Appearance before the Senate Committee on Transportation and Communications on Bill C-49

January 31, 2018
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Introduction

Thank you Chair and members of the Committee for the opportunity to appear before you today to offer my views on Bill C-49, and specifically the privacy considerations related to the proposed requirements mandating the installation of locomotive voice and video recorders, or ‘LVVRs’, in trains.

Purpose and Use

Importantly, the bill not only mandates the installation of LVVRs, but it also sets out specific uses for which companies may use the data that are collected.  The proposed amendments will allow for both proactive safety management as well as for post-accident/incident investigation. They also seek to address employee privacy rights and workplace surveillance questions.

The collection and use of LVVR data for railway safety purposes are reasonable. They are clearly so when the data is intended for investigating and determining the cause of a railway accident or safety incident.  They are also reasonable when the data is to be used proactively to identify safety concerns, provided appropriate controls are in place to prevent use for inconsistent purposes.  We will watch closely as regulations are made to prescribe how analysis of recordings on a random basis is to occur.

The bill includes provisions that seek to ensure an appropriate balance between safety and privacy. For instance, paragraph 17.91(1)(a) sets out with some clarity the safety purposes for which information may be analyzed proactively. The bill also confirms that on-board recordings remain privileged and therefore cannot be used in the context of disciplinary proceedings.

That said, I have two concerns to raise with you.

Exception to PIPEDA

In what is almost without precedent, certainly exceptionally, Bill C-49 would create a carve out from several obligations found in Canada's federal private sector privacy law,  the Personal Information Protection and Electronic Documents Act (PIPEDA).  I am referring here to subsection 17.91(4) of the Railway Safety Act, which if enacted would provide that  companies would no longer have to comply with PIPEDA's obligations under section 7 of that Act or in relation to the collection, use, disclosure and retention of personal information.

It appears the drafters wanted to create a complete code for the obligations in question in the Railway Safety Act. My concern lies less with the obligations imposed in that Act, but with difficulties in the interpretation to be given to the interplay between that Act and PIPEDA, and particularly the lack of clarity on the continued role of my Office in investigating alleged contraventions, or the application of access rights under both federal privacy laws.

To address this, I would recommend the following amendments to the bill:

• First, Bill C-49's exception to PIPEDA should not include the retention principle. That principle simply provides that information should not be retained longer than necessary. It is relevant in context. The regulation-making authority in paragraph 17.95(1)(d) of the Railway Safety Act could be used to add details, but it is not a valid substitute.
• Second, the bill should confirm the jurisdiction of my Office to investigate complaints relating to alleged violations of PIPEDA principles, including whether the exceptions found in the Railway Safety Act were properly applied.
• Third, concerning the privilege surrounding LVVRs, the bill should also amend section 28 of the Canadian Transportation Accident Investigation and Safety Board Act to  confirm the right of individuals to access their own personal information and  the OPC’s authority to access and use it if such persons submit a complaint to our office under either the Privacy Act or PIPEDA.
• Fourth, I would recommend that in the future, exceptions to PIPEDA principles be defined in PIPEDA or at least be referred to therein. Otherwise, if the drafting method in this bill became the norm, transparency would be adversely affected in that we would need to refer to statutes other than PIPEDA to determine whether PIPEDA would apply, and if so, to what extent.

Authority to make Regulations

Another observation concerns the language of paragraph 17.95(1)(d), which allows the  making of regulations relating to, among other things, the collection, preservation, use and communication of information from the recordings.

The government has indicated that the intent of this provision is to add data protection measures, such as encryption.  However, my concern is that the language of this paragraph is not so limited and could expand the statutory purposes for collection, use, or disclosure of LVVR data.  Even if this is not the intent, the language of this paragraph appears to allow for this possibility.

I would therefore recommend that paragraph 17.95(1)(d) be amended to align more closely to the intent and use more specific language to make it clear that regulations on the collection, use and disclosure of information would add protection measures and would not expand the list of permissible purposes for these activities.

Conclusion

Government officials affirm that they are committed to respecting the privacy rights of employees while achieving the important safety objectives of LVVR systems.  The bill is largely consistent with this intent but, in two respects, appears to allow deviations. The amendments I am suggesting would provide greater certainty that privacy principles will be upheld.

Thank you for inviting me to provide this Committee with comment – I look forward to your questions.