minimal standard. In this regard, Bill C-4 is a step back from the rules proposed in Bill C-65 in the previous parliament.
While I can appreciate the need for some flexibility with respect to privacy rules for political parties, I have yet to see an explanation for the absence of any substantive privacy requirements. For example, I don’t know of a good reason why an elector would not have the right to know what information the parties hold on them and, when appropriate, to request a correction regarding their data from political parties. Perhaps there is one, but I am not aware of it.
Moreover, to the extent that the bill aims to create uniform national rules for parties, uniformity would exist only from the vantage point of each party. From the point of view of electors whose information is held and used by political parties, their rights would differ between each party.
Another concern is that, in its drafting, the bill appears to create two privacy regimes based on the internal policies of the parties. On the one hand, the act already requires parties who wish to register to have a privacy policy that meets certain requirements or, I should say, covers certain topics. On the other hand, Bill C-4 would require parties that are determined to be eligible or that are registered, to have a privacy policy that meets similar but not identical — not identically drafted — requirements. Given the similarity between the two sets of requirements that would coexist in the act for parties that are eligible or registered, it’s not clear what the intent of Parliament would be and how we are to reconcile these two regimes.
Mr. Chair, I believe that better safeguarding electors’ personal information would help maintain Canadians’ trust in Canada’s political parties and, by extension, in the electoral process.
Thank you for inviting me today.
The Chair: Thank you.
[Translation]
Caroline Simard, Commissioner of Canada Elections, Office of the Commissioner of Canada Elections: Thank you for inviting me to contribute to your study of Bill C-4. I am accompanied today by Mike Bisson, Deputy Commissioner, Operations. As commissioner, I am responsible for ensuring that the Canada Elections Act is complied with and enforced.
I am in favour of the objectives that this bill seeks to achieve with respect to the privacy policy obligations of federal political parties. However, some of the proposed amendments, in their current form, would present significant operational challenges for my office.
I would therefore like to draw your attention to three key elements that, in my view, require greater clarity to ensure effectiveness and consistency of the proposed regime.
Political parties’ privacy policies are frequently written in language that is very general and ambiguous. This can make it difficult, from an enforcement perspective, to determine whether or not a contravention has occurred. To establish a violation, the wording must be clear, precise and even legal, defining what is permitted or prohibited. Common minimum requirements, defined in law, would provide a more solid basis for law enforcement.
Second, every party has its own unique policy, which would require my office to essentially develop expertise in 15 distinct policies. This lack of uniformity increases complexity and can undermine the consistency of our investigations.
Third, the tools used to carry out administrative investigations are limited under the Canada Elections Act. Due to its current form, Part 4 of Bill C-4 would make the failure to comply with the party’s privacy policy a violation under the act’s administrative regime. However, the Canada Elections Act does not provide for investigative powers adapted to administrative investigations. In fact, without prior judicial authorizations, we do not have the power to compel testimony and the obligation to preserve or disclose documents or other evidence. Without these tools, the ability to access evidence would be difficult.
I would like to point out that comparable powers already exist in other federal legislation, including for the future Foreign Interference Transparency Commissioner.
[English]
A further challenge relates to the scope of the new requirements. I suggest that it may be necessary to clarify to whom these provisions apply and how they apply in practice.
As currently drafted, Bill C-4 does not clearly state whether the privacy provisions extend to nomination contestants, leadership contestants or campaign volunteers. It also appears that they would not apply to independent candidates.
While candidates and electoral district associations are listed in the bill, the activities of those working for them may not be fully captured by the amendments.
This is significant because most individuals who access the list of electors are volunteers of candidates, not employees of political parties or riding associations.
Greater clarity on the scope of these obligations would help support compliance and ensure consistent enforcement. Implementing these recommendations would enable my office to respond more effectively to this new mandate and support the objectives of the bill.
Finally, I would note that effective implementation will require coordination between my office, Elections Canada and the Office of the Privacy Commissioner. Our mandates are distinct but complementary, and we are committed to working in collaboration to support this new regime.
Thank you again for the opportunity to appear before you. I would be pleased to answer your questions.
The Chair: Thank you, witnesses. We will now commence with questions.
Senator Batters: Thanks very much to all of you for being here on quite short notice when we had to reschedule. It’s much appreciated.
My question is to Ms. Simard, the Commissioner of Canada Elections. I wanted to first clarify something you said in the closing part of your opening remarks. You were talking about “employees of riding associations.” As someone who has been involved in local election campaigns at the federal level for probably more than 35 years, I can tell you that riding associations don’t generally have employees. They can’t afford them. Those are volunteers who do that. Perhaps party headquarters have some employees for sure, and not only volunteers, although there are those people there as well. What did you mean by “employees of riding associations”?
Ms. Simard: Basically, there’s a lack of clarity in the main provision where there’s a clear contravention. A party’s failure to comply with its own privacy policy would constitute a violation under this regime. In this main provision, there’s a lack of clarity as to whether or not employees or volunteers — the best example would be volunteers of candidates. It’s unclear to us as to whether this example would be captured by this main contravention.
Senator Batters: I just wanted to clarify that about employees of riding associations. A volunteer is on a whole different level.
In your brief, you raised this type of uncertainty about the scope of obligation to comply with the party’s privacy policy, particularly for certain campaign activities, and then you’re echoing that again today.
But the bill does apply to:
. . . any person or entity acting on behalf of the party, including its candidates, electoral district associations or riding associations and volunteers.
Could you clarify where that ambiguity remains despite that wording?
Ms. Simard: I can certainly do that if I can find the provision itself.
Basically, the confusion, where it’s unclear to us, starts with “A registered party or eligible party, as well as any person or entity acting on the party’s behalf . . . .”
What is unclear to us is, again, the best example is volunteers working with candidates, not with parties. Because you have this kind of chapeau in the provision, that’s where there’s confusion for us.
Senator Batters: On behalf of the party would also mean on behalf of the party’s candidates. It’s the party’s leader who signs the candidate’s nomination papers and on whose behalf they’re going door to door, phoning and all those kinds of things. Despite an earlier comment that some of these organizations aren’t like local chess clubs, they actually are.
To me, “on behalf of the party” does not seem unclear because that’s certainly who you’re going to the door to promote: the party, the candidates, which are candidates of the parties.
Another issue I wanted to find out more about: You recommend imposing record retention obligations for a set period to make enforcement workable. What retention period do you think would be realistic and proportionate given electoral cycles, and what sorts of records should be covered under that?
Ms. Simard: I would say that a reasonable period would be one that enables us to do our investigations, basically. That’s the problem —
Senator Batters: So how long?
Ms. Simard: If there’s no retention, like an umbrella obligation to retain documents, it would be hard for us to do our investigations, as you can imagine.
Senator Batters: What sort of record retention obligation would you want to see on that?
[Translation]
Ms. Simard: For me, that depends on what Parliament would want to have. I don’t have any recommendation in relation to a specific period.
[English]
Senator Batters: Thank you.
[Translation]
Senator Miville-Dechêne: I would like to thank both witnesses for their valuable testimony on Part 4, which we are considering.
I’d like to have more details, Mr. Perrault. When you say that there is no minimal level and that 10 of the biggest principles in the Canada Elections Act have not been replicated in this bill, concretely, what is most conspicuously absent from this part when it comes to privacy?
You spoke about the right of access, which is not in the bill, but in your opinion, are there other gaps on privacy?
Mr. Perrault: I’d like to reiterate the difference between things that are set out under the existing act, when a party is seeking registration, which goes into detail about protecting the use of personal information. There is a fairly detailed list that has been lost in Bill C-4, which talks about practices more broadly. There is some ambiguity when it comes to the difference between the two.
In my opinion, the law as it stands doesn’t have any requirements on sharing information. That was in my 2022 recommendations. There is no requirement on a policy for sharing personal information. If I’m not mistaken, it was there in Bill C-65, which had some requirements on this front. It also had some prohibitions, including on sale, which has not been replicated here.
There are no specific obligations to cover policies and some basic obligations, such as taking protection measures in the event of a privacy beach or loss of personal information, as well as the obligation to report these losses. These obligations are fairly routine.
If we move a little bit from the usual privacy principles — in 2022, I recommended that political parties identify themselves in their communications with the public using a tagline. This is used in election advertising, but there is no disclosure requirement when sending a text message or an email. Canadians receive messages, but they don’t know the source of the messages and when they receive a survey through a text message, they don’t know that the information is being collected by a party and it can be used for political or electoral purposes. To me, the lack of transparency in communications only makes the lack of protection worse.
Senator Miville-Dechêne: Thank you. Just to recap briefly, Ms. Simard, you’ve said that you’re not sure you can carry out investigations. I find that somewhat disturbing because you are the independent officer responsible for investigating 15 political parties. Why can’t you carry out investigations specifically?
Ms. Simard: I believe that there are many reasons. First, I’d like to point out that I can investigate, but in a fairly limited manner. The problem right now is that we’re talking about an administrative monetary penalties regime. There are two regimes in our law and we don’t have the necessary tools for administrative investigations right now. We don’t have judicial authorization and we don’t have the power to compel witness testimony or to preserve and conserve evidence. As you can appreciate, these examples make investigative work more complex.
Senator Miville-Dechêne: Thank you.
[English]
Senator Prosper: Thank you to our witnesses for being here today.
I posed this question on an earlier panel, and I’m curious about your thoughts on this. Part 4 is described as creating a national, uniform and complete regime; yet it relies on each political party drafting its own privacy policy with no independent body assessing adequacy.
How does a system of individualized, self-written standards produce true national uniformity and compliance with the fundamental privacy principles that underlie privacy laws?
Mr. Perrault: It does not. As I said in my opening remarks, it provides uniformity from the vantage point of each individual party but not from the vantage point of electors. If there were standardized standards applicable to all parties, then that would be both uniform vis-à-vis the parties and uniform vis-à-vis the individuals, but that’s not what this bill provides.
Ms. Simard: What would be helpful from an enforcement perspective would be a common set of common rules, not 15 different policies.
Senator Prosper: This is for both of you or anyone.
Whom do you believe is the best suited? Are Elections Canada and the Commissioner of Canada Elections best suited to enforce these privacy rules and ensure compliance among political parties? And why?
Mr. Perrault: My initial recommendation had been and would remain that the Privacy Commissioner is best positioned to administer privacy rules. That is the model that exists in Europe, in the U.K., for instance. It’s the model, I believe, in Quebec as well that applies provincially, and it’s the model that exists in B.C. for provincial parties; and until Bill C-47 federal parties.
To me, that’s not a fundamental issue. As long as there’s independent oversight, I think, it can be somebody else. It could be Elections Canada or the commissioner for enforcement. My point of view is that the expert in the area of privacy is the Privacy Commissioner.
Senator Prosper: Thank you. Ms. Simard?
Ms. Simard: I would say the same.
[Translation]
It depends on what Parliament would want to have. If Parliament wishes to give us that responsibility, we will do everything we can to develop expertise within my office, in collaboration with the Office of the Privacy Commissioner, among others.
[English]
Senator Prosper: Thank you.
Ms. Simard: Thank you.
Senator Tannas: Thank you for being here. Just a couple of questions. Were either of you consulted on the development of Bill C-4?
Do either of you have a theory as to why we were given an empty box of principles as opposed to something similar to what was in Bill C-65? We’ve heard a lot, in fact, from the political party folks and also from the people in the Privy Council saying that this is a stopgap, and they kind of dangled that there’s more to come. We just need to get this done; we understand the urgency. It’s a bit embarrassing. But it’s because they want to do a run around a court in the province. Fair enough. If you’re going to assert jurisdiction, you had better get on with it.
We, then, are sort of being led that we need to have faith that they have something cooking that is going to come and address all the issues that we’re hearing, or substantively all the issues we’re hearing.
Have you seen any evidence in your interactions with the government that would suggest that they are seized with the idea of enhancements? Is there anything that you’re seeing that would suggest that we ought to believe that this issue isn’t just going to be left the way it is?
Mr. Perrault: Mr. Chair, I prefer not to speculate regarding the theories behind this bill. I know there was Bill C-65 that was there before, and it no longer is. That’s the extent of my knowledge. Bill C-65 did go further in providing some requirements, and that’s all that I can offer the committee.
Ms. Simard: Likewise.
Senator Tannas: So inexplicable, in your view, and you’ve had no interactions at all on anything that might come in the future. Thank you.
Senator Simons: Given that we don’t know if the next election is going to be in three months or three years, it is tricky to speculate about what the time frame actually is in order to prepare legislation before the next election.
