Consideration in Committee of the Whole

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February 18, 1999
Ottawa, Ontario

Bruce Phillips
Privacy Commissioner of Canada
(Check Against Delivery)

Annual Report - Consideration in Committee of the Whole

Privacy Commissioner

The Senate in Committee of the Whole on the Report of the Privacy Commissioner for the period ended March 31, 1998, tabled in the Senate on September 29, 1998.

The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Fernand Robichaud in the Chair.

[English] Senator Carstairs: Honourable senators, I move, seconded by the Honourable Senator Kinsella, that Mr. Bruce Phillips, Privacy Commissioner, be escorted to a seat in the chamber.

Senator Kinsella: Honourable senators, while Mr. Phillips is being escorted to the witness table, I believe there is agreement that honourable senators who are sitting in seats at an extreme distance from the witness table may take vacant seats that are closer to the witness, and that the rules be waived in regard to where one must be seated whilst asking a question in Committee of the Whole.

[Translation] The Chairman: Is there unanimous consent for the suggestion made by Senator Carstairs that senators be allowed to speak from a seat other than their own during these deliberations?

Hon. Senators: Agreed.

Pursuant to order adopted October 29, 1998, Mr. Bruce Phillips was escorted to a seat in the Senate chamber.

The Chairman: I welcome Mr. Phillips, Privacy Commissioner, and Mr. Julien Delisle, who is with him.

[English] (1540)

Mr. Bruce Phillips, Privacy Commissioner of Canada: My address will be as brief as I can possibly make it. I must start by saying that this is quite a thrill. It is an extraordinary occasion for us. This is the first time I have been called to appear before a Committee of the Whole of either house.

In my early days as a press gallery reporter here, about 40 years ago, appearances of witnesses before committees of the whole house were quite commonplace. It is now somewhat out of fashion, which is too bad. Whatever the intention, the result has been reduced public visibility of the legislative process and of the workings of government. When all or most of the departments and agencies were before committees of the whole, for better or for worse, it was always under the eye of the fourth estate. Even if it was only one lonely wire service reporter - although there were usually quite a few of us - since we had to sit there, we daily wrote thousands of words and scores of stories about it. Now that it is spread across many committees, I think much of the work goes unseen and unreported. Quite frankly, I think this contributes to the disconnection between Parliament and the public.

Senator Prud'homme: Bring him into the Senate!

Mr. Phillips: I will confess to having fantasized about that possibility once or twice. But for a stroke of fate or two, who knows, I might have made it here on my own!

If today's session represents the beginning of a revival of the process of Committee of the Whole, forgive me for attaching some special distinction to my appearance. I hope this does become true - at least for that small band of people who are known as officers of Parliament. That is, the half dozen or so of us whose appointment alone in the entire federal establishment requires a vote of approval by both Houses of Parliament and who answer to no ministry whatsoever but only to Parliament and who make our reports directly to the Speakers of both Houses.

Parliament has decided that some issues, values and interests are of such basic importance in Canadian life that they need a champion who stands at arm's length from the government and from the political debates of the day. Thus we have, among others, the Auditor General, the Chief Electoral Officer, the Commissioner of Official Languages, the Information Commissioner and, in my case, the Privacy Commissioner. All of us, in our special areas, share a common charge of working to preserve fairness, decency and honesty in public administration in particular and, to the extent possible, in Canadian life generally.

No one could ask for more in this life - and, believe me when I say this - than the opportunity to represent values of that kind.

Please allow me, while I am on this subject, to record my thanks to the Senate for signifying its confidence in my fitness to continue in this office by having approved an extension of my term a while ago. In the time remaining to me, I hope to promote closer ties and greater interest by Parliament in the work of my office and similar offices. Also, I want to express some particular personal pleasure in my appearance here today. Many of you on both sides of this house are personal friends and acquaintances and former colleagues of mine. It is good to see you again.

Having said all that, I wish to express my gratitude at having the great good fortune, for the past eight years, to serve Parliament in an office that has been incredibly fulfilling, challenging and exciting. As most of you know, my term expires in about 15 months. This, therefore, might be my one and only shot at a meeting of this kind. On that account, I should like to take a minute or two to talk about the concept of privacy in the broad sense.

You often hear the phrase these days that "privacy is the issue of the nineties." I think there is some truth in that statement. In any given week, you only have to look at the daily papers or turn on the television to see how frequentlythe subject of privacy is raised as an issue of contemporary importance. I think it must also have been an issue of the 1890s, the 1790s and the 1690s - in fact, just about as far back as you can go into the mists of human history. "Privacy" is merely a convenient but altogether inadequate word that we use to encompass a set of values and considerations which touch almost every aspect of our lives, which have evolved over centuries of human experience and which, in every age, have set the terms and conditions of social interaction both between and among individuals and individuals and institutions.

