Making Life More Affordable for Canadians Bill

Honourable senators, Part 4 of Bill C-4 is about whether Canadians retain meaningful control over information about themselves in the very process by which political power over them is sought.

The scrutiny afforded to this portion of the bill in the other place was limited, markedly so, relative to its constitutional and democratic implications. Part 4 governs how federal political parties may collect, analyze, combine, model and act upon personal data about Canadians. That demands deliberation. The debate is not about whether Parliament has jurisdiction over federal elections. That has been settled. The question is what Parliament chooses to do with that jurisdiction.

Will Parliament create meaningful, enforceable privacy safeguards for Canadians using that jurisdiction?

When Canadians hear that Parliament is legislating how political parties may use their personal data, they expect effective safeguards. Yet, multiple witnesses testified that Part 4 resolves a jurisdictional question while leaving substantive protections undefined.

For example, the Chief Electoral Officer testified that the bill would create what he described as a “complete code” but without embedding minimal privacy standards, and that, in his view, represented a backward step from earlier proposals, such as in Bill C-65.

The Canada Elections Act already declares that it establishes a “national, uniform, exclusive and complete regime” governing political parties’ handling of personal information. However, Part 4 would repeal and replace elements of that framework without embedding baseline statutory standards.

The Commissioner of Canada Elections testified that enforcement would be operationally difficult where standards are vague, non-uniform and unsupported by adequate investigative tools. Witnesses identified gaps, anomalies and ambiguities in Part 4 that make the legislation impossible to enforce. Jurisdiction alone does not create confidence. Protection of rights does.

Part 4 excludes the application of provincial privacy regimes to federal political parties. It leaves each party to define its own privacy standards within broad parameters. That is not how privacy law operates elsewhere in Canada. In commercial, public and provincial regimes, baseline standards exist. They do not exist in Part 4. These protections are not abstract. They apply to voters, donors, contributors, volunteers, employees and businesses that participate in the democratic process.

Canadian citizens sometimes unwittingly provide personal information to parties, sometimes very sensitive information, in reliance on the integrity of the system.

Political campaigning is no longer episodic. It is continuous. It is data-driven. It is individualized.

Modern campaigns do not merely target demographic categories. They model individuals. Persuasion increasingly operates through prediction. Databases are not neutral. They could contain information that includes age, ethnicity, religion, language, gender, race or other characteristics closely linked to protected human rights grounds.

Canadians are entitled to know whether such characteristics are being used — directly or inferentially — to categorize or prioritize them, or even exclude them from political engagement.

When data analytics intersects with human rights dimensions, the need for transparency and safeguards increases, not decreases. That shift demands stronger safeguards, not weaker ones. Around the world, democracies are confronting the integration of predictive analytics into political systems.

The risk is not that Canada intends such a model. The risk is drift — gradual normalization of opaque behavioural profiling. Guardrails exist to prevent drift. This legislation has no meaningful safeguards.

Part 4 establishes jurisdictional boundaries. It does not establish behavioural boundaries for political parties.

Who holds a primary interest in the political data of a citizen? The individual citizen does. That is a principle which underlies modern privacy law. It is not ideological. It is structural.

We are sometimes told that the Senate should defer to the other place. I agree. Deference is appropriate where legislation has undergone serious study, detailed amendments and careful scrutiny.

But where there is little evidence of substantive consideration of privacy standards, deference becomes abdication. The record does not demonstrate that minimum safeguards were debated. It does not demonstrate that comparative analysis was done. In such circumstances, the Senate’s role is not ornamental. It is corrective.

We are told this is temporary, that improvements may follow and that legislation may follow. The fundamental problem is this: If Part 4 becomes law, will there be motivation or incentive to pass new and comprehensive legislation? Answer: not likely.

Part 4 gives political parties a get-out-of-jail-free card, retroactive 26 years to the year 2000. Why? No credible explanation has been put forward.

There is no sunset clause. There is no statutory review trigger. There is no binding obligation to revisit this framework.

Retroactive legislation is not unprecedented. Parliament can do it. But where retroactivity intersects with active litigation or ongoing legal questions, transparency about purposes becomes very important.

Retroactivity should not be incidental. It should be explained. This was not done.

Temporary democratic law often becomes permanent democratic practice.

Parliament had a prior model in Bill C-65. It had language available. Choices were available. Bill C-65 contained more detailed privacy provisions, including clearer obligations and safeguards.

It is therefore reasonable to ask: Why were those elements not carried forward?

Where Parliament lowers the regulatory bar, it is appropriate to articulate the justification. That has not been done.

The suggestion that stronger privacy standards would burden volunteers is misplaced. No regulator identified volunteers as the systemic risk. A volunteer knocking on a door is not a problem. The problem is an inadequately regulated behavioural database.

