[Recorded by Electronic Apparatus]
Thursday, November 21, 1996
.1108 
[English]
The Chair: I call to order a meeting of the Standing Committee on Human Rights and the Status of Persons with Disabilities.
For the viewers who may not know too much about this committee, I'd like you to know that we've completed a study on the status of persons with disabilities. A task force has subsequently been set up and the findings of that task force are presently with the government. A positive response is anticipated by this committee.
Subsequent to that study, several months ago the committee decided to explore the impact of new technologies on privacy rights. Many of you probably know that privacy is affirmed in the United Nations Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights. It is not as clearly defined in the Canadian Constitution, but it does find a form of expression in sections 7 and 8 on the security of the person.
This committee has decided that given all we've been reading about new technologies, we would like to understand their implications for our personal lives and for our human rights. Just how far has it become invasive, and how much does who know about us, and how and where?
In a sense, we have a series of questions. We started to explore this subject last spring. We launched this exploration with three round tables. The first looked at new information technologies and human rights. The second looked at new biomedical technologies and human rights. And the third, at which we had the privilege to have Mr. Phillips as a member of our round table, looked at policy and legal frameworks that protect peoples' rights in the face of all these new technologies.
.1110
This committee also benefited from the meeting of privacy commissioners from around the world that was hosted by Mr. Bruce Phillips. It was most enlightening and, I would care to add, somewhat fear-raising for many of us who weren't quite sure how much who knew about us and just how far we, as Canadians with our own value system, are prepared to go in terms of what's acceptable and what isn't.
So this is where we are. The question becomes very clear to us. Because it's such a huge field, we're going to focus on three major areas of activity: physical surveillance, personal identification and biological surveillance. Starting with Mr. Phillips as our expert - as he is - we will look at an overview from him, and we will have specific overviews on the three areas prior to our preparation for our meeting with the general public. We expect to be out across the country and in five major cities, and to meet with people to hear what they have to say in order to ensure ourselves that those privacy rights allow us to maintain our dignity of human rights.
Mr. Phillips has highlighted the effective technologies and what they are doing with respect to Canadian privacy. Some of the technologies he drew upon for examples included computer networks, genetic screening devices, video surveillance cameras, and identification cards incorporating digitized fingerprints.
[Translation]
In addition, he identified some of the economic and social pressures eroding the level of privacy enjoyed by Canadians today and suggested some measures to shore up privacy rights.
Today, he returns to speak to the Members in more depth about the privacy issues the Committee has been exploring in recent months.
[English]
The Privacy Commissioner of Canada, as many of you may know, is considered our federal watchdog - but you don't fit that qualification on a personal level, Mr. Phillips. He is actually the ombudsman for Canadians' privacy rights. The powers and responsibilities of this office are derived from the federal Privacy Act. They include investigating complaints about certain alleged breaches of privacy; reviewing federal institutions' compliance with the act; reporting to Parliament; and carrying out special studies referred to the commissioner by the Minister of Justice.
The act is one piece of a patchwork of legislation protecting privacy rights in Canada. It is exclusively a data-protection statute, therefore it does not safeguard other elements of people's privacies - and I think this is something that Mr. Phillips will develop with us. Also, it applies to the federal government's institutions, not the federally-regulated private sector - and I think that's a concern for all of us. It sets up a regime to protect the personal information of individuals held by specific federal government institutions.
[Translation]
It also provides a process whereby Canadians can have access to the personal information collected about them and have inaccuracies corrected or annotated. Personal information includes information about an identifiable individual, recorded in any form, including information about one's race, national or ethnic origin, colour, religion, age, marital status, education, medical or criminal or employment history, one's address, fingerprints or blood type - that means your blood group - any identifying number assigned to a person and more.
[English]
I think these are very significant matters that all of us have concerns about. The Privacy Act, which was adopted in 1983, has largely remained unchanged since that time. It was reviewed by the Standing Committee on Justice and Solicitor General in 1987, and that committee made a number of recommendations for strengthening the act in what it called the Open and Shut report. One of the members of this committee, the Hon. Warren Allmand, was on that committee, so we're most pleased that we have his corporate memory to enable us to look at these issues, because we want to know - perhaps from you, Mr. Phillips - where these were acted upon.