Mr. Justice La Forest, who recently retired from the Supreme Court, described "privacy" as the value "that is at the heart of liberty in the modern state." That is a wise observation indeed. If you would assess the degree of freedom that exists in any particular society, look first to the degree of private life that its citizens can command and you find a striking correlation. I have only to mention some of the oppressive totalitarian regimes, many of which are still around and we have seen just in this century.

"Privacy," in short, is just another word for "freedom." Without it, we do not have any personal autonomy, no liberty and darn little dignity. The degree to which we honour and defend the right to a private life is precisely the way we measure the respect that we give to each other as individual and distinct human beings. It follows that if we chip away at this edifice, we do it at our peril. Enough chipping away and it all falls down. It is the chipping process that I should like to talk about today.

Freedom does not always or even very often disappear in some cataclysmic eruption. It slips away quietly, bit by bit - usually the victim of many plausible and seductive propositions which society accepts out of either indifference or ignorance. In my view, it is this process which stands, in our time, as the greatest danger to the priceless right to a private life that we now enjoy.

There are privacy problems cropping up in all kinds of places these days. In surveillance technology we are now under the eye of someone's camera almost every waking hour, and in biological sciences such as drug testing, DNA testing, and so on we are also experiencing privacy problems. We could profitably discuss all of these things one at a time and at length. In fact, before some of your committees we have discussed some of these matters already.

My remarks today should be considered mainly in the context of the problem that arises from the application of computer and communications technology to the massive amounts of personal information that is being gathered in by both the corporate and governmental worlds. The problem here is to ensure that the management of all this information complies with fair practices of the kind that are embodied in the federal Privacy Act. This is not rocket science. It is simply to ensure that people know the information about them is being collected, and why; that it will not be used for purposes other than the reason it was collected, without their consent; that it will be kept secure; and that people have a right of access to it and to correct it. That is the whole story about privacy in the information world. Often it is honoured not in the observance but in the breach.

Based on my experience as a commissioner working with government departments, I do not think there are a great many people who deliberately or maliciously strive to erode people's privacy rights. It is more of an insidious process and it often happens quite unknowingly.

Earlier, I mentioned indifference and ignorance, and I used those terms advisedly. More than once it has been my experience that administrators have embarked upon actions which, in the upshot, they have been surprised to be told have offended good privacy practice. I can certainly supply examples. Most of this activity is certainly benign in its objective but carries with it a cost which, upon more careful examination, sometimes proves to be unacceptable. Usually, if my office finds out about it, I can fix it, but not always.

This aspect of the privacy problem has been exacerbated by the onrush of technology and its impact on the collection, use and disclosure of personal information. Every enterprise, public and private, depends upon personal information as one of its vital raw resources. This information, collected from all of us, is usually given up freely because we recognize the beneficial uses to which it will be put, but we do so on the assumption that it will not be used for unrelated purposes or disclosed to other persons without our consent.

If you go to a doctor, you reveal your symptoms. If you go to the bank for a loan, you must disclose your financial situation. If you go to an employer, you must cite your qualifications. The world would crash to a halt without such routine exchanges, but there is an element of trust involved in all of these transactions, and modern technology, unless properly hedged about with effective and legally enforceable restraints, can and sometimes does make a shambles of any notion of trust.

What, then, is the state of the law, which I think is of particular interest and relevance here? In a phrase, it is creaky and it is leaky. The federal Privacy Act, for a start, is badly in need of an update. Too much is excluded from its purview. The federal government, for example, engages in massive informational exchanges with other governments and private-sector entities. An essential precondition of all of those exchanges should be a requirement of compliance with the established privacy norms, but most of those exchanges occur unseen, without scrutiny, and certainly without the knowledge of the people who, in most cases, were the originators of the information.

There are other offensive exemptions as well. Federal investigative bodies, for example, are allowed to deny people access to their personal information, for any information that is gathered in "the enforcement of any law of Canada or a province." No such all-embracing exemption should ever be allowed unless an injury to enforcement can be demonstrated.

The very definition of personal information needs updating to take account of scientific advance, as, for example, with blood and tissue samples. Neither does the act provide an adequate system controlling what I think is the most dangerous potential misuse of government information holdings, which is in the areas of data matching, data linkages and data mining. These problems must be addressed if our national government is to stay abreast of technological change and fulfil its commitment to protect the privacy of Canadians.