Let me ask you a larger, I guess more existential, question. What are the consequences for Canadians’ trust in their democratic systems, in their elections and in their parties if we don’t have a way to protect the information, some of which Canadians may not even realize they have shared with political parties? At a time when we are worried about foreign interference, at a time when we are worried about private actors misusing public data, what are the risks to the confidence Canadians have in their electoral system if we don’t have a better regime for privacy protection for voters?
Mr. Perrault: As I said in my remarks, I believe that better safeguarding of personal information would contribute to enhancing trust in the political process, writ large. Hopefully, we shouldn’t wait until we have a Cambridge Analytica scandal, or a major issue before protections are put in place.
The other thing I can offer is that when we did consultations back in 2021 in preparation for my recommendations, surveys showed that Canadians do want some rules around the use of personal information by political parties; that is something that came out very clearly. And so they expect that in terms of reinforcing their confidence in the process.
Ms. Simard: As far as we are concerned from the enforcement perspective, it is this public perception that we may be able to do more. And in practice we won’t be able to do that much.
Senator Simons: To both of you, do you feel that there is an urgency to passing this law, separate and apart from the concern about obviating the B.C. court case? Do we need to rush to pass this, or would we be better served to take a step back, resurrect and improve Bill C-65 in light of new technological developments, and go forward with a regime in which Canadians have confidence and in which parties themselves would understand the level playing field? So there isn’t going to be what Matt Hatfield from OpenMedia, I think — or maybe it was Mr. Israel — called a race to the bottom, as parties lower their standards in order to outcompete one another.
Mr. Perrault: I have more questions than answers for the committee in that regard. One question I have is why the current provisions that were put in place in Bill C-47, which already provides that the regime in the act is a complete code, why that is not adequate to deal with the concerns of the B.C. litigation? I don’t know the answer to that question.
But there is already a provision in the act that says that the rules that exist now, which are at least as robust in their substance as Bill C-4 — Bill C-4 does add a few things, like an annual statement by the officer of the party, like an annual meeting. So there are some enhancements to the regime, but in terms of the substantive requirements, I don’t see any enhancements.
And it is a complete code already. That is set in the legislation as it exists today.
So I can’t really answer the need for the pressing nature of this provision.
[Translation]
Senator Simons: That’s a good answer.
[English]
Senator Dasko: Thank you, witnesses, for being here. Mr. Perrault, you mentioned in your opening comments that the bill is made up of; you described it as two drafting regimes. I don’t know what this actually means. Perhaps you could describe what this is.
Far be it from me to want to get into drafting issues. This is not a rabbit hole I would like to get into, but your comments are important because perhaps it suggests — is it just sloppiness? Is it sloppy drafting of this bill? Is this what we’re looking at? You obviously weren’t consulted. Were any legal people? Justice people? Was anybody consulted on this?
My question is: if you could describe in a little more detail what these drafting issues are and what the impact of the drafting issues might be on the bill in terms of it going forward and being implemented. Thank you.
Mr. Perrault: Certainly. Right now in the law, a party that applies for registration must come forward with a policy in its application on the —
Senator Dasko: Existing legislation.
Mr. Perrault: Existing legislation. The policy must cover the types of personal information that the party collects, how it protects the personal information and how it uses that information. So fairly detailed. It doesn’t talk about sharing, but it talks about uses. There is a fairly detailed set of requirements.
In Bill C-65, which is not before Parliament, but was in the last Parliament, that bill would have repealed this list and replaced it with a more comprehensive list of requirements.
So, from a drafting point of view, that was clear. This bill, Bill C-4, does not repeal the detailed list that a party that applies for registration must have in its policy. But then as a further policy requirement for parties once they are registered or become eligible to be registered — so there is a process in the act. And that list talks about, in very vague terms or general terms, having a policy regarding the party’s practices. So it doesn’t talk about uses, sharing or protection, but speaks of practices.
The two policy requirements coexist in the act. When one tries to interpret legislation and Parliament speaks differently using a different language, normally it must convey a different meaning. So it’s not clear what those practices are if they are not exactly those that are described in the application policy.
So we have two policy requirements that coexist. If this bill were to be passed, these would coexist in the legislation.
Senator Dasko: Could they be seen as conflicting with each other, or it raises a question as to the status of the previous legislation?
Mr. Perrault: It raises that question. There are good reasons, I think, to interpret the legislation as saying that the policy requirements upon application must survive and continue when the party becomes registered; that is how I would interpret that.
But that then raises the question: Is there anything different that is conveyed by the new requirements? And hopefully, there would be no contradiction. But what exactly would Parliament want to have that is not covered in the existing requirements that is covered by the broader, less specific language that speaks to the practices?
Senator Dasko: So we have specific and then we have non‑specific added on to it.
Mr. Perrault: Correct.
Senator Dasko: And what is the status of —
Mr. Perrault: And I would interpret the non-specific to at least include the specific.
Senator Dasko: I see.
Mr. Perrault: But then what else is not clear?
Senator Dasko: I see. So this obviously creates confusion in the interpretation of what is meant, what does Parliament mean —
Mr. Perrault: What is intended.
Senator Dasko: There is this and there is this, and they don’t fit together. That is very interesting.
[Translation]
Senator Oudar: Welcome to all of you. I’ll ask the same question that I put to the previous panel on the retroactive date set out in clause 49 of the bill. It’s quite clear why Parliament included this in the act. It probably has to do with a certain matter before the Supreme Court of British Columbia. Beyond that, the effect of clause 49 is that legislative provisions would be deemed to have come into force on May 31, 2000, or 26 years ago.
First, speaking as a lawyer, this seems to run counter to the rule of law, creating a conclusive presumption due to Parliament’s use of the term “deemed.” This is very serious from a legal standpoint, even though people have a perception that Parliament can do anything. However, it can certainly not violate charters.
I’d like to hear your thoughts on section 3 of the Canadian Charter of Rights and Freedoms and on this retroactive date in the act.
Mr. Perrault: This is an exceptional retroactive application, admittedly, due to its scope over time. I don’t see any potential conflict with the right to vote.
The retroactive application applies to the entire code under the act, but not to the code’s specific requirements, namely, the obligation to adopt policies. In that sense, it’s a hybrid form of retroactive application, and it only covers the exclusion of provincial regimes, but it does not impose retroactive obligations, which would obviously be problematic.
I don’t see any conflict with constitutional obligations under section 3 of the Charter.
Senator Oudar: Would you like to add to those comments, Ms. Simard?
Ms. Simard: I have nothing to add. Thank you.
Senator Moncion: The way political parties are organized, and please excuse my ignorance, but earlier, I thought I heard that they are non-profit organizations. Am I mistaken?
Mr. Perrault: No, I think you’re not mistaken. However, I don’t think there’s anything that would prevent a party from assuming a different form, including incorporation. There are no rules that would prevent that.
Senator Moncion: If I start from the premise that political parties are non-profit organizations, then these organizations will develop their own by-laws and operating policies. Do the government and smaller political parties dictate how this is structured or do they simply present this as being resolved in that manner under the law?
Mr. Perrault: I’m not sure I understand your question. The law provides that parties will develop their own policies internally on a voluntary basis. By their very existence and the topics that have to be covered, parties have an obligation . . . Again, as I said earlier, there is some ambiguity; there are detailed topics when applying for registration and a broader topic after the activities.
Beyond that, the parties will determine their own requirements internally as they see fit.
Senator Moncion: The problem lies with oversight because what is covered here does not follow established rules, and this limits your oversight powers when it comes to what is happening within these parties.
Mr. Perrault: I’ll defer that question to the commissioner. However, there is an oversight regime and she alluded to some of its limitations.
Each party has a designated officer who is responsible for attesting compliance annually. There are no violations for false attestations filed by the officers. The regime is fairly voluntary in that perspective. Failure to comply with the policy would in principle result in administrative penalties and that’s where the Office of the Commissioner would come in.
Ms. Simard: The $5,000 for entities is the limit. In the act, it’s currently $1,500 for individuals and it’s mostly in relation to investigative tools.
As I explained earlier, we need the power to compel witness testimony without prior judicial authorization. We can’t order parties to preserve evidence or to share it with us. All that is lacking under the current regime, and this makes it difficult for us to do our job.
Senator Moncion: Thank you.
[English]
The Chair: I have a couple of questions for Mr. Perrault and Ms. Simard.
I find it very surprising, in answer to Senator Tannas’ question, that neither of you were consulted in this legislation. In your testimony, you used the words “a lot of ambiguity,” “a lot of gaps.” To a legislative draftsperson, those words, especially “ambiguity,” are anathema. How is it that these gaps exist, in your opinion? Do you find it would be wiser to, in fact, deal with the gaps and eliminate the ambiguities before this becomes legislation?
We’ve heard that this bill, in some people’s opinion, is unsalvageable. It needs to be studied on its own. It’s too important to Canadians and our democratic principles to have this bill go through in this form at this time. Some people have said that it is a cynical attempt to remove privacy rights from Canadian citizens.
I would like you to comment on that. I think this is very concerning. I think that it calls upon the Senate to use sober second thought on these very issues, but in order to do that, we need some evidentiary basis to make that foundation, and I’m hoping you can answer my questions and help give us that evidentiary foundation.
Mr. Perrault: Thank you, Mr. Chair. I do feel that my role is limited here to informing the Senate of the limitations of this bill, and the Senate is to decide how they, as a body, want to exercise their function vis-à-vis the other place.
I do not see in this piece of legislation any reduction of the privacy protections that are already very limited in the Canada Elections Act, nor do I see any significant enhancements.
If I can use the precautionary principle here, I don’t think this bill does harm to privacy; it just does not enhance privacy protection. To the extent that one would say it does, I have yet to see how that is so.
Ms. Simard: I would echo what Mr. Perrault just said. In addition, from an enforcement perspective, I would reiterate the fact that there would be a public perception that we can achieve more than what we can do in reality.
The Chair: What specific enforcement actions would be available if a political party’s published policy on privacy issues, for instance, is clearly inadequate or clearly has not been followed in practice by a political party?
Mr. Perrault: These are two different questions. A party’s privacy policy could be, for example, on the sharing of information that they share with whomever. There is no limitation in this legislation or the existing act in that regard. It could be that we sell the information, which Bill C-65 would have prohibited.
The bar is not very high for the policy. It must cover the activities that the party does with personal information. In that regard, it should provide a measure of transparency regarding the practices of the party, but it doesn’t hold those practices to any particular standard. For example, it doesn’t say the party should collect only what it needs to in order to carry on its activities or that it should only share under certain circumstances. It doesn’t do that.
In terms of the quality of the policy, if it’s not satisfactory from the point of view of someone observing the policy, it’s still compliant with the legislation.
Now, if there is a policy of some substance and it is not observed, then there are, in principle, mechanisms for compliance in this bill, with the limitations that the commissioner mentioned.
Ms. Simard: From our perspective, I would use a French expression.
[Translation]
There is a risk that we are going to lower the bar because we risk confining ourselves to what is needed under the law.
We’ve just heard some examples to illustrate that. I think it’s important for me to share another risk with the committee.
[English]
It is the privacy breach. So if there were such a scenario, there is not currently any obligation to notify the affected individuals or to let us know that there is such a breach.
It would be hard for us to be informed, to receive a complaint from affected individuals or, again, receive this information directly from the political parties.
Michael Bisson, Deputy Commissioner, Operations, Elections Canada: If I could just add some colour to the commissioner’s comments, for example, to add to the level of complexity from an investigative perspective.
Even if we were to be informed of a breach or through the receipt of a complaint, for example, we would then be dependent on finding the party’s policy that applies, knowing that that’s one of the 15. We would then have to look at the policy that was in effect at the time of the alleged contravention. If a policy gets updated three times in a year, we have to ensure we are getting the right version. Therefore, if there are no preservation requirements, we may not be able to obtain that, and because we don’t have powers to compel either, we rely on voluntary cooperation to obtain evidence.
It’s then going to depend on each party’s actual policy to be able to prove there was a contravention. As Ms. Simard said, both in her opening statement and right now, in terms of setting the bar relatively low, it’s going to be hard, unless parties add to those minimum requirements to actually find a contravention, or it might be written in language that is ambiguous to the point where it’s difficult to find whom we might be investigating right off the bat.
The Chair: Thank you very much.
[Translation]
Senator Dalphond: Welcome and thank you for being here on such short notice. Right now, under section 385, to be recognized, political parties must meet a number of obligations, including preparing policies for the protection of personal information. Do you review those policies or do you rely solely on the document provided by parties? They do have to meet certain criteria, including on the type of information, its intended purpose, how it will be used and how it will be protected, and the type of required training for staff, employees and volunteers who will use the information. Have you reviewed any party policy?