Federal jurisdiction over federal elections is not in dispute. Invoking jurisdiction as justification for weak standards confuses authority with substance.

This is not a jurisdictional issue; it is an exclusivity issue.

Political parties are not businesses. That is true. That raises the bar. It does not lower the bar. Businesses sell goods. Political parties seek governing authority.

If privacy standards apply to retailers and hospitals, surely they must apply at least as rigorously to those who seek political power over Canadians.

Democratic institutions require stronger protections, not weaker ones. Temporary measures in this domain are not benign. The stakes are too high. Democratic values are at risk.

Part 4 permits political parties to define their own privacy standards. They get to regulate themselves. This should concern every Canadian.

The witness Jim Balsillie described attempts to characterize Part 4 as strong privacy legislation as, in fact, “gaslighting.” The language is sharp. The concern is serious.

Witness Elizabeth Denham, the former United Kingdom Information Commissioner who investigated the Cambridge Analytica scandal, asserted that Part 4 is unsalvageable. I agree with that observation. Canadians deserve a fully scrutinized and debated stand-alone bill to protect their privacy rights.

The absence of embedded standards makes structural correction difficult after the fact. Colleagues, it is more prudent to design the architecture correctly at the outset.

Canadians deserve and expect to have their privacy rights protected by the highest standards available.

When independent institutions converge in caution, Parliament should pay attention. A rule that cannot be effectively enforced is not a rule. It is an aspiration.

We are told that urgency compels passage. Urgency, however, does not negate responsibility. Urgency does not eliminate safeguards. Urgency does not explain why stronger language from prior proposals was removed rather than retained.

The three affordability components of Bill C-4 are timely. Canadians need help, and they need it now. Nobody doubts that.

Part 4 of Bill C-4 does not have the same degree of urgency. It needs more time and more study. The simplest solution is to remove Part 4 from the affordability bill, as it has nothing whatsoever to do with affordability.

Political data has democratic value. A political database is not measured in clicks. It is measured in seats, government formation and legislative authority.

The solution, colleagues, is not complex. Canada already has a mature privacy framework. Federal jurisdiction is appropriate. Weaker protections are not.

The Senate’s function is not obstruction. It is refinement.

Colleagues, Parliament legislates. It also leaves a record. Courts interpret legislation by its words. But when those words are unclear, they may look to the parliamentary record to understand what Parliament’s purpose was.

Future readers may ask these questions: Did the other place demonstrate due diligence? Did they understand the implications? Did they consider the alternatives? Did they heed the warnings? This debate demonstrates that stronger protections were available and were seriously considered in only one place: the Senate.

Honourable senators, we are deciding whether political parties may operate under a weaker privacy standard than most other major institutions in this country. If that is Parliament’s intent, it should be explicit; if not, Part 4 requires amendment or deletion.

Democracy requires free elections. It also requires that citizens retain sovereignty over their own information. Consent requires knowledge. Knowledge requires enforceable rights. Enforceable rights require law. Law requires enforcement.

Democracy does not belong to political parties. It belongs to Canadian citizens. Citizens cannot meaningfully govern themselves if their political identities may be defined, profiled and acted upon in ways they cannot see. For those reasons, I cannot support Part 4 of Bill C-4 in its present form.

The risks identified in this chamber by witnesses are not speculative; the safeguards omitted are not theoretical. When democratic political parties regulate themselves without minimum standards, public confidence in the system evaporates.

The Senate’s duty — our duty today — is not to ratify inadequacy; it is to correct it. Where citizens’ democratic rights, human rights and privacy rights intersect, caution must prevail. Protection is paramount. The time is now.

Part 4 is hopelessly flawed. The Senate must stand up for Canadians. The unelected Senate is the last bastion protecting Canadians from the diminishment of their privacy rights, as proposed and directed by the members of the other place.

Part 4 is an empty box. Canadians expect better. Canadians deserve better. Canadians need better.

Colleagues, I urge you to delete Part 4 from Bill C-4, as Senator Clement proposed in her amendment. I am voting in favour of her motion. I encourage you to do the same in order to protect the fundamental credibility of the Senate. Thank you.

Senators Carignan and Housakos would like to ask questions. However, your time has expired. Would you like to answer questions? If so, you will need to request leave for more time.

Yes. I would like to request leave for more time.

Is leave granted?

I appreciate the passion you showed when you talked about protecting privacy rights. However, I didn’t hear you talk about the constitutional right provided under section 3, which guarantees every citizen the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein, which implies equal opportunities and means.

Doesn’t it bother you that the means used to communicate with voters differ from one province to the next, from Quebec to British Columbia or to Alberta? That’s the effect that this will have. It will create an inconsistency in the communication systems used between voters and candidates, leaving us with 14 different approaches.