.1115
Prior to calling on Mr. Phillips, I'd like to have the members of this committee introduce themselves.
[Translation]
The Bloc Québécois member, Mr. Bernier, will start.
Mr. Bernier (Mégantic - Compton - Stanstead): I'm Maurice Bernier and I'm the member for the riding of Mégantic - Compton - Stanstead.
The Chair: Thank you. And on this side?
[English]
Mr. Godfrey (Don Valley West): I'm John Godfrey, from Don Valley West in Toronto.
Mr. Assadourian (Don Valley North): I'm Sarkis Assadourian, from Don Valley North, Toronto.
Mr. Allmand (Notre-Dame-de-Grâce): I'm Warren Allmand, from Montreal's Notre-Dame-de-Grâce.
The Chair: And I'm Sheila Finestone, chair of this committee, from the riding of Mount Royal, in Montreal, Quebec, Canada.
A voice: La belle province.
The Chair: Dans la belle province.
Mr. Phillips, we're now trying to fine-tune down to those three areas. This is the first of three meetings that we will hold now that we have determined that there is this important interest for us. I'm so pleased that you have brought the quotation from Justice La Forest to our attention. I think it in many ways highlights exactly what we're concerned about. Supreme Court Justice La Forest said that if we are of the view that the limits of our personal privacy define in large part the limits of our freedom, then we should not be compelled to share our confidences with others, for this is the very hallmark of a free society.
So, sir, how free are we in this society? Who's looking at us, and what do they know about us?
Mr. Bruce Phillips (Privacy Commissioner of Canada): Thank you very much. You've certainly asked me some interesting questions.
Before I begin, Madam Chair, I would respectfully decline the honour of joining the company of experts. I am not an expert. Call me a fellow worrier if you like. This is an enormous field, and I certainly wouldn't put myself forward as an expert in all areas thereof.
I read the evidence that has been given by some of my colleagues in this field who have appeared before you recently, particularly Dr. Flaherty from British Columbia, Mr. Rotenberg from the United States, and Simon Davies and Paul André Comeau from Quebec. In my opinion, they have done a very good job of outlining the general privacy problem.
Although I'm sure he was too modest to say so, Dr. Flaherty in particular is the author of what I think is one of the most telling phrases ever devised to describe what is happening to our world. Seven years ago, he wrote a book called Protecting Privacy in Surveillance Societies. He described the phenomenon this way:
- In the waning years of the twentieth century, our technocratic societies can accomplish what
Orwell could only fantasise about in the aftermath of the Second World War.
I've taken note of the fact you want close in on two or three aspects of this issue, and particularly physical surveillance issues. For that purpose, I thought I'd just bring you up to date from where we were last summer, when we had a previous conversation. I'll give you just a few examples culled from the latest list of interesting developments in the field of technological applications for surveillance purposes. Some of these may seem benign to you, some may seem to be useful, and some may horrify you. But taken in total, you will see as a consequence of these few examples how all-embracing, how comprehensive and widespread surveillance of the human species is becoming.
For example, just two months ago our own government introduced amendments to the Criminal Code to allow the government to ask a judge for authority to place electronic devices on individuals to monitor their movements. This device can be used if there are reasonable grounds to fear the person is going commit a serious injury offence against somebody else. The person being monitored need not have been charged or convicted of any offence for that purpose.
.1120
An American direct marketing company can sell you a list with the addresses of 80 million American households, organized by ethnic groups. Among the 35 groups singled out in the database they're prepared to sell you are Armenians and Jews, for example. The information includes the number of children and their age range. I invite you to contemplate the value of such lists to terrorist and hate organizations.
Another service available through the Internet can track down any one of 160 million people living in the United States. That information includes the address, the telephone number, the names of the household members, the dates of births and even the listings of the names of up to ten neighbours.
I think David Flaherty mentioned to you the British Columbia Pharmanet program. That's a very interesting example. It stores all prescription records in one single provincial database linked by names of the patients. B.C. residents have no option. They must be in this collection of what constitutes fairly sensitive medical information.