In the private sector, at the moment, it is just a question of sauve qui peut. With the single exception of Quebec, where the commercial world is covered, it is an informational jungle out there, and survival of the fittest applies. Generally speaking, we have no right to know what information business holds about us, how they got it, how they use it, whether it is accurate, and how they will keep it. Some corporations increasingly regard client data as a resource which they can own and mine, use or dispose of as they wish. The more widely information is shared, the more likely it will be used to decide what services you will be offered, what benefits you may receive, even what jobs you might qualify for, all without your permission or consent or knowledge.

Equally dangerous is that these decisions may be based on faulty information, and we do not even have the legal right to correct that. One graphic example of that particular problem was revealed in a U.S. congressional study a few years ago which said that credit reports, for example - and we are all in someone's credit report somewhere - contain an average error rate of about 20 per cent. Errors of that kind can have real-life consequences in terms of the denial of credit, and denial, possibly, of employment opportunities and so forth.

I am very glad to report that, assuming the House of Commons passes it, you will soon have a bill before you which will go a considerable distance toward providing a remedy to the absence of legal privacy rights in the commercial sector. That bill, Bill C-54, will provide for the extension of federal privacy law, in the first instance, to the federally-regulated privacy sector, that is banks, communications, telecommunications, transportation, and so on - all massive holders and gatherers of information. The bill will also extend the law to the balance of the business world in the provinces, if they do not, in their own legislatures, provide equivalent protection within a three-year period.

This bill also provides an oversight mechanism involving my office. The bill is not perfect - few are - but I presume it will be improved in the legislative process. It is a long step forward and I support it. I presume I will be given the opportunity to come before members of this chamber when you are considering that bill.

It is a regrettable fact that a specific right of privacy was excluded from the Charter of Rights and Freedoms. That right is enshrined in the Universal Declaration on Human Rights, the European Covenant on Human Rights, and similar documents and covenants, and I believe it is even in the Quebec Charter of Rights. It was included in the original drafts of the Canadian Charter when they were first circulated to the provinces for discussion, and unhappily it got lost in all the horse-trading that went on from the Charter's conception on its journey through Parliament. The Supreme Court is slowly buttressing privacy through jurisprudence, but they have a long way to go.

At a minimum, inclusion of a specific privacy right would have meant much more rigorous examination of draft legislation for privacy implications, and it would have given my act, the federal Privacy Act, a more solid underpinning. As it is, the act enjoys no certain paramountcy, and its heart, the Code of Fair Information Practices, which I rattled off to you earlier, is subject to any other act of Parliament and can be easily circumvented by other departments.

Frankly, I think that anything as basic as privacy rights deserves a little better than that. We need Parliament to be especially vigilant on this issue, and I implore you to be especially tough and critical when you are asked to judge the merits of propositions in which the fate of privacy is put in the balance.

You have often heard from departmental officials, and you will hear it often in the future, that their objective is "to strike the right balance" between their wonderful program and that irritating obstacle known as privacy. This is a very depressing litany to me - I hear it almost every day - when I know that what they really mean, at least in the way that it translates to me, is, "Let us just get rid of privacy so we can get on with the business." Many more so-called balancing acts like that and there will be nothing left to balance; it will all have been chipped away.

The question that must be asked when it comes to data linkages and data mining and usage of that nature by government departments is the following: Can you make this program without the further abridgement of civil and human rights? If the answer is no, they should be sent back to the drawing board. I believe that, in the great majority of cases, the answer can be yes, if sufficient ingenuity and plain hard work are put into it, but in drafting programs, one of our troubles is that bureaucrats, and businesses too, reach too quickly for the cheap and easy solution, which is just to throw in some technology that will mix up the data and give them an answer. Any proposition that involves the trade-off of privacy rights for administrative convenience or efficiency should, in my view, face the very toughest of uphill battles before the legislatures of the land.

On the subject of parliamentary vigilance, there is one issue in particular that I wish to raise, and I will then conclude. No doubt you have heard about the proposal to create a medical information highway. This has been recommended by a special advisory council appointed by the government, and the Minister of Health has indicated his intention to proceed. What is involved here is a national health data network which will link existing and planned provincial and local networks. Putting health care information into electronic systems and then linking those systems has serious privacy implications. We all want a more efficient and effective health system but, given the fact that the raw material is the highly sensitive, personal information, medical information, of millions of Canadians, great care must be taken to ensure that no abuse is possible. What is at stake here is all that people have come to expect from the doctor-patient relationship.

