Bill C-350, An Act to amend the Corrections and Conditional Release Act (Accountability of Offenders)

Submission to the Senate Committee on Legal and Constitutional Affairs

June 5, 2013

The Honourable Bob Runciman
Chair
Senate Committee on Legal and Constitutional Affairs 
The Senate of Canada
Ottawa, Ontario
K1A 0A4

Dear Honourable Senator:

I wish to thank you and your Committee for the opportunity to submit this written statement concerning Bill C-350, An Act to amend the Corrections and Conditional Release Act (Accountability of Offenders).

As you know, Bill C-350 would amend the Corrections and Conditional Release Act by setting out a regime whereby any amounts owed by an offender as a result of:

• an order for maintenance, alimony or family financial support made by a court of competent jurisdiction;
• a restitution order made under section 738 or 739 of the Criminal Code;
• any victim surcharge imposed under section 737 of the Criminal Code; and
• a judgment awarded by a court of competent jurisdiction

would be deducted from any amount owed to the offender as a result of a monetary award by a final decision of a court or tribunal pursuant to a legal action or proceeding against Her Majesty in right of Canada or an agent or employee of Her Majesty for any act or omission in the performance of his or her duty.

In order to receive a right to receive a payment, a creditor would have to give written notice of the debt owed to him or her by the offender to Correctional Services.

This regime would be implemented by having affected departments and agencies and the Service disclose to each other any information that is necessary to establish that a given person is indeed an offender. Further details regarding the administration and operation of the proposed regime, including the disclosure of personal information, will be set out in regulations at a later date.

The Privacy Act

In terms of our Office’s mandate, the Privacy Act applies to federal public sector organizations. For instance, as a general rule, personal information under the control of a government institution cannot be disclosed without the consent of the individual to whom it relates. However, the Privacy Act does exceptionally allow for disclosure of personal information without consent where authorized to do so by another Act of Parliament. In other words, if Bill C-350 were to pass, Correctional Services and other affected departments and agencies would have the legislative authority to disclose to each other any information necessary to establish that a given person is an offender.

Privacy Implications

My Office appreciates the rationale of the proposed Bill, namely that – as a matter of accountability and general public good – offenders should first repay any amounts they owe as a result of a court order, before being able to receive any amounts owed to them as a result of a court decision against the Federal Crown. However, I would like to bring to your attention some of the privacy concerns raised by the Bill as currently drafted.

Scope of Disclosure

The proposed section 78.2 indicates that in order to establish that a person to whom the federal crown owes money is an offender, Correctional Services and affected departments and agencies may disclose any information necessary to establish that person’s identity (emphasis added).

This requirement appears somewhat overbroad: departments and agencies that would be required to share personal information are not defined and the nature and extent of personal information that would need to be disclosed is not specified. Also, there is a lack of clarity with respect to the disclosure mechanisms.

The lack of a clearly circumscribed scope of disclosure opens the door for over-disclosure and over-collection. I would advise that the application of this provision should be limited to specific institutions and that data elements that are to be disclosed be identified and limited to the extent possible.

Written Notice of Creditor

The Bill requires a creditor to give written notice to Correctional Services of the debt owed to him or her. This potentially means that Correctional Services would become a repository of all outstanding claims information.

My Office has a long-standing position that the creation of any kind of registry should be assessed with great caution as it opens the way for the state to access large databases about many individuals. Strict authentication measures of individuals designated by written notices would be necessary to ensure there would be no instances of misidentification. Again, without clear parameters, there is a real risk for over disclosure and over collection of information that may not be related to offenders.

In this respect, I would like to draw attention to the fact that, while information related to court decisions made under the Criminal Code may be easily linked back to an offender, this is not necessarily the case for decisions made by a civil court and stemming from non-criminal matters such as alimony or damages. In order to validate creditors’ notices, Correctional Services may have to put in place substantially more complex information sharing agreements involving provincial levels of government.

Moreover, setting up and operating a registry in a privacy-respectful manner often proves to be a complex endeavour. For instance:

• Personal information should be accurate, complete and up-to-date;
• Personal information should be physically and electronically secured from breach or unauthorized access. Only authorized personnel, with appropriate security clearances, should be able to access data;
• Clear retention and disposal schedules and procedures should be put in place; and,
• All entries should leave an audit trail. Information collection, use, retention, disclosure and disposal should be easy to audit, whether internally or by an independent party.

Regulations

As with other recent Bills, I am concerned that most normative rules and implementation parameters are left to regulations. The questions I raised above – such as identifying institutions affected by the proposed regime, and limiting the collection and disclosure of data elements – are not prescribed in legislation.

I would suggest that Parliament should be able to review these substantive matters now, at the legislative review stage.

I hope you have found these reflections useful and I thank you once again for providing me an opportunity to share my thoughts on Bill C-350.

Sincerely,

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