Mr. Perrault: Yes. Some parties, especially the smaller parties, approach us often. As we heard earlier, there are 15 parties at present. There were 23 not too long ago, so the number varies over time. They have some challenges with the requirements and we help them with that. In every single case, we must ensure that the policy meets legal requirements under the act and that it covers all areas. Even if there are no specific standards for each of these areas, they must be covered. We do this review, and Ms. Villeneuve’s team is responsible for that.
Senator Dalphond: As I mentioned earlier, some aspects are not covered in the act, including the use of information and other similar things. Are they covered in the policies you have seen?
Mr. Perrault: I’d have to check whether that goes beyond . . . For example, some parties have provisions on sharing information. Parties don’t always stick to the minimum legal requirements, but this varies from one party to another.
Senator Dalphond: Did you listen to the testimony from the previous panel? All the witnesses spoke to the right of access, the right to correct information, and restrictions on the use of information. They informed us that all the rights we are discussing are already covered by their policies.
Mr. Perrault: I think it’s important to make the distinction between the right to correct information and the right to access information. There’s the right to correct information. I don’t think existing policies include the right of access, and so if an individual doesn’t know what the party has in its possession, they could say, “Here’s the right information about me” without actually knowing all the information the parties hold or ensuring that the correction is carried out accurately. Some elements in policies are not required under the act. That’s well and good, but there are some aspects that may not be sufficient.
Senator Dalphond: I assume you’re in contact with your counterpart in the U.K., where the law applies to political parties as well as businesses, agencies, municipalities and so forth, albeit with some variations. In that case, oversight is vested in the privacy commissioner, not the electoral commissioner. Have you heard anything about how well it works?
Mr. Perrault: I haven’t heard anything to suggest it doesn’t work well. Typically, we tend to hear when something goes wrong. I haven’t heard that political parties are having difficulty with this. There may be challenges, which is not necessarily a bad thing, to a certain extent. I don’t have a lot of information, other than the fact that the regime is administered by the privacy commissioner. Perhaps you can ask Mr. Dufresne whether he has any information on that when he appears before the committee later.
[English]
Senator Clement: Thank you for your testimony. There are a few things that really struck me.
Mr. Perrault, when you started out, you said it’s hard to see the rationale for this and why we are doing this. Duly noted.
Also, in response to Senator Tannas’ question, you weren’t consulted. You are the experts on some of this, so it does make me uncomfortable.
I did take a look, with the staff and interns in my office, at the different policies. To Ms. Simard’s point, there are certain things that are similar and certain others that aren’t. The NDP has, apparently, a designated privacy officer. The other parties don’t speak of this. Some use the words “demographic information,” some don’t. There are subtle differences that can have a great impact, so I understand your point about it being all over the place.
What struck me most today was the testimony from Professor Denham, who spoke about Canadians’ expectations around privacy. She said that, from her work, Canadians do have an expectation.
I’d like you to speak to that, what you know about that. I think you alluded to that.
Sometimes it feels as if what we talk about here is disconnected from what Canadians truly understand. We are fancy people talking inside baseball sometimes, and it doesn’t necessarily translate into how Canadians understand things or how we speak to Canadians in a regular way.
What are Canadians’ expectations? What do you know about that? What work do you do understanding what their expectations are around privacy?
Mr. Perrault: In our lead-up to recommendations in 2022, we did some public opinion surveys on that, and I could share that with the committee. If my memory serves me right, it shows that Canadians do want privacy protections. They care about that. It is nuanced. They have different views. It’s not a monolithic view. It’s also nuanced in that they accept more certain practices than others. For instance, they prefer to receive emails. That’s not a big concern, even unsolicited, but being texted or called, not knowing who is texting, that provokes a greater reaction.
They have nuanced views. If they could tell parties, “If you want to contact me, please use this means,” what the data says is they would appreciate that. They would like to have a say on that.
Senator Clement: To say more about this surveying that you do with Canadians, how does that work to get feedback?
Mr. Perrault: This was work that we had done back in 2021 in thinking about some recommendations to Parliament. One of the topics was privacy.
Senator Clement: For Bill C-65?
Mr. Perrault: No, for my own recommendation reports. I regularly make recommendation reports following elections to Parliament. I made a series of recommendations back in 2022 following the forty-third general election. In preparation for that, I did both public opinion surveys and consulted with experts in the area. Based on that, I came up with recommendations.
Senator Clement: It might have been relevant to have somebody consult you, then, about those things.
Mr. Perrault: Normally, from a policy point of view, I express my policy recommendations to Parliament, not to the government, through a recommendation report or, in some cases, testimonies before a committee or a letter.
The policy advice, if I can use that term, that I give is to Parliament. When I discuss bills with the government, it’s typically not to shape the policy of the bill — that belongs to the government — but to express my view on whether there are drafting issues or problems of implementation. That’s more the nature of the relationship that I have with governments, this and previous ones, regarding legislation.
Senator Clement: Thank you.
Senator Batters: Thank you. First of all, I’m sadly not that surprised to hear that the government didn’t consult either of you, because I’ve seen a lot of this over the last several years. I think back to Bill C-26, now Bill C-8, basically unchanged, the “cybersecurity act.” I was the critic of that one, on the Standing Senate Committee on National Security, Defence and Veterans Affairs, in the fall of 2024, when I asked the Privacy Commissioner of Canada and the Intelligence Commissioner, both of whom you would think the government would have consulted given their significant involvement with that very important area, the government didn’t consult them on that major bill. So that’s not really all that different is what I’m trying to relay here.
I just want to ask the Commissioner of Canada Elections, Ms. Simard, in an answer you gave earlier to Senator Prosper — I think I wrote it down correctly — I think you said a set of common rules would be best, not 13 different ones.
Earlier, we heard the political parties saying that they think the best feature of this is the national framework that this will provide, and it has to be a national, uniform, exclusive and complete regime specified right in this part. Isn’t that the kind of thing that you actually want to see happen here rather than have these provincial or territorial differences between these regimes?
Ms. Simard: If I understand your question correctly, it would clearly make our lives less complicated to have a common set of rules rather than 15 different policies. Basically, that’s what I have to say on that.
Mr. Perrault: I certainly endorse the idea of uniformity. I’ve said so to previous ministers in the past in discussing my recommendations, that uniformity is something that’s desirable. But this is uniformity from the vantage point of each party. There is no uniformity from the vantage point of the individuals whose information may be treated vastly differently by the different parties.
There’s nothing that is incompatible with the idea of a uniform code, which this bill and previous ones purport to achieve. There is nothing incompatible with that goal of having even greater uniformity by having some common standards for parties.
Senator Batters: The only other thing I wanted to say is that in the House of Commons, with MPs who had just recently been elected in the last election, the second reading vote in June 2025 on this bill was 336-0 on a standing recorded vote. At third reading in December 2025, it was adopted without a standing vote and then sent over to the Senate, I believe, on the very last day the Senate sat.
This is not by “political parties.” These are individual MPs who are supposed to have a duty to vote in the House of Commons on behalf of their constituents.
Certainly, we have a role in sober second thought, but at the same time, those are people who had just been knocking on doors and contacting voters for two months, basically, and many much longer than that.
Thank you very much for your time and for being here today.
Senator Dasko: I would say that the parties are very happy to be able to do whatever they wish with the data they collect, and they want to continue that practice. I think that is what this bill is.
Mr. Perrault, as I said earlier, I was troubled by your discussion of the two sets of requirements. I think that’s a very important point that you made earlier.
My question is a simple one. The parties’ representatives, when they were here, I heard the use of the term “implied consent.” That is the term used to describe the way they collect data. Not with the consent of the respondent, but they just collect it, store it and use it without the actual consent of the respondent, the person, the individual, the citizen, in this case.
Do you have any idea what that might mean? Is there such a thing?
Mr. Perrault: There is such a thing. Again, the Privacy Commissioner of Canada, who is the expert, may be better positioned, but if I write a letter to a party with my personal email, I, by implication, have accepted that they collect my email. If I ask for a response, they keep it long enough to at least respond to me.
So there are transactions that do carry an implied consent. Whether or not the party’s actual practice is always by implied consent, I can’t speak to that. Certainly, by law, they are entitled to receive some personal information, including the list of electors — there’s some information there — and what we typically call the “bingo sheet,” which is the statement of the people who have voted in advance and on ordinary polling days.
The law does give them and recognizes the importance of them receiving some information that is not based on consent. It’s the rest that is a bit of unknown territory, and that’s where their policy should fill that gap.
Senator Dasko: Thank you.
The Chair: Witnesses, on behalf of the committee, we thank you for attending here today on short notice. We appreciate the advice you’ve given us, and we thank you for your responses to our questions.
Honourable senators, for our second panel, we’re pleased to welcome Philippe Dufresne, Privacy Commissioner of Canada; and Michael Harvey, the Information and Privacy Commissioner for British Columbia, by video conference. I thank both witnesses for being here today. I’d like to start with Mr. Dufresne, followed by Mr. Harvey.
Each witness will have five minutes to give their testimony. We have about 12 senators here, so I want to inform everyone that questions and the answers will be limited to four minutes in total.
Mr. Dufresne, please go ahead.
[Translation]
Mr. Philippe Dufresne, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Mr. Chair and hon. senators, thank you for inviting me to discuss the privacy implications of Bill C-4, the making life more affordable for Canadians act.
As Privacy Commissioner of Canada, my mission is to protect and promote individuals’ fundamental right to privacy. I am responsible for overseeing compliance with federal privacy laws.
[English]
The Privacy Act governs how the federal government handles personal information, and the Personal Information Protection and Electronic Documents Act, or PIPEDA, applies to the private sector. Political parties, which collect highly sensitive personal information, are not currently covered under either law.
Yet, we know that privacy matters to Canadians. A survey conducted by my office last year found that 9 in 10 Canadians are concerned about the protection of their privacy. The survey also found that trust in how personal information is handled is becoming an important factor in individuals’ interactions with organizations.
As I have consistently said, privacy is a fundamental right. Privacy supports the public interest, and it enhances Canadians’ trust in their public institutions. That is true in the electoral context. In my view, and for those reasons, Canadian voters’ fundamental right to privacy should be protected with a privacy regime for political parties that goes beyond self-regulation — one that provides meaningful privacy standards and that ensures independent oversight.
[Translation]
Privacy rules for political parties should parallel requirements that are already set out for public and private sector organizations under federal law — while being adapted to the unique role that political parties play in the democratic process.
I have three key recommendations for improving Bill C-4 to better protect electors’ personal information.
[English]
First, I recommend that Bill C-4 be amended to incorporate privacy standards that form the basic elements in data protection laws in Canada and around the world. These include requirements for political parties to identify the purposes for which personal information is being collected; to seek consent, as appropriate; to limit collection, use and disclosure; and to put into place appropriate safeguards to protect the personal information of Canadians from privacy breaches. The bill should also provide a mechanism for electors to access and correct their personal information that is held by political parties.
My second recommendation is that Bill C-4 include privacy breach notification provisions requiring that breaches be reported to affected individuals as well as to an independent body, such as the Privacy Commissioner of Canada, Elections Canada and/or the Commissioner of Canada Elections, as this would provide important protections to Canadians.
[Translation]
My third recommendation would be to improve oversight and implementation by allowing for formal collaboration between my office, the Commissioner of Canada Elections and Elections Canada. Enabling inter-agency collaboration would strengthen the work of regulators, and would allow us to address complex issues that cut across sectors and jurisdictions.
[English]
Privacy is a fundamental right that is directly linked to democracy itself. Prioritizing privacy protects Canadians, supports the Canadian economy and strengthens Canadian institutions. Prioritizing privacy is good for Canada.
Thank you, and I will be happy to take your questions.
The Chair: Thank you, sir. Mr. Harvey, please proceed.
Michael Harvey, Commissioner, Office of the Information and Privacy Commissioner for British Columbia: Good afternoon, members of the committee. Thank you for the invitation to appear as part of your deliberations on Bill C-4 and the proposed amendments to the Canada Elections Act. I appreciate the opportunity to provide my perspective as Information and Privacy Commissioner for British Columbia and what adopting this bill, as written, would have on the privacy rights of people living in British Columbia.
British Columbia has a long history of robust privacy protections enshrined in law, including the Personal Information Protection Act, which I will refer to as PIPA, and which is of interest for this committee’s work, since it applies to any private sector organization that collects, uses and discloses the personal information of individuals in B.C. and which has been in force for 22 years.
By enacting PIPA, the people of British Columbia have determined that they desire a certain level of legal protection from all organizations. The B.C. experience concerning privacy does not sit in isolation from the federal sphere of powers. The protection of personal information is an area of concurrent jurisdictions, forming an interlocking regulatory framework without gaps. The many joint investigations between my office and my federal, territorial and provincial counterparts are a testament to the success that a multi-jurisdictional regulatory regime can achieve when supported by robust, comprehensive privacy laws.