While it's clear that the purpose of that is to prevent conflicting medication prescriptions being issued, which is a major cause of hospital admissions, the information can be shared with other people, including the police, for purposes that are not related to health care.
You're all aware already, I think, of a very topical issue involving Human Resources Canada and Revenue Canada, in which they're proposing to match returning travellers' customs declarations with unemployment insurance claims in an effort to identify people who may have been drawing unemployment insurance benefits without complying with all the regulations thereto. Travellers have never been told that these forms would be used for an entirely unrelated purpose, namely, detecting defective unemployment insurance claims.
The United States military has begun taking DNA samples from two million American service personnel, the purpose of which allegedly is to identify battle casualties. However, those DNA samples will also be available to police for criminal investigations, thus providing in one instant what the police could never otherwise hope to entertain - a DNA database of two million individuals who are not even remotely suspected of committing any crimes.
In the United Kingdom today some 200,000 surveillance cameras are already in use. In at least one city, they have been put into residential neighbourhoods, and they can look into private residences. Many of these cameras have powerful zoom lenses, and they can see at night. I thinkMr. Davies may have described some of those surveillance machines to you in his testimony.
Technology can now make and store a digital image of your face. It can then link up with a camera to find your face in a crowd at, for example, a political demonstration. The manufacturers of one such imaging system claim that by 1997 that product will be able to scan a database of 50 million faces in less than one minute.
There are other devices that I think are more familiar to us. They can electronically sniff your luggage for contraband; scan beneath clothing from a range of 12 feet or more; look through building walls to detect activity; and are programmed to recognize your voice and pluck your telephone conversations out of the air. A great many of these technologies - most of them, in fact - are operating without our knowledge.
Let's consider for a moment the surveillance camera. I think it's very difficult to argue that one single surveillance camera operating in a parking garage, say, or over the counter of a convenience store constitutes a grave threat to privacy. The purpose of cameras in those locations is quite clear, and I think it's difficult to argue that there aren't some benefits.
However, when we get to the stage where the number of cameras looking at us, monitored by people whom we do not know, recording information about us and putting it to uses of which we are not informed, then I think we begin to inhibit our normal human activity.
.1125
Mr. Davies, who was here in front of you a little while ago by teleconference - another interesting technology - described the widespread use of surveillance cameras as akin to issuing a general search warrant on the entire population. I think that's a very apt description.
If we truly are in a society that prides itself on limiting the power of the state to intrude into our lives, I think we have to take some notice of these alarming - I don't think it's an exaggeration to say ``alarming'' - developments. We certainly appear very ready and very uncritical about proposed technological applications that circumscribe our lives in a lot of different ways. There's always some justification attached to each, but the cumulative effect is to change altogether the way in which we are living.
There are cities and communities in this country where cameras have been placed on the streets, presumably to displace crime, but does it really have that effect? Or does it simply move the crime to someplace not under surveillance? If every place is under surveillance, are we in a sense building ourselves a kind of gulag?
I've said before that you can have perfect safety and perfect order and perfect control if that is what you want, but what you give up is any vestige of your rights as a free, autonomous, unique human being. We really have to take a hard look at how far we're going to go.
What of those devices I mentioned that can search people or peer into their homes without their knowledge? That's a technology that's now available. I think we can accept the necessity of such a technology if the aim is a terrorist, but is it acceptable for everyone? The state needs no warrant to conduct searches with these devices, yet a police officer would almost certainly need a warrant to conduct a physical search of your body or your home.
So you can see, the technologies that are already available can be used to circumvent systems of protecting the rights of the citizen against the power of the state, which have been in place for many years. Now, by the simple use of new visual technology, all of those protections can be circumvented.
I would like to take another quote from Mr. Justice La Forest in a recent case. He noted the principle of the sanctity of our private lives, which he said even the king could not overrule ``without the authority of a judicially issued warrant''. That principle has remained ever since as a bulwark for the protection of the individual against the state, and affords the individual a measure of privacy and tranquillity against the overwhelming power of the state. How is our Supreme Court now going to react to technologies that allow the state to see through the walls of the very home that has so long been protected from arbitrary intrusions?