Senator Carignan, thank you for the question. That does not scare me at all.

The regime for privacy, for instance, in British Columbia, is very reasonable. It has the 10 safeguards that we refer to. I have no hesitation.

I don’t see how if you have 13 or 14 jurisdictions, they are going to be so wildly different that they cannot be complied with. I see uniformity. That is common sense. Most of the other provinces don’t have that kind of legislation, but if they did, I’m sure they would come up with common-sense solutions.

The purpose of any privacy legislation, including provincial legislation, is to ensure that private companies do not collect and use confidential information. Meanwhile, private companies always want to communicate with individuals in order to sell a product or service. The Canada Elections Act provisions related to the disclosure or collection of information are intended to promote individuals’ constitutional right to vote. If I collect information about a person’s ethnicity or language, it’s because I want to send them a document that they can read in their own language and so that I can communicate with them. Do you not see a problem with enforcing a law that is designed to protect citizens in order to sell them private products, rather than another law that is designed to promote and ensure the exercise of a constitutional right?

Thank you for the question. Senator Carignan, here is what I see as the fundamental problem: Federal political parties are using an opportunity to pull the wool over Canadian citizens’ eyes. They have hidden this in a bill; it has been done improperly; and it is based on deceit and manipulation.

I believe that every Canadian citizen would be shocked and appalled if they knew what their government was doing right now to their privacy rights in this bill. The fact is that they don’t know because our fifth estate hasn’t told them. We need to tell Canadians what’s going on.

There’s an easy way to fix this bill. The solutions are very clear. It needs more time and study. We have already started it in the Senate committee, but we could amplify that further. We need more evidence. There is just no doubt about that. Thank you.

Yes.

Thank you. I agree that the Federal Elections Act regulates political parties. The fundamental problem is that there is no effective accountability mechanism according to the Commissioner of Canada Elections, who is the person responsible for doing that. She doesn’t have the tools, and she articulated that before the committee.

As far as I’m concerned, the problem is that the safeguards we used to have in the act are taken away by this bill, because it is a new framework which allows the parties to create their own policies.

What could a Canadian citizen do if the party had a policy and the citizen viewed that the policy was not followed properly? The answer is nothing. They cannot do a thing about it because there is no mechanism for them to deal with that, and there won’t be.

I can understand why the Liberals, the Conservatives and the NDP gathered together for this one and why they made it unanimous. It is like, wow, a get-out-of-jail-free card, a get-out-of-court-free card for 26 years backwards. What do those political parties know that they are not telling us? Why do they need that kind of protection?

The extra time allowed has expired.

Honourable senators, I would like to speak in support of Senator Clement’s amendment to remove Part 4 in its entirety from Bill C-4.

I will begin by noting that I believe that Parts 1 to 3, focused on tax changes and help for first-time homebuyers, are important and do deserve to be passed. However, tacking on an unrelated non-financial measure to a bill that deals with financial measures? It is something that we have raised concerns about time after time, and this time I firmly believe that Part 4 absolutely does not belong in this bill.

As a member of the National Finance Committee, I would like to give a little insight into our clause-by-clause considerations of Bill C-4 two days ago.

Though the bill passed unamended, it was done so on division, specifically on the clauses in Part 4, with senators on the committee believing that, ultimately, even though many did not agree with certain provisions in the bill, it was warranted that the discussion take place in the chamber, with the participation of all of our colleagues.

Although the bill has arrived in this place from committee unamended, I proposed an observation which was added that says:

As repeatedly stressed in previous reports, this committee would like to express its concern about the inclusion of unrelated non-financial matters in bills focused on financial matters such as tax changes and affordability that prevents parliamentarians and Canadians from giving these matters the thorough scrutiny they deserve. . . .

The National Finance Committee’s report also attached the report from the Legal and Constitutional Affairs Committee, where removing Part 4 was one of the proposals. Colleagues, if you have not yet had an opportunity to read the report of the Legal Committee, I encourage you to do so before voting.

It has been asked by our colleagues in this chamber why Part 4 was included in this bill. Last June, during Committee of the Whole, Minister Champagne said:

. . . it is because it was the first opportunity since 2000 to clarify the intent of the House to have exclusive federal jurisdiction over privacy matters with respect to political parties.

At clause by clause on Tuesday, the question was asked again. Senator Moreau said that it was the first legislative vehicle that could be used and contain a measure that essentially had immediate application.

Now, I find this explanation not quite up to par. The first opportunity since 2000? I would put forward the hundreds of pieces of legislation since then. The first vehicle in this Parliament? Yes, perhaps, but the other place has had this bill in front of them for seven months. If it can wait that long, why can’t it wait to be included in a more comprehensive bill on privacy that the government has said is coming in the near future?

