Appearance before the Senate Standing Committee on Legal and Constitutional Affairs on Bill C-10 – The Safe Streets and Communities Act

February 9, 2012
Ottawa, Ontario

Opening Statement by Jennifer Stoddart
Privacy Commissioner of Canada

(Check against delivery)

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Introduction

Good morning Mister Chair. I thank you, and the members of the Committee for inviting me to present my views on Bill C-10.

I support the government in declaring the protection of society to be one of the primary goals of this legislation and I acknowledge the valid objectives of the proposed amendments. If you have invited me to appear before you, it is because you are concerned there may be privacy implications flowing from this Bill. I would like to draw your attention to some specific points that could have an impact on the privacy rights of many Canadians.

Specifically, I want to focus on proposed amendments to the Criminal Code, the Corrections and Conditional Release Act and the Youth Criminal Justice Act.

Criminal Code amendments

First of all, we welcome measures proposed by clauses 28 and 29 of Bill C-10. These extend exceptions to the open court principle to new offences committed against children. Clause 29 allows a judge to order a publication ban in these cases. I am also pleased to note that, under clause 28, if a judge decides not to exclude members of the public from the proceedings, he or she will have to motivate their decision.

As a society, we need people not to be hesitant to report crimes and testify so as to preserve the rule of law and ensure that crimes are punished as warranted. However, we know that the fear of public exposure can lead to a chill factor that may persuade victims not to report and witnesses to remain silent.

Therefore, allowing for publication bans and requiring motives for refusing public exclusions – in what can be very difficult circumstances – are positive developments in terms of greater privacy protection for victims, their families and witnesses.

As the Right Honourable Beverley McLachlin, Chief Justice of Canada, reminded us in a recent speech at Carleton University “(p)ublication bans play an essential role in trials of young offenders, sexual offences and some family matters.”

Corrections and Conditional Release Act amendments

Let me now turn to observations about planned amendments to the Corrections and Conditional Release Act. Clause 57 of the Bill would expand the type of information that could be provided to victims of crime.

Under the Bill’s proposals, victims could gain access to potentially sensitive personal information not directly related to the victim, to the offence committed, or to the possibilities of rehabilitation and return to society. Some of the new proposed disclosures include information regarding personal reasons for a planned temporary release and participation in certain programs.

Therefore it is with satisfaction I note that such information is only to be shared where the interests of the victim clearly outweigh any invasion of the offender’s privacy.

Further proposed amendments in clause 64 would allow Correctional Services Canada (CSC) officers to demand that an offender wear an electronic monitoring device. This would enable CSC to track compliance with conditions established in temporary access, work release, parole, statutory release or long-term supervision restricting access to certain people or places.

This may be considered as a technological innovation to quickly detect any violations of certain types of release conditions and to compel offenders to abide by the terms of their release.

However my Office received in 2009 a Privacy Impact Assessment (PIA) of the electronic monitoring pilot program, which was operated on a voluntary, consent basis. The PIA demonstrated that electronic monitoring is a more generalized and ubiquitous form of surveillance, which can provide highly sensitive personal information that may not be related to enforcing parole conditions.

The pilot program was also inconclusive in demonstrating that electronic monitoring would be more effective than traditional probation measures. I would therefore suggest that it would be preferable to allow this program to continue to operate on a voluntary, consent basis under close supervision, until evidence of its effectiveness is clearly established.

Should this provision be adopted as is and the electronic monitoring program be rolled out nationally, I would expect to receive a new PIA before implementation, as per CSC’s express undertaking to my office.

Youth Criminal Justice Act amendments

I would now like to share some thoughts on some of the proposed amendments to the Youth Criminal Justice Act.

Let me start with clause 185 of the Bill. This clause would broaden the circumstances, lower the age, and increase the frequency by which the names of some young offenders may be publicized.

It should be noted that in today’s Internet and social media age, mere mention of being accused, let alone convicted of a crime, will follow people around, potentially as long as they live.

From a privacy perspective, it means that if clause 185 were to pass as is, Canadians as young as 12 could be identified, and potentially stigmatized for life by the public.

On a related note, clause 190 would require police to maintain records of all extrajudicial measures, such as community service, apologies to victims and other forms of redress.

Today, police officers are encouraged to exercise discretion on whether to keep records of such extrajudicial measures. A requirement to keep records of extrajudicial measures would have the potential to significantly increase the amount of personal information collected, retained, and shared by police about youth who are not formally charged.

For our last Annual Report to Parliament, we completed a major review of the RCMP’s CPIC and PROS databases. There have been instances where results of criminal record checks were informally shared with outside people, directly circumventing RCMP policy. We also found that data was being kept longer than required.

Clearly, there are potential consequences for individuals listed in police record systems. These systems can affect individuals in terms of future travel, school, and work prospects.

I would encourage a careful reflection upon the long term impact of these provisions on the ability of troubled youth to overcome their past and succeed in the future. Is making their names known and keeping detailed records of extrajudicial forms of redress truly necessary, effective and proportional to the otherwise commendable objective of keeping communities safe?

Conclusion

I would urge Parliamentarians to consider Bill C-10 carefully in light of the potential privacy implications I just mentioned.

Finally, should Parliament decide to adopt legislation that would call for new record or tracking mechanisms to better protect society, it would be paramount to also set out robust controls and limits that would narrow the collection, use, disclosure and retention of personal information to only that which is appropriate and necessary in the circumstances.

I would like to thank you for your attention to this critical issue and I welcome your questions.