When it comes to federal political parties, this protection is not provided by any federal statute, including the amendments before us today. If federal legislation properly established a complete regime for the protection of personal information in the hands of federal political parties and their affiliates, then it would be unnecessary for provincial legislation to apply. However, for that to work, a certain minimum level of protection would be required.
Today, I will identify the minimum elements of a privacy regime that, in my view, would satisfy that requirement.
The purpose clause of the draft amendments indicates that the bill aspires to provide for a national, uniform, exclusive and complete regime for the protection of personal information. To achieve this, I will raise for your consideration some of the elements that should be included to ensure a minimum level of effective protection of personal information.
First, an effective privacy protection regime requires rules as to what personal information an entity may collect, use or disclose and under what circumstances those activities may occur, as well as requirements relating to security, including breaches and accountability. As drafted, the proposed amendments do not contain any prohibitions or consent requirements, nor do they distinguish between different types of personal information. Whether an activity is permissible, or even in line with common privacy protection principles, would be entirely subject to a political party’s self-written policy.
The second element is a codification of individual data subjects’ rights. These rights are critical, as our personal information can be used to make decisions about us and influence our behaviour. Among established data protection regimes, these rights commonly include a right to notice, a right of access, a right to rectification, a right to be forgotten and a right to withdraw consent to the use of personal information. These rights are absent from the proposed amendments, and, here again, these rights could only be exercised to the extent that they exist within a party’s own self-written policy.
A third critical element to privacy laws is that there must be independent oversight. This may take the form of an independent officer, such as the Privacy Commissioner of Canada or the Chief Electoral Officer of Canada. However, oversight is not only a question of who oversees compliance but also what is overseen and how the oversight takes place. As I have outlined earlier, there are serious deficiencies with respect to oversight, given the self-regulatory nature of the provisions.
One final concern I would like to address is that, as drafted, Bill C-4 will purportedly pre-empt provincial privacy legislation, with retroactive effect to the year 2000. This is tantamount to a recognition that Bill C-4 does not meet the threshold of protection offered by B.C.’s PIPA. Thus, if the proposed amendments are effective, in the space where B.C.’s PIPA would ordinarily apply, the amendments in Bill C-4 would oust PIPA by brute force, leaving a privacy lacuna.
I will not comment on whether the amendments are valid or effective but would merely observe that if they are, it would frustrate the democratic will of the people of British Columbia and their decision to enshrine their constitutionally grounded privacy rights in law 22 years ago.
Thank you, and I look forward to your questions.
The Chair: Thank you. We will move to those questions.
Senator Batters: Thank you, both, for being here and rescheduling on short notice to help us with this important part of this bill.
First of all, to Mr. Dufresne, thank you very much for all the work that you continue to do for Canadians to help protect our privacy.
You have recommended introducing privacy breach reporting obligations and requiring political parties to notify affected individuals and an independent body without unreasonable delay and no later than seven calendar days after becoming aware of a breach.
Do you think that a seven-day timeline would be realistic during an election period, and what criteria would determine when a political party is considered to become aware of a breach?
Mr. Dufresne: Thank you for the question.
Of course, this has to be interpreted contextually. There is a recognition that political parties have their own unique realities, and you’re pointing to one. In terms of the breach reporting obligation, I have recommended strict timelines with respect to the private sector, in particular. I think political parties should report as early as possible when they are aware of it, and the test is this: Is there a real risk of significant harm to the individual?
So, the whole question will come up about what was known and when it was known. The reason it is important that my office be notified, as well — or the regulator at issue; it could be the Commissioner of Canada Elections — is that we can help with those discussions. The goal is not to punish, blame or point fingers but to determine how we can help prevent it and, if it happens, dealing with it to protect Canadians, ultimately.
Senator Batters: That is how Bill C-8, the “cybersecurity act,” works: If you don’t know about it, how can you help make things better?
We have had discussion at the committee today — some references about implied consent and whether the parties are getting implied consent from Canadians, the candidates and their volunteers as they go and knock on doors, phone people or things like that — and believe me, I have done it hundreds of times — whether Canadians are giving information to those political volunteers at the doorstep when indicating they are willing to support a candidate or they want to take a lawn sign — things like that — making sure the volunteer has the person’s name correct or what have you.
Given that what we’re dealing with here in terms of 343 ridings across Canada, with probably hundreds of volunteers from all political parties in each of those ridings, do you think there needs to be a more formal mechanism for Canadians to voluntarily give that information to those volunteers — whether some sort of consent form would be needed to be signed — or isn’t implied consent a more realistic — and, believe me, I have been on the receiving end of some Canadians who don’t want to release any information, and that is fair game, too.
Mr. Dufresne: Implied consent can be appropriate in certain circumstances. I’m recommending there should be an obligation to obtain consent, first, which is not in the bill now. Once you have that obligation, then you determine whether implied consent is appropriate. What we usually look for to determine this is whether it is within the reasonable expectations of individuals. If it is, then implied consent is appropriate; if it’s not, you are going to look for something more express.
We also look at the sensitivity of the information. The more sensitive the information is, the more inappropriate it is to rely on implied consent. If it’s financial information or sexual orientation — those types of things — you want to make sure it is express consent.
So, it’s very contextual.
To your point about making it easy and user-friendly, those are things we are always pushing for. One of the good things in the bill is this notion of plain language that makes it easy to understand. We have issued guidance in terms of how to make consent more user-friendly using different tools and forms. So, we would certainly be engaged in that and happy to provide guidance.
[Translation]
Senator Miville-Dechêne: I have a question for Commissioner Dufresne.
You said, “I have a few recommendations for amending the bill.” It seems to me that these are not minor, trivial recommendations, or two or three amendments that can be made on the back of an envelope.
If I remember correctly, you’re saying that we need to have privacy standards and to identify why we want this information, obtain consent, have appropriate safeguards in place, and ensure the right of access and corrections.
A look at the bill and the mandatory content shows that what you’re asking for has been left out. Is it possible to change this bill, to improve it, to add everything you’re recommending and to make it a bill that respects privacy?
Mr. Dufresne: I believe so. We’re certainly available to support these efforts should Parliament wish.
The elements I mention could be added, for example, to the requirements concerning political party policies. Some form of that was in Bill C-65, for example, which was more rigorous. It had requirements for the protection of personal information in proportion to the risk, as well as notification. However, all of that has disappeared.
Besides, the Office of the Chief Electoral Officer and my office have been working together since 2019 to prepare guidelines and advice for political parties. These guidelines have been published. They cover the 10 principles, consent, necessity, transparency and so forth. This could be added to the bill. In my opinion, capacity should also be added. If this remains the responsibility of the Chief Electoral Officer, I recommend that my office should have formal collaboration with her office. We had that with the CRTC and the Competition Bureau, but in situations where two agencies deal with common issues, I believe it’s important to be able to coordinate these issues.
[English]
Senator Prosper: Thank you to our witnesses.
I have a question for you, Mr. Dufresne, and it’s one I asked previously, but I want to get your take on it. Part 4 is described as creating a national, uniform and complete regime; yet, it relies on each political party drafting its own privacy policy, with no independent body assessing adequacy. How does a system of individualized self-written standards create true national uniformity and compliance with the fundamental privacy principles that underlie our privacy laws?
Mr. Dufresne: The concern I’m flagging is that there is a bit of self-regulation in that the parties get to decide. There is good transparency, which was highlighted by Mr. Perrault. They have to say what they are going to do. However, there are no minimum requirements, and that could lead to requirements that are too low. It could also lead to requirements that are different between political parties. That doesn’t bring that certainty, trust or consistency that, in my view, Canadians deserve. So, that’s a challenge there.
Then, in terms of the independent third party, there would be an independent third party, the Commissioner of Canada Elections, in this bill who would look at compliance with the policy, but, again, that is only as strong as the policy is, and that is in the hands of the political parties.
Senator Prosper: Were either of you consulted during the drafting of Bill C-4?
Mr. Dufresne: No, we were not.
Mr. Harvey: No.
Senator Simons: Thank you very much for being here.
Mr. Harvey, I want to talk about two things. One is that sense of a patchwork. When the Privy Council was here earlier — and the parties and lawyers — they all said it would be a terrible thing if we have a patchwork system where different provinces have different regulations.
I take their point, but I would like to hear your rebuttal.
I would also like to hear you speak a bit more about the issue of the law being retroactive because most of the witnesses have not addressed that point. I want you to explain to us clearly what retroactivity would mean for the privacy of the people of British Columbia who have been protected for over 20 years and who may have that privacy retroactively taken away.
Mr. Harvey: Thank you for the question, senator.
With respect to the patchwork nature, it is important for me to underline that, as a commissioner of British Columbia, I only have a mandate to speak about the people of British Columbia and about the applicability of laws in British Columbia, in particular about the applicability of PIPA.
So, in our case, the people of British Columbia decided 22 years ago, through their legislature, that they wished to have privacy protections from all organizations unless they were protected by some other statute. For example, PIPA does not cover provincial public bodies, and it does not cover federal public bodies, federally regulated organizations like ports and so on.
However, there is no statute that protects political parties, and B.C.ers wish to have that level of protection from all organizations.
It’s important to recognize that if these privacy rights were removed — so, again, I won’t comment on whether Bill C-4 is valid or successful in doing that, but it purports to remove the PIPA rights that B.C.ers have and replaces them with something else and lesser, then B.C.ers would have lower privacy rights vis-à-vis federal political parties than they would have regarding their neighbourhood auto shop or their kid’s swim team. In my view, in the current environment, political parties that gather such vast amounts of information and do things with it that are intended to influence our democratic behaviours deserve a high level of scrutiny and privacy guidance. That is what B.C.ers intended to have with PIPA 22 years ago.
To have the protections removed, and to have them removed retroactively for the past 22 years, is a frustration of the democratically expressed will of the people of British Columbia, in my view, and as I have stated.
Senator Simons: Earlier, Senator Prosper read from a letter written to express that we shouldn’t be bothering to hear from the applicants. In the case of the B.C. Court of Appeal, the issue is moot because the government will have had Royal Assent in a moment.
What do you make of that as a party to that litigation? Is it cricket to write a letter to say that the trial doesn’t need to go ahead because they are guaranteeing that Parliament, including the Senate, is going to pass this bill and it will be given Royal Assent?
Mr. Harvey: I want to be cautious about commenting on matters before the courts, but I think it is welcomed that this committee is carefully studying the implications of these amendments, since they would apply retroactively to B.C.’s PIPA and would relate to the matter that is currently before the court.
So, I certainly welcome the senators’ attention to this matter.
Senator Simons: Recently in Alberta, the province I represent, we had a situation where a judge was about to make a ruling on an important issue involving referendums in the province, and the province changed the legislation in an attempt to thwart the judge. He was able to write his decision very quickly once he realized legislation was coming. There was a lot of concern in Alberta that such actions by the province were an improper overreach by the government to frustrate the independence of the courts.
When you hear the letter that Senator Prosper read into the record, are you concerned at all that this could be an attempt by the federal government to frustrate the independence of the B.C. Court of Appeal?
Mr. Harvey: I have a deep appreciation of the powers that Parliament has, the will of the House and the Senate and the principle of parliamentary supremacy. If the Parliament makes a law, then it makes a law.
I think it is evident, though, what the purpose of this law means to vis-à-vis PIPA in the context of the matter before the courts.
Senator Tannas: My questions are for Mr. Dufresne.
We heard that you weren’t consulted. I was reminded of that when Senator Batters mentioned the unanimous standing vote in the House of Commons. I just want to ask you about the committee process there. I understand you weren’t invited to testify at the committee, but you submitted a brief; is that right?
Mr. Dufresne: I was not invited to appear before the committee. I proactively submitted a letter to the committee.
Senator Tannas: Great.
You had three suggested amendments. Did you or your staff see as you and they monitored both debates in the House of Commons — or just in the committee — was there any — and I noticed briefs were put in by others that we’ve actually heard from here. I could not find anybody who appeared to be testifying on Part 4, with the exception of a witness from the Privy Council. I think she did appear.
But did you or your staff see anything in the committee hearings or the House of Commons debates that would give any evidence to MPs having an informed discussion about this particular matter that we’re seized with?
Mr. Dufresne: I don’t want to comment on the proceedings before the other place, but I will simply note that my recommendations were not adopted; the bill has not been changed to reflect those recommendations.
Senator Tannas: Were they discussed? Was anything discussed at the House of Commons that you saw that would give evidence to the fact that they gave this any consideration at all?