At clause by clause, Senator Moreau also said:

. . . according to the mandate of the Minister of Artificial Intelligence and Digital Innovation, the government intends to table privacy legislation in the near future.

So why not remove Part 4 so that affordability measures can pass expeditiously and save Part 4 for this upcoming measure? Just imagine, if Part 4 passes as part of this bill and the new privacy legislation is then introduced without privacy provisions relating to the Canada Elections Act, as they are supposedly dealt with here, what then?

Arguments have also been raised saying that this chamber should not be making changes about elections that were proposed in the elected chamber. However, though Part 4 might amend the Canada Elections Act, Part 4 is ultimately about privacy protection. In my opinion, Part 4 is ineffective privacy protection masquerading as election changes so that the Senate would not touch them.

When PIPEDA, the Personal Information Protection and Electronic Documents Act, came into effect in 2000, I was working in the Chamber of Commerce movement as an advocate for business. Businesses and organizations came on board and figured out ways to adhere to these policies, and I think they have done a good job. How can we expect businesses, not-for-profits and all other organizations — some with limited resources compared to political parties — to follow those 10 basic rules of PIPEDA and not expect political parties to be able to follow them as well?

I understand the intent of Part 4 is to bring it under federal jurisdiction; this has been said by the minister.

Now, to be clear, I am in agreement with Minister LeBlanc’s comments in this chamber on Tuesday in ministerial Question Period that it is not in the national interest of the country to have a patchwork quilt of provincial privacy commissioners or interpretations on something as fundamental as protecting the private data of Canadian electors. But I do disagree with his statement that this legislation accomplishes that. Even with this legislation, there wouldn’t be a uniform national standard. There is no national uniform regime, as federal political parties each have different policies.

Similarly, the Legal Committee agreed with witnesses that the privacy obligations of federal political parties should be set out in a uniform national regime. However, the majority of committee members are concerned that Part 4 falls far short of the minimum standards required to protect the individual and national interests of Canadians at a time when global experience indicates these interests are increasingly at risk.

As Senator Tannas put it on Tuesday at National Finance:

Everyone except federal political parties will have to follow a privacy law, but the law for federal political parties is an empty box that says that every party must have a privacy policy. That’s the law. There is no oversight. There is no standard on what the privacy items need to be.

Many will point to the policies currently on political party websites, but there are no substantial minimum requirements when it comes to the handling of that information. This was demonstrated as recently as Tuesday when a candidate to become premier used Canadian electors’ data from a federal political party.

Additionally, as Senator Tannas pointed out:

There is the right of correction, but there isn’t the right of obtaining the information on which you can correct. You have to guess what they know about you and tell them that they might be wrong. How silly is this?

As was mentioned yesterday, when the changes in Part 4 were put forward for the first time in Bill C-47, our colleague Senator Batters pointed out that neither the Chief Electoral Officer nor the Privacy Commissioner were consulted. This time around, the two parliamentary officers who are responsible in this area — the Commissioner of Canada Elections and the Chief Electoral Officer — were consulted by the Legal Committee and they outlined their concerns with this bill.

Caroline Simard, Commissioner of Canada Elections, stated:

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.

At the end of the day, Part 4 is out of line with PIPEDA, the General Data Protection Regulation and even the consumer privacy protection act. Going back to Minister Champagne, appearing before Committee of the Whole last June, he said:

. . . under the Canada Elections Act, I think it is a framework that is well recognized around the world as one of the best frameworks for democracy . . . .

When it was given study for the first time in the Standing Senate Committee on Legal and Constitutional Affairs, Elizabeth Denham, former Information Commissioner for the U.K. and former Information and Privacy Commissioner for B.C., speaking as an individual, said:

In the U.K. and the EU, there are comprehensive data protection laws that extend across that whole political ecosystem, including political parties, and the last time we checked, democracy was alive and well.

Now, outside of Europe, New Zealand, South Korea, South Africa, Brazil and many other nations include political parties in their data protection and privacy laws. There is no exemption there for political parties.

Canada is an outlier when it comes to extending independent oversight for political parties’ use of personal data and breach notification and reports to an independent authority.

I believe Part 4 rightfully belongs in the promised upcoming privacy bill, where it can be properly studied within the context of privacy legislation in order to ensure the protection of private data of Canadian electors.

I believe Canadians expect parliamentarians and political parties to be held to a higher standard — at the very least, the same standard as others. I believe Canadians certainly do not want political parties held to less stringent or lower standards.

Colleagues, I thank you for your attention, and I would encourage you to also vote in support of Senator Clement’s amendment to remove Part 4.

Thank you, wela’lin.