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Appearance before the Standing Committee on Justice and Human Rights (JUST) on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts

September 19, 2017
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)


Thank you for the invitation to appear before you today on Bill C-46, Appearance before the Standing Committee on Justice and Human Rights (JUST) on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.

I am accompanied today by Patricia Kosseim, my Senior General Counsel.

As you may be aware, we appeared before the Public Safety and National Security Committee (SECU) on a similar Private Member’s bill (C-226) a year ago. 

As noted on that occasion, I would stress from the outset our Office fully grasps the severity, societal impact and clear dangers of impaired driving.  

For governments and law enforcement, combatting impaired driving is clearly a compelling state objective — given the tragic impact on Canadians each year.

Prior concerns

As noted in our testimony before SECU last September on the other bill, we acknowledged the pressing nature of the state objective but also posed three questions related to the  necessity and proportionality of the new provisions.

Those questions included consideration of how invasive this new power could be, how necessary it is to move away from the suspicion standard, and whether there is any concrete evidence as to how effective the proposed changes might be?

In the interim, since our last testimony and the introduction of this Bill,  the government published a Charter Statement and a Legislative Backgrounder, which attempt to answer these questions. 

While we might disagree on some particulars, for instance on the reasonable expectation of privacy of individuals who would be subjected to new mandatory roadside testing, on the whole we find these answers satisfactory.

For instance, these materials referenced above provide information on  the limitations of the current system in Canada and how  numerous other models internationally  have been effective in reducing deaths due to impaired driving.

Disclosure of test results

All that said, however, there are some other substantive privacy issues we would like to raise, including the broadening of purposes for which test results and analyses of bodily samples can be shared and how this sensitive data would be handled.

Clause 15 (new Subsection 320.36(2)) permits the sharing of the results of any evaluation, physical coordination test or analysis of a bodily substance for the purpose of the administration or enforcement of a federal or provincial Act.

Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act or Railway Safety Act offences, or administration or enforcement of provincial law. 

As a consequence, the Bill would widen the potential uses and purposes for which such results may be put by authorities. 

While road safety is clearly a compelling state objective, we  do not see how the numerous other administrative objectives  would justify sharing of test results.

As part of your study, we recommend that the Committee examine which specific laws are contemplated and consider restricting sharing to enforcement of statutes with sufficiently compelling state objectives that justify sharing sensitive information originally obtained without grounds. Alternatively, you could limit the sharing of information set out in Subsection 320.36(2) to only federal and/or provincial laws that relate to transportation safety.

Retention of records

We would also ask the question whether testing results are retained on individuals who are not found to be in violation of the regulatory limits.

Unrestricted retention of negative test results or false positives would represent a  privacy risk if clear ground rules around their required destruction are not set in advance.


Thank you for inviting me to provide this committee with comment — and I look forward to your questions.

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