Mr. Dufresne: I did not see a debate on this specific recommendation.
Senator Tannas: Did you see anything on Part 4 at all at committee other than the testimony from the lady from the Privy Council Office?
Mr. Dufresne: I would have to confirm with my team, but I can say that I did not see a debate on my recommendations.
Senator Tannas: Fair enough. Thank you.
[Translation]
Senator Dalphond: It took 20 seconds at parliamentary committee in the other house; the lady who testified before us on behalf of the Privy Council quoted Part 4, and that was it. There was not a single question.
We have heard that political parties are very different, and I get that. In the U.K., and my guess is that you have contacts with the U.K. privacy commissioner, the law applies equally to municipal institutions, private organizations and Parliament. One commissioner is responsible for everything. How does this work with political parties there?
Mr. Dufresne: The regulations apply to Great Britain, Quebec and Europe with the General Data Protection Regulation, or GDPR, the general regulation. Of interest here is article 56, which states that if the operations of the democratic system necessitate parties obtaining information about opinions, this may be allowed on public interest grounds, so long as adequate security measures are implemented.
There is a recognition of the contextual aspect of the matter, which would be the same. Privacy is contextual; it must be applied in the commercial context to large multinational corporations, but it must also be applicable to small organizations that have fewer resources and are less complex. It must be user-friendly and practical. That’s how it’s applied to political parties. I have had a lot of discussions with my international counterparts, and no one has voiced any concern about the application of these rules to political parties.
Senator Dalphond: Have any measures been taken against any political party that has failed to meet the requirements in the U.K. or anywhere else?
Mr. Dufresne: You heard from my colleague Elizabeth Denham earlier today. She was directly involved in the Cambridge Analytica case in the U.K., which is a good example of the harms that can occur when information is not adequately protected.
We are involved in one case—
Senator Dalphond: I’m sorry for cutting you off, but if I understand correctly, it has to act as a catalyst to ensure that political parties are subject to the law.
Has this changed anything? Do we know whether the Privacy Commissioner of Canada is reporting on this? If the political parties have agreed, are they compliant or not?
Mr. Dufresne: My international colleagues have taken some steps. I don’t know of many, but I think that may also be an indication that it’s possible to comply with the requirements.
The goal is not to have a lot of negative decisions, fines and so forth, but where obligations exist, political parties are informed and can implement them. They can receive warnings. The system works.
I know there have been complaints and steps have been taken, but from what I’ve seen, that involves a small number.
Senator Dalphond: Thank you.
[English]
Senator Clement: Thank you both for being here. I’m going to make a comment and then ask you a question, Mr. Dufresne.
This country has remarkably smart people that we put into commissioner positions, like the Chief Electoral Officer, the Commissioner of Official Languages — whom we just interviewed — and the Correctional Investigator, Dr. Ivan Zinger. All of you are here to produce reports for us and make recommendations, so my question to you is: What happens to these reports? Because it feels like governments and parliaments are not engaging with the smart work that all of you smart people are clearly doing on behalf of Canadians.
I’m increasingly frustrated here listening to this. I’m thinking of Dr. Zinger because he stepped away from that position saying, “I am not being heard.” So how do you engage with Parliament on the information? How do you get that across to a government or Parliament when they are not listening?
Mr. Dufresne: There are many tools. Certainly, this is one. This is an opportunity to be before parliamentarians. We can flag issues of concern and make special reports and say, “Here are our recommendations.” I have been quite vocal in terms of calling on law reform for the private and public sectors and asking Parliament to stake steps. We can comment on specific bills coming before you, like Bill C-8, the cybersecurity bill. I was sharing my views this morning on Bill C-12.
Our hope, of course, is that Parliament will take up the recommendations, but ultimately, you are the parliamentarians, and the members in the House are the parliamentarians. I will certainly continue to give advice and hope to see this advice taken up. I know that my colleagues are bringing their views to the best of their abilities within their mandate. We hope they are useful to parliamentarians and that they are taken up.
Senator Clement: I want to continue with what you were discussing with Senator Dalphond about the EU. Clearly, we have heard that that is a bit of a gold standard in terms of systems. As the smart people that you are — commissioners and officers — you work with colleagues across the board. What kind of collaboration do you have with them and with Professor Denham?
Mr. Dufresne: There is significant collaboration in Canada, for example, great collaboration with my colleague Commissioner Harvey, as well as with the provinces and territories and internationally. We have to because privacy is international. Data shares borders. It may not be enough to protect data just in Canada even in the context of political parties. It has to be done elsewhere. That is certainly true for commercial organizations, so there are very strong international networks.
There is the Global Privacy Assembly, which houses all the privacy commissioners around the world. I was elected chair of that organization last fall. Canada has a great leadership role in those organizations. We hosted the G7 here in Ottawa at Meech Lake and issued a very strong statement on how protecting privacy supports innovation and protects children. It is not a zero-sum game. It’s not that if you protect privacy, you are weak in your innovation and economy or your police force. I think that would be the same in terms of elections and political parties. It is not that any gain in privacy is going to be a loss in terms of flexibility for political parties. They support each other, and that is what we see internationally. We have strong common views, and we try and learn from each other. On this issue, we’re able to point to common views in Europe and key jurisdictions where it’s possible.
Senator Clement: Thank you both for your smartness. It is truly appreciated.
[Translation]
Senator Moncion: I think you’re the only one who has talked to us about amending the bill today. Most people have told us that it would be better to remove Part 4.
To what extent would these amendments address all the concerns that people have identified today?
Mr. Dufresne: I think the amendments I’m recommending recognize the choice made by the government, which was to say that this would be governed by the electoral authorities, namely my colleagues, the Chief Electoral Officer and the Commissioner of Canada Elections.
If Parliament wishes to proceed in that manner, you have my recommendations to strengthen the requirements and notify Canadians and organizations in the event of a privacy breach. I must be allowed to play a role in all of this, in collaboration with my colleagues.
If the Privacy Commissioner has jurisdiction over this — and I believe that is what some of the witnesses have recommended — as is the case for all other organizations, that is certainly a possible choice and something that could be done at that point. The amendments would be different, and it would be a matter of amending the Privacy Act to add political parties to Schedule 4 so it applies to the parties.
In any case, the act or certain parts of the act could come into force on different dates, depending on the obligations.
We saw this when Quebec modernized its legislation: some obligations came into force more quickly, after a year or two, while others would come into force after three years, to give organizations time to comply with the requirements.
We must also anticipate that some organizations, such as my office or my colleagues, can provide guidelines and work together. There are several options. Regardless of what Parliament chooses, I’m available to provide support and to implement it to the best of my ability.
Senator Moncion: I agree with you, whatever Parliament decides.
We must make recommendations to Parliament: we can delete Part 4 entirely or amend it — we can make two recommendations to Parliament. What concerns me is the weight of the amendments, because it’s much easier to remove Part 4 than to add an entire part that would provide the framework we are seeking for that part. It’s therefore a choice between the two.
As I understand it, you’d rather say that we’re making amendments for the sake of respecting the will of Parliament. However, this puts us in a delicate position in relation to the second objective review that we must conduct.
We understand the government’s eagerness to wrap up Bill C-4, but we also understand the concerns we’ve heard today. What are your thoughts on that? There isn’t really a question.
Mr. Dufresne: I fully understand. The important thing for me is that we provide rigorous protection for Canadians when it comes to political parties.
There are two ways to do that. It can be done by eliminating Part 4, and if that is done, I think it would be important at that point to say, “All right, now let’s amend the Personal Information Protection and Electronic Documents Act in another bill, but quickly.” I would hope that this would be done to include political parties.
There are tools to do this, and no doubt it’s possible. If there is a willingness to act quickly with Bill C-4, at the very least, I would like to see this aspect strengthened.
There are two options, but ultimately, for me, the goal is to protect privacy and not to maintain the current system, which I believe has too much self-regulation.
Senator Moncion: With regard to the weight of this change, can the amendments be made quickly?
Mr. Dufresne: Obviously, this would be done in collaboration with the Senate’s legislative experts, but I think that if there’s a will, we can do it and we can point out certain requirements. We can make provision for the mechanisms, and it can be done. It requires resources.
Senator Moncion: Do you have any examples for us?
Mr. Dufresne: We do have examples. My predecessor proposed amendments to Bill C-76. We will be available to support you as needed, depending on the will of the committee and Parliament.
Senator Moncion: Thank you very much.
[English]
The Chair: We’re now on second round.
Senator Dasko: I was in the public opinion research business, and I do remember when the Personal Information Protection and Electronic Documents Act, or PIPEDA, was implemented. I have to say, it was a fairly painful experience, but we transitioned and were able to deal with the requirements quite well after a certain period of time. Perhaps the political parties can do it as well.
My question is whether you or your office ever hear from the political parties. Maybe this is an issue of privacy; maybe you can’t tell us. Do they ever come to you to talk about the principles of privacy? Do they ever consult your office to get advice about what they could do or what steps they could take?
I have no idea. Except, hearing from them today, I see this is clearly something they are trying to avoid. I wonder whether they have had any interactions with your office with respect to the principles of privacy and implementing changes that they might be undertaking.
Mr. Dufresne: By and large, no, they have not, but I’m not surprised because the regime is geared toward the Chief Electoral Officer, Elections Canada and the Commissioner of Canada Elections. I would expect the political parties to reach out to those organizations, not to mine.
As I’ve mentioned, we worked with Elections Canada in 2019 to prepare joint guidance for federal political parties on protecting personal information. That is available, and I hope political parties look to this and rely on it. Certainly, we would be happy to advise them as needed. So far, I understand that they have close working relationships with Elections Canada.
Senator Dasko: Thank you.
Senator Simons: I want to pick up on a question Senator Moncion asked and something that Senator Cuzner referenced a couple of times.
We are being told — at least it’s being intimated to us, and I want to be careful here — this is a sort of stopgap emergency measure, and the government will attempt to come back at some future date with a more rigorous, robust privacy regime.
The question I have for you is: Is there a danger that if we adopt this lower standard and put it into law, that it will be harder later to apply a more rigorous standard? I can imagine the parties might say, contrary to what they said here, “Wait a minute, these rules are working for us. We don’t want to switch.”
I’m just worried that the argument that we should accept this as a stopgap measure could paint us into a corner down the road.
Mr. Dufresne: I think time is a precious commodity for parliamentarians. There is always a challenge in getting legislation before the House and before the Senate. My concern would simply be, if we’re saying it’s going to be done later, will it be done later? Will there be enough priority and urgency for the matter for it to come back in legislation?
As I say, we’ve been advocating for law reform for the public service Privacy Act for many years. This legislation for the departments was adopted in the early 1980s. We have PIPEDA, which was adopted in 2000. To this day, I do not have order-making powers or fine-making powers, and we stand out in terms of international comparators. Since I started in this role, I’ve been advocating for this, and we’re hoping to have legislation introduced. I’m optimistic, but I’m well aware that there are a finite number of parliamentary days available.
Senator Simons: My concern is that if we adopt this, people will say we don’t need anything else. We heard testimony this morning, which made me giggle aloud on the public record, that the fine for violating this would be $50 for an individual and $300 for a party, which seems — I believe the technical term would be — de minimis, and you wouldn’t have any powers. Those powers would rest with the electoral regime.
Mr. Dufresne: By adopting this, the bill states that this is the national regime. This is Parliament’s intention. They are saying this is how we want to govern this across the country. This is why you’re hearing, from me, the need to make this robust. Having a national regime is not something that I oppose as the federal commissioner, but it has to be at the level that Canadians expect. In my view, Canadians expect more than self-regulation in this context.
Senator Simons: Should it be to the level that British Columbia or Quebec have demonstrated? I don’t necessarily mean it should be like the Personal Information Protection Act, or PIPA, in B.C., but shouldn’t it at least have the same standards as a common denominator that other provinces have already brought forth?
Mr. Dufresne: Those provinces’ laws have been deemed substantially similar to PIPEDA, so I would say the 10 fair information principles in PIPEDA have to be there. Again, there may need to be a contextual interpretation for the realities of parties — that would happen — but those principles are there in Canada and internationally. We would need, in my view, a good reason to lower the bar.
Senator Simons: Thank you very much.
The Chair: There are no other questions from the senators.
To both witnesses, on behalf of my colleagues on this committee, we sincerely thank you for coming today, for being with us, for your willingness to adjust your busy schedules to accommodate us and, certainly, for your advice, insights and experience. They will be very helpful for us as we make our deliberations. Thank you very much.
Senators, we’re going proceed to drafting instructions. I do want to say a couple of things concerning that.
