Appearance before the Standing Senate Committee on National Finance (NFFN) on Bill C-520 (Supporting Non-Partisan Offices of Agents of Parliament Act)

January 28, 2015
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Good evening Mr. Chair and Honourable Senators. 

Thank you for the invitation to appear before you on the privacy issues related to Bill C-520, the Supporting Non-partisan Offices of Agents of Parliament Act.

As an Agent of Parliament, I am fully committed to principles of impartiality, independence and political neutrality.

I would refer the Honourable Senators to the joint letter from Agents of Parliament to this Committee outlining concerns with aspects of the Bill and support for the principles of non-partisanship and transparency, to which I agree. 

Rather than repeat the substance of that submission, my comments this evening will focus specifically on the privacy issues that arise from the Bill.

These are:

• the online publication of an individual’s past political association, which has been judicially recognized as constituting sensitive personal information;
• the indiscriminate application of the mandatory disclosure requirements of the political past of all employees, regardless of their position of influence, and;
• And the extensive reporting period mandated under the regime for new applicants and particularly for existing employees.

When reviewing the privacy implications of proposed government activity, OPC considers the necessity, effectiveness and proportionality of any proposed measure – and whether a less privacy-invasive approach exists.

Regarding necessity, the new rules seem generally duplicative given extensive measures already in place to ensure political neutrality. 

That suite of laws, codes and policies includes the Public Service Employment Act and the Public Service Commission’s role in monitoring and investigating impartiality, the Value and Ethics Code for the Public Service, as well as internal policies on conflict of interest.

On the question of overall effectiveness, here I would ask what specific goal is advanced by the new regime. 

Or put another way, for what specific problem is this legislation a remedy?  It is difficult to assess effectiveness without clarity on these points.

In addition, there are certain technical flaws in the proposal, namely the absence of clear definitions of key provisions that could undermine not only the goal of this bill but also that of the existing regime.

For example, neither “partisan activities” nor “non-partisan manner” are defined, in contrast to the definition of “political activity” found currently in the Public Service Employment Act. 

Given the potential interaction between Bill C-520 and aspects of the Public Service Employment Act, the Bill could alter the effectiveness of the current system, muddying the waters from a legal and administrative perspective.

That leads to another aspect of the Bill, namely, its proportionality.

The public disclosure requirement for employees seems over-broad, given its universal application to all staff, no matter what their relative level, position or specific influence on decision-making as individuals. 

For example, should it apply to mailroom staff in the same way it applies to senior management?

In addition, without clarity regarding terms like “partisan activity”, applicants for positions within the offices of agents of Parliament may feel they are under an obligation to report activities that are not meant to be covered and that may be Charter protected.

For instance, could “partisan activity” be interpreted as applying to more than just paid employees of political parties, such as volunteers?  

Could applicants feel the need to declare mere past membership in a political party?

This ambiguity in the law could have the unintended consequence of deterring political participation.

Lastly, I would note that the extended reporting period applies unevenly to existing employees through the transitional provisions set out in clause 8 of the Bill. 

By this I mean some existing employees may have to disclose partisan activity which took place 20 or 30 years ago, when they were originally hired into the federal public service.

This would be in contrast to a new applicant who would be subject to a public disclosure period of only ten years preceding his or her application.

Thank you once again for the opportunity to present views on this important issue and I would welcome any questions.