(1600)

The advisory council has laid great stress in its reports on the privacy dimensions that are involved, but it remains to be seen how well good intentions are translated into good deeds. I urge you, I plead with you, on that account to give this, when you get the opportunity, the most careful study. Of course, I will be anxious to contribute the help of my office.

Honourable senators, that is a very quick skim over a small part of the privacy landscape, but it is enough, I hope, to demonstrate that there is much here for legislators to ponder. When you do so, you will be animated by a resolve to ensure that efficient government is not achieved by the abridgement of precious and hard-won rights. People have a right to control their own lives, and that means the right to control their information. They are only seeking after what Mr. Justice La Forest called the heart of freedom.

We are now ready to field your questions.

The Chairman: Mr. Phillips, I remind you that you have access to translation services through your ear piece.

Senator Milne: Mr. Phillips, under your mandate, for how long after a person has died is information about the individual held by a government department or agency protected? Does a person's right to privacy change at some time after he or she has died?

Mr. Phillips: Senator, the retention schedules for keeping information are established by the public Archives of Canada. They vary a great deal depending upon the kind of information involved. A few time limits are set in the Privacy Act for certain kinds of law enforcement information, for example. There are some kinds of information that the government is allowed to exempt from disclosure for periods of 20 years.

I cannot give you a simple answer. In some cases, the retention periods are one or two years, and in other cases it is longer.

In the case of the census, to which I think you may be referring, there is an absolute prohibition on census data gathered beyond a certain date - I think it is 1901 or 1911 - that will keep it from disclosure in perpetuity.

Senator Milne: Even though the federal Privacy Act states in section 3 that information about an individual who has been dead for more than 20 years is not considered personal information for sections 7, 8, 19 and 26 of the Access to Information Act, you are still saying that the census information will be privileged forever?

In respect of the census information, in a letter dated January 11 of this year from yourself to the Chief Statistician of Canada, you referred to certain proposals to amend the Statistics Act to allow for the transfer of identifiable census returns to the National Archives for archival and historical purposes. Your opinion on this proposal was as follows:

"It will come as no surprise to you that this Privacy Commissioner has not been persuaded that it represents an acceptable balance between the preservation of individuals' privacy rights and the interests of researchers and genealogists."

When you refer to the preservation of individuals' privacy rights, for how long do you feel that the privacy right of an individual should be preserved, in spite of the fact that your mandate says 20 years after death?

Mr. Phillips: Senator, census information is gathered by Statistics Canada on a promise of confidentiality to the people who are required to give it up under penalty of law. That is a compulsory collection of information. We get, in my office, many complaints from people about the intrusive nature of the questions I mentioned merely to testify to the sensitivity of the information. It is not for me as Privacy Commissioner or, I submit, for any other individual, to decide how much privacy the people who give up that information in the expectation that it will be held confidential and secret by Statistics Canada can be expected to give up.

In my view, dead people are just as entitled to an expectation of privacy in those circumstances as anyone else. The notion that somehow or other our departure from this earth means that all the personal information about us will be open and exposed to anyone who wants to look at it thereafter is one that no Privacy Commissioner could support. I understand the interest of genealogists and others in this kind of information, but I simply make the case that there are all kinds of data banks gathered by the Government of Canada which contain a great deal of interesting personal information which I think might be of equal interest. I do not see a special case for excusing the census. In fact, I think the case for keeping that information confidential is stronger than it is with most databases because of the sensitive nature of it.

To argue that simply because you are dead you have waived all your rights, in my opinion, is not an acceptable proposition.

Senator Milne: Even though that is a proposition under which you are mandated to operate?

Mr. Phillips: The Privacy Act also says elsewhere, senator, that information shall not be disclosed without the consent of the person to whom it relates, subject to the very limited and specific exemptions that are in the act. Even if information may be disclosed after 20 years, there is still the factor of complaint. Yes, it has escaped the definition of personal information.

Nevertheless, there is a good privacy principle involved here.

In the case of Statistics Canada, the promise of confidentiality is right there on the form. It establishes for the individual citizen, Statistics Canada, and the Government of Canada as a whole an element of trust. No convincing argument has been given to me that would justify, in the interests of some historians, genealogists, and other interest groups, violating or disposing of that trust.

Senator Milne: Thank you Mr. Phillips. I expect you and I will be locking horns on this again.

Senator Atkins: Welcome, Mr. Commissioner, and thank you for your presentation. I think it is incredible that you are in your seventh year, and this is the first time that you have appeared before this body.