First, parliamentary analysts have provided a draft of the introduction of a report by this committee to the National Finance Committee. That’s available. It will be distributed. In addition, the clerk has reminded me that the order that’s facilitating this says that the Standing Senate Committee on National Finance has the overall authority, but that we must put in our report to them for their consideration. This all has to be done by February 24, as you know. We’re under some time constraints.
Senators, I have, for your consideration, a number of recommendations, which would be sent to the National Finance Committee. The purpose of me creating these in advance is just to focus our discussion. Each one of the recommendations is bolstered by the evidence that we’ve heard today because, in real time, people in my office were capturing the evidence of all the witnesses but for Mr. Dufresne and Mr. Harvey. However, if it’s the wish of the committee, eventually, we can incorporate Mr. Dufresne’s and Mr. Harvey’s advice, which is compelling and supports, I believe, many of these recommendations.
The purpose is to assist in focusing our discussions on what the report by this committee might be. It’s merely that. The recommendations speak for themselves. I’ll speak to them as well. However, I’m aware that there are others that might have recommendations. We’ll deal with that accordingly. I’ll hear the advice of the committee as to how they want to proceed.
Honourable senators, we will now consider drafting instructions for a report on Part 4 of Bill C-4.
Senator Simons: This will be more complicated than the standard set of drafting instructions. Is there any feeling around the table that we might want to consider varying our protocol and doing this in camera?
Senator Batters: I don’t think that complicated is a good reason to go in camera. It is generally a good idea to have these kinds of discussions in public. I am a little stunned at the length of these potential observations and recommendations that we’re potentially going to be dealing with, but I think that, generally, we’ve found that in-public discussions usually lead to a more efficient discussion.
The Chair: I was prepared to do this in public as well.
Senator Tannas: There’s a worthy consideration here for in camera. We have a problem to solve, and the best way we can solve it is that everybody is unencumbered or not shy to give their opinions. I’m comfortable either way, but it is worth considering here. There’s certainly lots of precedent in all the years I’ve been here where we deal with difficult, complicated bills when we’re doing observations, and so on, in camera. I’d love to know what other people think as well.
The Chair: Colleagues, we’re canvassing the idea of whether this next portion, which is really the drafting instructions to the Library of Parliament analysts on behalf of the committee, will be in camera or in public. Senator Simons would like it to be in camera. Senator Batters is not in favour of that. Senator Tannas wants more discussion but is quite willing to go in camera.
Senator Pate: Generally, I agree with Senator Batters. Having this on the public record, so people can see what we’re grappling with, is useful. But given that we’ve just had six hours of testimony and now we have all these documents, which the public can’t see, against what I would usually suggest, my preference is we try and figure out a plan. Maybe then we come in public to talk about the conclusion.
Senator Simons: Yes, that could be it.
Senator Batters: Perhaps there will be very specific parts that might be more appropriately dealt with in camera, but, in general, the best way to make sure — it’s something that all committees should understand when they’re doing things in public. We’ve had six hours of in-public meetings. What can be done is that the part can be read out loud — that is, the recommendation being considered — and we can have that discussion. We’re parliamentarians. I don’t think too many of us are shy around the table to say what we think. We debate in public in the chamber all the time.
That, in general, should be the way we go. It’s always a good idea to remember that people who are watching may not know what we’re talking about unless we’re actually specific about what we’re saying.
Senator Dalphond: I have mixed feelings on that one, but it’s fair to say there are three options before us. One is to remove the part. One is that we keep the part, but we improve it. The third option is that we keep the part, but we add a sunset clause to it, which gives the parties and the government time to build a consensus and come up with a more complete regime, which could be two years or a year and a half. The magic will work, but it takes some time.
Those are the options. There is no problem in discussing this in front of the public. Where I am a bit less inclined to discuss in public is regarding the five or six pages we received from one group today and the other four pages we received from somebody else. On those 10 pages, we will discuss whether we change this line or that paragraph. For this, we could break in camera to try and discuss these things informally and try to come up with shorter versions.
On the big principles, I am not opposed to going in public. To the contrary, the public will see what we are considering. They would understand why we are picking option one or two or three or a new option. Maybe there is a fourth one I’m not thinking of.
Senator Clement: Just for the record, I will always want to not be in camera. I come from the municipal sector, where everything we do is in public. I know that being a parliamentarian is messy and uncomfortable. Certainly, it is for me. I prefer it to be done in public, but I will see what people have to say. If there is consensus, that is fine, but, for the record, I will always be opposed to going in camera.
The Chair: I would like to hear from other senators. It will be the will of the committee that makes this decision.
Senator Cuzner: Being the least experienced around the table, I don’t lean either way. This is the first bill I have sponsored. This has been a great experience, being taken to the woodshed by Jim Balsillie. When I reflect on my time in the Senate, that will always stand out as a special moment. But whether we go in camera, I will be comfortable with whatever we do.
Senator Prosper: I potentially like the approach just mentioned by Senator Dalphond to get into the crux of the options with respect to the part because that seems to be a big consideration for the purposes of our work. Quite similar to what Senator Pate said, this is a new experience for me and a bit of a marathon.
On a number of pages, yes, I’ll be open to going in camera, but if it’s the will of the committee to have everything in public, then that’s fine, too.
Senator Moncion: There could be a fourth option. In order to bring the fourth option, which has not been discussed at all, I am hoping we can go in camera for about 10 minutes. If the will of the group is to do everything in public, then I’m just requesting that 10 minutes to explain the fourth option, and then we can come back in public.
The Chair: Senator Moncion, you’re asking to go in camera notwithstanding that the group may want to discuss this whole substance in a broader way in public? You would like to speak first on that in camera?
Senator Moncion: For the fourth option that I would bring forward, which hasn’t been discussed in public at all today, yes.
The Chair: I need to know what the committee wants to do. Senator Moncion wants to speak to you in camera on another option that is not in the suggested observations or recommendations. You want to do that in camera.
I’m inclined to allow that type of in camera discussion so that this new option, of which we haven’t heard, can be considered in camera. Then when we get back to the larger picture, we’ll either go in camera or in public based on the majority will of the senators. Does that make sense?
Senator Simons: I was a little uncomfortable, chair, with the way you characterized my opening comment, saying that I wanted to go in camera. What I wanted was a discussion about whether we ought to go in camera. I think this has been very useful. Senators Tannas and Dalphond have made an excellent compromise suggestion.
The Chair: I misunderstood what you were saying.
Senator Simons: I was a journalist for 30 years. I believe everything should be in public, but some of this will get awfully unwieldy. That was my concern.
The Chair: Senator Moncion, are you making a motion that we have a short discussion of about 10 minutes on an issue that you think we haven’t heard about?
Senator Moncion: Yes, I move the motion.
The Chair: Is it agreed that we move in camera for a short discussion on an issue that Senator Moncion wants to raise?
Hon. Senators: Agreed.
The Chair: We’ll continue in camera.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Honourable senators, we’re resuming in public to consider drafting instructions for a report on Part 4 of Bill C-4. Pursuant to the government motion adopted on February 5, Bill C-4 stands referred to the Standing Senate Committee on National Finance, which is authorized to take into account any report from the Standing Senate Committee on Legal and Institutional Affairs on the subject matter of Part 4 of the bill during the consideration of the said bill by the National Finance Committee.
Given that the Standing Senate Committee on National Finance must report the bill back to the Senate no later than the end of the routine proceedings on February 24, we are working within a very tight time frame to bring a report forth for their consideration.
In light of these time constraints, the committee will need to provide drafting instructions to the analysts for said report, which we’ll now discuss among ourselves.
As we know and have discussed, there are five options: One is that we report the bill back to the National Finance Committee in the state that it’s in with no amendments.
A second concept is that we ask National Finance, or recommend to them, that this bill be split and that Part 4 come out of the bill and be dealt with separately and independently.
A third option is that a sunset clause be adopted in the bill, which would give the government some time to cure what we think might be some deficiencies.
The fourth option is to consider a number of amendments to the bill — perhaps as many as 10 or more — which would cure the bill, in the opinion of this committee.
The fifth option is to recommend that the National Finance Committee not proceed with Part 4 of the bill in its present form and report that accordingly to the Senate.
With respect to the concept of making no amendments and having the bill go to National Finance with our recommendation that it remain intact without amendment, we’ll have a discussion.
Would you like to lead that discussion, Senator Batters?
Senator Batters: Okay. Apparently, I’ve taken over sponsorship of this bill from Senator Cuzner. No, I have not.
But a couple of important things I think our Senate Legal Committee should bear in mind is the fact, what I brought up during one of the last panels when we were questioning witnesses, that the House of Commons, when they had this bill in front of them at second reading last June — a couple of months, or less, after those very MPs had been door knocking, contacting voters, having all this contact with voters for months and sometimes years before that — they voted at second reading 336-0.
Then a third reading stage in the House of Commons was not a standing recorded vote, but they also approved it and sent it over to the Senate the same day right before we rose in December. These were duly elected MPs, not political parties. They were MPs who were elected to vote on behalf of their constituents, 336 of them at one point.
Also, I thought we actually heard some important testimony. One thing as I go through these many pages of observations and potential recommendations that I didn’t see referenced was the important testimony we heard from the political parties’ chief counsel that came from three of the major political parties: The Liberal Party of Canada, the Conservative Party of Canada and the New Democratic Party of Canada.
They gave us cogent evidence about why this was needed, and that’s to build this national framework so we don’t have 13 different potential provincial and territorial frameworks, but something that would actually help to protect Canadians’ privacy.
Those are some of the important reasons I think should be considered by this committee.
Certainly, yes, the Senate is sober second thought, always. But at the same time, on matters of electoral changes, we need to, I think, pay some level of deference to the opinions of the elected house.
Senator Tannas: I acknowledge what Senator Batters has said. But I would point out that when the MPs were at the doors, in this bill, items 1, 2 and 3 would have been something that I think MPs would say reflected what they heard at the doors and what, in their vote, they were voting for.
I remember our opening speech on this from the sponsor was this bill does X, Y and Z, all kinds of wonderful things, and there’s a technical amendment. If that’s how it was treated in the House of Commons, I don’t blame MPs for one second for doing what they did. They were focused on the important pieces of 1, 2 and 3 as opposed to Part 4 and privacy.
I don’t know how much time was spent on the doors. I don’t know what the platforms were with respect to the parties and how, or if, they were talking about reining in their privacy restrictions.
That’s that. I think we have a role here to play in sober second thought. It’s not very many times where it’s been as obvious to me as it is here that recommending the status quo isn’t an option. That’s my own view. I don’t see it that we should say no amendments here, no issues, nothing to fix, let this go.
Thank you.
Senator Simons: I very much take Senator Batters’ point that we are, with the possible exception of Senator Tannas, all of us, appointed and not elected.
Senator Tannas and I will agree to disagree about how elected he was.
It is traditional that we show deference to the elected house for all the reasons we understand. But I think this bill uniquely calls upon the Senate because the political parties, and the MPs who are members of those parties, are in a conflict of interest. They are regulating themselves. They are choosing regulations that are the lightest possible, with the most minimal penalties if those rules — which they will set and enforce themselves — are broken.
I think it is at a moment such as this that only appointed senators, and only appointed senators who, in the majority in this room are independent, must then exercise a unique responsibility to say, my dear friends in the other place, you have made a mistake in regulating yourselves in this way. They cannot perforce come to this decision without bias.
We are the only people who have heard evidence. We are the only people who heard witnesses. In the House, they didn’t even call these witnesses.
We fought for the right to look at this section 4 in our committee. We heard the evidence. The evidence was self-evident. Now I think we must take on the responsibility that comes with being that last check.
[Translation]
Senator Miville-Dechêne: I will be brief. I’m also opposed to the idea of recommending the adoption of Part 4 in its current form. There was no debate in the House of Commons. It’s true that the fact that the bill was passed unanimously — minus one, I believe, from what I understand — is impressive.
However, our role as unelected senators is to give it a second careful review. I would say that, in this case, all the experts we have heard from have told us that the minimum privacy standards have not been met. There is therefore no debate on that point.
What this bill proposes is less than the minimum privacy standards, the famous 10 principles that Commissioner Dufresne spoke to. I am therefore quite comfortable with the idea that we cannot accept the bill as is.
[English]
Senator Cuzner: I’ll try not to speak to the “why,” that is why Part 4 was included in the bill, but I’ll speak to what is in the bill.
We are faced with measures that will have an impact on many Canadians. The GST bill is in here as well. The Canadian Home Builders’ Association is saying they have to unstick the whole of that industry and sector right now, with all the issues around housing.
What we are faced with now, I think Senator Batters articulated it very well. Certainly, from my position, I’d be willing to move it forward without amendments.
Senator Clement: I want to fully endorse what Senator Simons said. Historically, we show great deference to the elected, as we should. But on this topic, to me, there’s a clear conflict of interest.
I also want to add that this part doesn’t belong in this bill. I don’t like this tendency now, for political expediency or whatever reason, to put things that don’t belong in other bills. I don’t think that makes sense to Canadians, and it certainly doesn’t make sense to me. Thank you.
Senator Dalphond: Yes. I am somebody who believes that the unelected must defer to the elected, especially on electoral issues. However, I think I have to defer to what seems to have been a considerate proposal.
What we have before us is something that no witness was heard in the House of Commons. The committee of the House spent 20 seconds on Part 4 when the witness who came before us from the Privy Council exposed what it was. There was no question. Not that I want to say to the House of Commons how they should operate or how their committees should work.
I’m listening to the public and to those who seem to have been unheard. The role of the Senate is to listen, especially to those who are not heard, because sometimes a majority or parties have interests that are not necessarily convergent with the interests of smaller groups. It’s our role to listen to them. I think we did listen to them today. It seems that there are serious concerns.
For me, I think we have to prepare a report that will express not support with Part 4 but express, at least at a minimum, concerns that were raised and repeat, at least at a minimum, the concerns we have expressed in the past — in 2024, I think — dealing with the previous legislation, or 2023, that we raise concerns about that.
For me, I cannot support the option that is presented to us for these reasons.
The Chair: One point I’d like to make is the Senate can show deference to the House of Commons, but that doesn’t mean we can’t amend this bill and send it back to them. Deference would be shown when it comes back to us after it’s been to the House of Commons. That’s the point where we might show deference.
Senator Pate: Being conscious of the time, staff, and it’s been a long day for everybody, instead of people repeating themselves, if I could be so bold as to suggest, unless there’s disagreement, let’s move ahead because, otherwise, we’ll all be saying, yes, we support this.
Instead of doing that, let’s just —
The Chair: We have to get this done tonight and give instructions.
Senator Pate: Let’s all vote.
The Chair: One moment.
Senator Batters: I wanted to respond briefly to a couple points that were raised.
First of all, on this whole issue of whether this potentially could be a conflict of interest for the House of Commons and for the members of the House of Commons to deal with a bill dealing with elections. If that were the case, then MPs would not properly consider any election amendment act, which obviously is not the case. I don’t think that’s correct.
Also, I agree, and I’ve said many times at this committee and elsewhere in the Senate, the government should stop doing this thing of having parts of bills that have nothing to do with the main part of it. Primarily, they do it in budget implementation acts, and usually we make some sort of a strongly worded observation about that.
But a strongly worded observation to tell them about it is one thing: to consider this very bill when they have done it so many times on so many other issues, to consider that, no, this is the time we’re really going to put our foot down on this; I don’t think it’s the appropriate time to do it. Thanks.
The Chair: Any other comments? Colleagues, with respect to what I would call maintaining the status quo, I’ll ask which senators are in favour of maintaining the status quo? Raise your hands.
Which senators are against?
That issue is decided in favour of moving forward.
The next issue then is, and Senator Tannas has suggested this to me through the clerk, that we deal with what I would call primary recommendation number 1 on the document that I provided for discussion, which is a recommendation that the Standing Senate Committee on National Finance recommend that the Senate not carry Part 4 of Bill C-4.
The rationale there is, across panels, witnesses warn Part 4 is primarily jurisdictional but substantively thin, removing or foreclosing meaningful privacy protections while replacing them with party-written policies.
Elections Canada — the electoral officer — stated the bill proposes a complete code but leaves parties with full discretion and no minimal standards, calling it a step back from Bill C-65. Further, he questioned if Part 4 were urgent, given that Bill C-47 already asserts a complete code and noted Part 4 adds little or no substantive protection.
The Commissioner of Canada Elections emphasized operational enforceability problems, big policies, non-uniform standards and a lack of necessary investigative tools for the administrative regime only.
I’m putting that forward. That is what would be the most efficient way for us to deal with this as a recommendation to the National Finance Committee. In other words, amend the act by deleting that portion of Part 4.
Senator Tannas: I was persuaded by the lawyers from the political parties. I believe it to be the case that it was never the intention that they wanted to be regulated by all the provinces across the country. They went to court. They fought to protect the jurisdiction. They tried on a couple of occasions to get this right.
For me, I think killing Part 4 and having them start all over again will do tremendous damage to that cause with the court case that’s outstanding. To me, killing Part 4, I wouldn’t be in favour of it.
I think the jurisdiction of the federal government and Canada in the affairs of the national political parties needs to be protected.
Senator Batters: Thank you. I’m glad that Senator Tannas brought up the entire panel of the parties’ lawyers because, as I stated earlier, I thought they provided cogent testimony to talk about why this type of national framework was essential to what they do.
Also, noting at the very start of the rationale, where it says “across panels,” that disregards the entire panel of the parties’ lawyers that we had. They certainly did not agree with that particular part of the rationale.
I’m not sure how this is supposed to be done, if this is more of a discussion item to set out specific evidence from certain witnesses but not others, like the Chief Electoral Officer and the Commissioner of Canada Elections, a few of the things they discussed here, or if it’s more a discussion point so we can have that discussion here.
I wouldn’t be in favour of, even if this part carried — which I’m not in favour of — I don’t think that’s the way we should do things, to selectively quote, because there are other things that, frankly, the Commissioner of Canada Elections said that actually endorsed that type of a national framework.
Senator Simons: In response to what Senator Tannas said about having a national — I know this is a live debate in the B.C. Court of Appeal, but I was persuaded by the Chief Electoral Officer’s argument that Bill C-47 already has a complete national code and that this is duplicative in that sense.
I agree with that panel of lawyers that it doesn’t make sense to have a higgledy-piggledy code with different standards in different provinces.
I was persuaded by the Chief Electoral Officer’s argument that there is no urgency to rush this, and we could let things play out in the court.
The B.C. Court of Appeal might well decide in favour of the parties. We are pre-empting that court case and the chance to have that heard by the Court of Appeal of British Columbia.
In answer to Senator Batters’ question, I’m taking this as a motion. I don’t know if that’s how you meant to frame it, Senator Arnot. It is already past time that we were supposed to have let our folks go. Maybe we can just have an up-down vote on this and move on to the next thing. Otherwise, we’ll be here all night regurgitating.
The Chair: This is about giving instructions to the analysts.
Senator Simons: Right. I move that we give instructions to the analysts to incorporate recommendation 1 with fine-tuning the language to be approved by steering.
Senator Pate: Second.
Senator Dalphond: To remove Part 4? The suggestion would be that National Finance propose to remove —
Senator Simons: Let’s vote. Either we agree or we don’t.
The Chair: More discussion on that point?
Senator Dalphond: No, I wanted to make a comment.
Senator Simons: I move that we vote.
Senator Dalphond: Yes, but I had my hand raised if you allow me.
I tend to agree with Senator Tannas that to remove it, first, the three representatives of the parties were, to a certain extent, convincing about the need for this part to have a national regime and not a patchwork regime, which I support.
The second point is that I noticed that the members of the second panel said that they wanted some parts to be removed but wanted some parts to be kept.
So if we’re removing the whole Part 4, we are maybe throwing the baby out with the bathwater. I think that would be too much.
Senator Tannas: Let’s vote.
The Chair: Is everybody ready for the question on voting in favour of what’s called recommendation 1 on the paper that I presented, in favour of killing the bill.
Senator Batters: Let’s do a recorded vote, please.
The Chair: A recorded vote. All in favour? Everybody votes.
Senator Batters: The clerk will call it out.
Senator Dalphond: A point of order. If we vote for this, does it exclude we cannot vote for any other options? Because we can have two or three things we recommended to National Finance? Okay, fine.
Senator Simons: Like a statement of claim, and in the alternative; if they don’t like this, then this. If they don’t like this, how about this?
Senator Batters: Chair, if this carries, then obviously there’s no need for anything further because Part 4 is not being proceeded with, correct?
The Chair: Well, there is because we’re not making a decision. It’s all going to be decided by National Finance. We’re going to give them the option, number 1 perhaps, but we also have contingent recommendations that flow. They’ll make that decision, not us. We’re creating a menu for the National Finance Committee.
Does anybody have any further questions? Are you ready to vote?
Senator Simons: [Technical difficulties] is that we give it to the analyst and steering to massage this into a recommendation.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Arnot?
Senator Arnot: In favour, yea.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Nay.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yea.
Mr. Labrosse: The Honourable Senator Cuzner?
Senator Cuzner: Nay.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yea.
Mr. Labrosse: The Honourable Senator Moncion?
Senator Moncion: Yea.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yea.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yea.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yea.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Nay.
Mr. Labrosse: Yeas, 7; nays, 3; abstentions, nil.
The Chair: Accordingly, this recommendation will be carried for the purposes of creating a report to the National Finance Committee. All right.
Senator Miville-Dechêne: Can you include the exact numbers in those recommendations, votes against or for, or no? No, okay.
The Chair: We’re not going to report on that to anybody.
Senator Miville-Dechêne: Okay.
Senator Simons: This is not in camera. Anybody can look it up.
Senator Miville-Dechêne: People will know.
The Chair: We now have three other options. There’s the split bill option. There’s the sunset clause option. Then there is the number of amendments option. How do you want to proceed on those?
Senator Simons: Let’s keep the number of amendments to the end. Let’s get through the easy stuff — not easy, the more binary — first.
The Chair: Split bill. Does anyone have questions, concerns or comments on that? That’s where we would recommend National Finance give notice to the House of Commons that we want the bill split. Any questions? All right. Ready to vote on that? Do you want a recorded vote?
Senator Batters: Can you repeat what we’re voting on? Thank you.
The Chair: We’re voting on the concept that the bill be split and that we would recommend to National Finance that they communicate to the House of Commons that the bill would be split. That’s the procedure, as I understand it, splitting the bill in the proper mechanism, whatever it is.
Do you want a recorded vote on this?
Senator Batters: Yes.
The Chair: Recorded vote, in favour of splitting the bill.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yea.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Nay.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yea.
Mr. Labrosse: The Honourable Senator Cuzner?
Senator Cuzner: Nay.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yea.
Mr. Labrosse: The Honourable Senator Moncion?
Senator Moncion: Yea.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yea.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yea.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yea.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: Yeas, 7; nays, 2; abstentions, 2.
The Chair: Accordingly, that recommendation is adopted. The sunset clause has to do with Senator Tannas and Senator Prosper, and we can refer to it.
Senator Tannas: The sunset clause would basically say, let us adopt the status quo but add a sunset clause such that it would disappear. Part 4 would disappear within a period of time. We recommended two years. That would then allow the court case to continue to be protected and to carry on, which is what the lawyers from the political parties were most concerned about. That was made clear.
The government is most concerned about it. That was made clear. That would clear the path for them to do that, keeping Part 4 intact.
It would also, though, allow the government to follow through on what has been hinted at, as they are busy thinking about exploring opportunities to properly fill the regime with something that would be more acceptable to the public and to those that are experts in the area who have given us the testimony.
They would have a couple of years then to get these proper pieces of the privacy regime in place, custom-built for the political parties and the realities that they have.
The hope and the prayer would be that, somewhere along the way, this government or a future government would usher in those changes being hinted about now.
I’m moving that motion.
Senator Pate: I second it.
Senator Simons: I have a question for Senator Tannas. I love the idea of sunset clauses because they make me think I’m on a beach with a mai tai. I like the idea of giving them a clock, but the complication is that, regarding some of the fine print of the bill, like the retro activity clause and some of the deletions, we have to be very surgical about where the sun was going to set.
Senator Pate: I thought it was the whole of Part 4.
Senator Tannas: Yes, it is the whole of Part 4.
Senator Simons: There is a retroactivity. Do we make it non‑retroactive when the sunset clause —
Senator Tannas: Yea.
Senator Simons: I am not a lawyer, so I would appreciate if the lawyers on the committee and our legal analyst could help me through this.
Senator Dalphond: I volunteer an opinion, but it’s free, so it’s worth the price you paid for it.
The whole of Part 4 will be applicable, including the retroactive aspect. Most likely, that will mean that the Court of Appeal will decide the issue is moot and may not decide to rule on it. But within two years, the spirit is that the government and the parties will build a consensus. We were told by the Privy Council representative that Bill C-65 represented a consensus, but what is being asked is an even bigger consensus. They need time to consult. So they will get two years to consult and come up with something — a regime that will be not only what they offer now but one that is fully protected, is to the benefit of Canadians and avoids a patchwork between parties, which means a patchwork for Canadians.