As I recall, you were concerned when they made the amendments to the Elections Act about the permanent voters list and the misuse of that list. Do you still have those concerns, or are you satisfied that the Chief Electoral Officer is fulfilling his responsibility of protecting that list and using it only for the purposes for which it was intended?

Mr. Phillips: I will try to give a quick answer to that, senator, but I must say that I have not looked at this issue since the act was amended.

(1610)

Most of the concerns that I held at the time were addressed and resolved by the Chief Electoral Officer. The only remaining one was the issue of making a list available on an annual basis, which I know was a very desirable change in some people's mind. We thought that this might expose the body politic, as it were, to an excessive amount of political proselytization, but that got a little out of my brief, to be quite frank.

Our chief concern was with the consent of voters to have their names put on the list. The Chief Electoral Officer wanted to use Revenue Canada returns, because of their current addresses, as a principal resource. We resolved that by having Revenue Canada agree to put a consent box on the tax returns, and I was pleased to see that more than 80 per cent of tax filers gave their consent to have their addresses given to the Chief Electoral Officer. There were some other changes as well, but that was the principal concern.

Senator DeWare: Mr. Commissioner, given that we have a proposed act on the books that will change Revenue Canada to the Canadian Customs Revenue Agency, headed up by an 11-member board appointed from across Canada, probably political appointments, would that change your mind as to the privacy of the use of the names?

Mr. Phillips: I must give you a conditional answer because your question is based on an assumption. I am assuming that the proposed agency will be subject to all the legislative safeguards that are now in place for Elections Canada and Revenue Canada. If that were not so, then I believe we would have something to worry about.

Senator Kinsella: It is good to have you here, Mr. Commissioner. I also should put on the record that your assistant, Mr. Delisle, is a former student of mine. Therefore, honourable senators, Mr. Delisle is well trained and was one of our lead investigators at the New Brunswick Human Rights Commission when I was chairman of that agency.

It is my understanding that, under section 72(1) of the Privacy Act, all heads of the various government agencies have an obligation to submit reports to you as to how they are complying with the act. In your report, which is the subject of this Committee of the Whole, you present a table on page 48 of the top 10 departments by complaints that you have received. According to that table, from Human Resources Development Canada there were 671 privacy complaints and 356 from Revenue Canada. The number of complaints from all the other agencies drops way down to 20, 40, 19, et cetera.

Based upon what you tell us in that table, you are in constant communication with Revenue Canada and Human Resources Development Canada. What is the problem?

Mr. Phillips: First let me say, senator, that I do not know whether we have an inside man at the Senate or you have an inside man in my office, but in any case it is very useful.

Yes, that very high number of complaints from those two departments relates to one particular issue, namely, the data match in which Revenue Canada supplied the Customs forms from returning travellers to HRDC for the purpose of matching up against unemployment insurance claimant lists, in order to find people who were out of the country while receiving benefits. That particular issue has triggered one of the largest body of complaints we have ever had on a single problem.

Senator Kinsella: Has that practice stopped?

Mr. Phillips: It has stopped. We tried very hard to negotiate a compromise arrangement with HRDC because we saw some problems in that particular data match. We could not succeed, therefore, we joined with the Department of Justice in a reference to the Federal Court to test the ministerial authority for conducting the data match. We have another case ongoing to test the validity of that kind of use of the information against the Charter of Rights. We have had a judgment from the Federal Court on the first question, which found that the minister has exceeded his authority. I believe that is a fair way to describe the outcome of the case. While they contemplate their next step, the match has been suspended.

Senator Kinsella: It seems to me, honourable senators, that where the Privacy Commissioner and a few others are officers of Parliament, and whereas under our system of governance ministerial accountability is to Parliament, this is a very important area for us to mine. That is to say, when an officer of Parliament, whether it be the Privacy Commissioner, the Official Languages Commissioner, or any other officer, is having difficulty with the agencies of government, rather than using the judicial system the parliamentary system could be used.

Would you comment on that in terms of accountability of these agencies that you have difficulty with and their accountability to Parliament, and whether or not the Privacy Commissioner could be coming to Parliament with the problems that Parliament could be addressing?

Mr. Phillips: I am pleased, Senator Kinsella, to hear that suggestion raised here. The act does provide for the commissioner, should he or she feel the problem is of sufficient importance, to make special reports to Parliament. I have always regarded that special report provision as being a nuclear bomb-type of provision to deal with something that I consider to be of an all-embracing and critical national nature.

That particular case is a classic of the kind that comes up these days, and I believe we will see more of them, of departmental officials seeking to use databases which were collected for one purpose and used for another. It comes up most often as a means of tracking cheats and that sort of thing, which we all wish to