Senator Batters: I’m not sure how it can possibly make sense to have someone who voted to remove the entire part of the bill because it wasn’t needed and because it wasn’t good to now say, no, it’s important; we need to have it in there for two years. We’re buying what the political party’s lawyers are saying, and then, poof, it will go away in two years.
I don’t understand the logic of that.
Senator Simons: It is like a statement of claim. You could do this; if you don’t want to do this, you could do that.
The Chair: Here is a little problem. Which number is the sunset clause in your document? There’s the explanation: It’s number 11.
Senator Simons: The two-year coming-into-force period.
The Chair: You don’t like 9 and 10?
Okay. Having read that now, are there further comments or questions about the meaning of the sunset clause before we have a vote on it? Are we ready to have a vote then on Senator Tannas’ motion? All right. Let’s proceed with the vote. It is a roll call.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yea.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Nay.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yea.
Mr. Labrosse: The Honourable Senator Cuzner?
Senator Cuzner: Nay.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Yea.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yea.
Mr. Labrosse: The Honourable Senator Moncion?
Senator Moncion: Yea.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yea.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yea.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Yea.
Mr. Labrosse: Yeas, 8; nays, 2; abstentions, 1.
The Chair: That being the case, the analysts will be instructed to make the sunset clause an option on the menu for national finance.
The Chair: All right. Now we have the last item, which is a number of amendments. They’re suggestions. I haven’t seen all of the ones that Senator Tannas and Senator Prosper proposed.
Senator Simons: Has the clerk circulated mine?
The Chair: I don’t know. It’s being circulated now. How do you want to proceed with this? We have Senator Simons, which is basically Bill C-65.
Senator Simons: It will come later.
The Chair: No, we have that. I put forward these recommendations, number 2 through to number 12, based on the testimony that we heard today. They’re concepts that do not refer to any previous legislation.
I put them forward as concepts because I think it would be safer and easier if the committee wanted to address a number of issues of concern based on testimony from civil society groups and others.
Senator Simons: My suggestion is very complimentary to yours and to that of Senator Tannas and Senator Prosper. We have the text in Bill C-65 drafted with legal language, and we could import sections F, G, H, I, J and then the definitions of “significant harm.” As our analysts try to make sense of this, it could be a ladder on which they hang things.
I thought that might make it more sellable in the sense that this is the actual text of a bill they already proposed once. I’m starting with F because the previous text is just the same as Bill C-4, and all of this was not included. I put that in the policy for personal information, which is after required content. So I’m putting it at 446.6. That ends with E, and then my suggestion is that F would come right after E.
Senator Tannas: We don’t have to do all this fancy language; we just have to give a recommendation. So would it make sense to incorporate into Part 4 the provisions that were in 65?
Senator Simons: Yes, or something comparable. Now this doesn’t cover all the concerns we heard today, because this section doesn’t deal with a notification if your privacy is breached or the right to correction, and there are a couple of other things it doesn’t touch on, but this would be a chunk of what we could suggest.
Senator Tannas: What we did is that we incorporated the recommendation of the Privacy Commissioner in his submission.
Senator Simons: The pillars of the PIPEDA.
Senator Tannas: That is what is in ours: his recommendation as opposed to 65. Those are the three. We’ve taken recommendations of a compilation of all the testimony. You took 65, and we took exclusively that of the Privacy Commissioner and then added an added wrinkle, which would be a two-year coming into force.
Senator Simons: Is it unfair to say to the analysts, here is a lot of good material? Can you make something out of it? Or is that an unreasonable expectation?
Senator Tannas: Could we describe it that way? Could we just simply say, as the other alternative, to pick Bill C-65 wording, to pick the Privacy Commissioner’s wording or to pick this synopsis of the study and let them do it? All we’re doing is trying to recommend these as options for consideration.
The Chair: I’ve just conferred with the clerk and the analysts. We need to make this instruction relatively generic in order to accomplish it. So I’m going to let our clerk and analysts explain the easiest way to capture the ideas while making the report as generic as possible.
That is because if we add all of this and have to translate it, we might not make the deadline.
Mr. Labrosse: If this is the option you wish to go with, be mindful of the time constraints involved in drafting such a long observation, given that translation is required and that the report can be tabled with the clerk next week while the Senate is adjourned in time for the national committee’s consideration if they move forward with it in time before February 24. I’ll let the analyst speak to the content of the matter if they have anything to add.
Dana Phillips, Analyst, Library of Parliament: In terms of Senator Simon’s recommended observation, that could be summed up as a reference — as Senator Tannas suggested — to the relevant provisions of Bill C-65. For the remainder, there is certainly some overlap, and there could be a reference made to minimal privacy protections referenced by the Privacy Commissioner or certain key witnesses — the 10 privacy principles.
Just quickly looking through it, there is more here. It is up to you to decide what you want to include. Obviously, we’ll do our best to put it together in a concise, cogent package.
Senator Miville-Dechêne: Some of the recommendations of Senator Arnot are the same as those of Philippe Dufresne, so we’re probably okay if we refer to what he said.
The Chair: There are ways to do this generically, which will give enough information to the National Finance Committee in the areas in which we think the bill should be amended.
Senator Miville-Dechêne: We should make it short; otherwise, they won’t even read it.
Senator Batters: I find this whole situation with potential amendments to be completely unworkable right now. We have pages of things that have been drafted and then given to us. We’ve had a difficult situation here, I understand, but they were given to us right before we were talking about this.
I haven’t been able to look at this in any detail. On some of these issues, I would have liked to have an opportunity to discuss some of these things with the party lawyers to find out if these are things for which they have significant reasons why this shouldn’t happen or why this is actually unworkable. It would have been very helpful to know about that beforehand.
Frankly, Bill C-65 is being discussed as if it was basically in place already. Not even close. It was at second reading at the House of Commons. It was at committee, but it was not concluded at committee yet.
Maybe these parts of the bill would have been met with favour from the House of Commons, or maybe there were things that needed to be amended in these parts that are now potentially being plugged into this.
I understand it is a difficult situation. I am trying to avoid this becoming an even more difficult situation, as those of us on steering are going to have to work to try to make it some sort of recommendation to the National Finance Committee.
Working what? Just general areas into it? Let’s look at how many pages this part is. We’re probably going to have a report that includes potentially recommended amendments that are going to be longer than the actual part is.
We have to be realistic here about what we’re saying. Are we saying, amend every part five times over? That is what it seems like we’re doing right now.
The Chair: One of the things that is a problem here is that we have heard from civil society very acutely that there are significant concerns, and that if the bill is split, some of those issues that you’re talking about will not necessarily be cured because then we can have a full and complete study on that, which is what civil society was calling for.
Senator Pate: I hear Senator Batters’ concerns, and perhaps one of the ways to say it is that we’ve gone through this, this, this and this, and in the alternative, this and this. Finally, in the alternative are significant amendments, and there were an array of options considered. You can review all the evidence, or you can go with a couple of examples of this particular witness — the ones you’ve just listed — or even consider what was in the previous bill, and leave it at that. It can be fairly succinct. But the message is clear: The problem is so profound that something has to be done.
Senator Tannas: I agree. The key to this is to say, if you look at all of the status quo, the sunset on the status quo, splitting the bill and giving us the time to do the work, killing it or attempting as we’re flying the plane to build the plane. Here are all the things that civil society said. Here is what the Privacy Commissioner said. That could be, in and of itself, a full amendment. Bill C-65 could be a full amendment. Or you can do some combination thereof. The Senate could do some combination thereof in their deliberation, right? So it’s building the plane while we’re flying because we have been asked to do that.
But, again, at the front end, we have decided that we cannot recommend carrying on the status quo.
[Translation]
Senator Miville-Dechêne: With the obvious aim of simplifying this part, we could also decide to retain only Commissioner Philippe Dufresne’s recommendation, which clearly must encompass part of what is stated in Bill C-65, since it was presented way earlier. He made this recommendation to us directly, while reviewing the bill.
We could take only that one, and that would simplify things. It’s not that I think what you’ve done is a bad idea, Senator Simons, but I think it somewhat complicates matters.
What is most relevant to our study is what Commissioner Dufresne has said.
[English]
Senator Simons: I grant you that this is very imperfect, but we have been given a very imperfect set of circumstances. I looked at Bill C-65 and thought, this is better than that — not that it’s perfect but just a starting point. Many of the things in that section of Bill C-65 are things Senators Arnot, Tannas and Prosper have said. I don’t care how we say them. I have no ego invested in my approach. It’s just that these are the things we need to say: There is no protection for this; there is no protection for that; there is no protection for the other thing; we want to see those protections.
The Chair: Do you feel comfortable with the instructions?
Senator Dalphond: We must deal with the whole bill as two other parts. Compelling arguments were made that these two other parts have to come into effect sooner rather than later because people are buying houses or waiting to buy a house. So we must make sure they get the cheque for the credit. Some other people are waiting to get tax reductions because we are going to fill our tax forms for 2025 now, and it has to be in place.
In my view, that means the bill has to come out from the Senate, and if it has to go back to the House, all that has to be done in a very short time frame.
That brings me to look at Bill C-65 and all the other amendments you have suggested, which are well-crafted, but that will need more time to consider, and I don’t think we have enough time to do a proper job of drafting by ourselves two or three pages of amendments to the bill.
That assumes that National Finance Committee is ready to carry that burden, which is impossible, because they have to report to the chamber by February 24. So they receive our report by sometime next week, and on February 24, the National Finance Committee is meeting, and they will have to decide the clause by clause, and when they come to Part 4, they will have to decide what to do with Part 4.
I don’t think there is time to amend; it is impossible; it is unrealistic.
It would be unrealistic to debate these amendments on third reading on the floor for three or four days. At the end of the day, that leaves us some options but not redrafting. We have to be realistic. Either we propose the sunset or the removal, or we adopt. Those are the three options. We have to wait for the answer from the House of Commons to agree to the split.
Senator Moncion: Even before we send it to the Senate to submit.
Senator Dalphond: We have to ask for permission to split.
Senator Moncion: But they can do it before; it has been done before.
Senator Tannas: I agree with Senator Dalphond, actually. This process has helped us. How would we explain to 105 senators when we’re not really sure what we want here.
While it’s a valiant effort to try and rewrite the bill for them, Senator Dalphond and Senator Prosper agree that it’s either status quo, kill it, split it or sunset. We withdraw our proposal. Thank you.
Senator Pate: Seeing as we’re all done with that, I suggest strongly worded observations about the one option to amend, but that’s not possible because of the time frame. I think of this as your usual question: Why are we putting all of this in a budget bill? Those kinds of observations could be made — or even just those two are fine with me.
Senator Simons: Senator Tannas speaks with great clarity here, but to pick up on what Senator Pate said, we do need some of the work done by Senator Arnot, Senator Tannas, Senator Prosper and their teams to provide language. I’d love to see the analysts use it provide the context.
We need to have a justification off the top of this for why we are suggesting such radical solutions as dropping this section or splitting that section. I believe our analysts can look through what has been done by Senator Arnot, Senator Prosper and Senator Tannas and their teams and pull from that language.
I think even Senator Batters was uncomfortable with some of — I don’t want to put words in your mouth, but you didn’t look entirely happy with some of these suggestions either.
I do think we need a framework — I hate the word “framework” — that explains why we are so frustrated and why we believe these things. It doesn’t have to be a 750-word essay but some paragraphs off the top.
I would only ask one tiny thing: Please don’t say “fulsome” because it is an insult; it’s not a compliment. The word “fulsome” means something that is smarmy and disingenuous. It does not mean full-throated. It’s a very rude term, and I’m amused by the way people use it as a compliment. That’s not what it means.
Senator Moncion: I just want to make sure that you also mention the number of amendments that would be required. That’s the conclusion we’re coming to — that there are so many amendments to be added to Part 4 that it becomes an unworkable bill.
The Chair: That demonstrates the need for a complete debate and full research.
Senator Tannas, you were just saying the three —
Senator Tannas: We really have three choices that we think the Senate should consider: killing it, splitting it or putting a sunset on it and waiting for the government to make the necessary improvements within a period of time.
The Chair: I just want to make sure of one thing. After conversation with the clerk and the analyst, they feel they’re able to capture the essence of what you’re describing in a manner which would reflect the discussion.
Colleagues, unless there are further comments, we’re moving to complete the discussion.
Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report in both official languages taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes, as required? Agreed or not?
Hon. Senators: Agreed.
The Chair: I thank all the members of this committee and others who have joined us for their active participation and contribution over the course of today’s three consecutive meetings. That could be a world record; I don’t know for sure. Your engagement has been greatly appreciated.
(The committee adjourned.)