The technology behind today's surveillance society is changing the nature of our relationships. It is, I think, a clear and present danger to a hard-won fundamental human right. We have come a long way since the days when one's home was a castle and one's body was one's own. We seem to be going in the other direction now.
I don't think this is an issue that is abstract, of interest to academics and students and no one. I discussed some of these things in our last conversation here that have concrete and real world consequences. Mr. La Forest himself said that privacy defines the limits of our freedom.
The other important point about it, I think, is that this is a non-renewal resource. If we are willing to accept, supinely, the domination of our lives by technology, or even if by sins of omission we fail to come to grips with it, we will all find it's far more difficult to get back what we once took for granted.
.1130
Let's consider the world's longest-running current soap opera, namely the Charles and Diana issue. What would they give now to regain the privacy that they have lost through the interception of their telephone calls, for example? Yet what happened to them is something that can happen to everybody in this room today, owing to the availability of simple scanning devices by which people can listen in to our cellular telephone conversations. Yes, there has been a law written concerning this, but the technology is there and scanning still goes on.
Can the person who tests HIV-positive ever regain control of such a sensitive personal matter once it becomes community property?
Can someone whose personal information is intercepted on the information highway through the Internet, for example, ever hope to re-establish control over that kind of information? You saw just a little while ago how easy it is, although in this case it was done for a good purpose. The police regularly monitor the Internet now and have managed as a consequence to prevent a couple of serious crimes - but there is another side to that as well.
In the last little while, privacy has come some distance, at least in terms of public acknowledgement and legislative acknowledgement up the ladder, if you like, of issues of moment to the public. But we still have some distance to go.
One of the problems that we have in coping with privacy is that people tend to look at it, particularly in the field of technology, as merely one element to be considered among a series of elements. That is to say, there's a trade-off between a privacy benefit and an economic benefit. In my opinion, that is absolutely and utterly the wrong way to view this subject. Privacy has to be the bedrock of our human rights, against which any other proposed action has to be judged. If you -
The Chair: I'm sorry, Mr. Phillips. I know you're making a formal presentation, but I would just like to make sure I understand you. When you make that statement, which is a strong affirmation of the right of the individual and in relation to society, does that mean you could have an omnibus bill that would do that? Or would you see this case by case in terms of each field of technology and its invasiveness? Maybe you'll answer that later. I'm sorry.
Mr. Phillips: Well, I'm sure we'll talk about that. There are various approaches to dealing with these issues. I have my favourite approach and I'll be happy to talk about it, but I certainly wouldn't by any means put it forward as a final truth.
What I think it's important for a committee of this kind to understand is that what you're dealing with here is not simply one more element in a whole lot of elements. You are dealing with a basic human right that is deserving of the most serious consideration. No invasion thereof should ever be permitted unless there was the most overwhelming evidence of its necessity. I think we're altogether too willing to say, well, you know, maybe we can catch a few unemployment insurance cheats, so it's therefore okay to go rambling through the files of millions of Canadians who have given information to the Government of Canada on a trust basis. That in my view is the wrong approach to this issue.
I think the first thing you have to consider is the rights of the people concerned, not the convenience of the bureaucrats, who in an effort to make up for administrative gaps that previously existed are now going to say that the only way they can do this is by trampling on the trust relationship they have with the Canadian public because it's going to save some money.
We cannot make money the dominant issue in deciding whether or not privacy rights are worth protecting. Yet in my view that is the concept that's implied in this unemployment insurance customs case, for example.
.1135
I told you, I think, in my previous appearance that I felt that the legal regimes protecting privacy in this country were inadequate. I don't need to go over all of that ground in detail, but I think it's worth quickly summarizing.
With the single exception of Quebec, there are no laws in this country, short of some privacy torts in some of the provinces, that specifically address the question of the protection of personal information in the commercial world. That is a huge gap.
By far the largest amount of informational traffic these days is not with government, it's with business. Every day, businesses are finding new ways of making use of personal information given to them by their clientele. For example, I'm sure you all saw that one of our major chartered banks a little while ago didn't make any public announcement but decided to take all of the client information that comes into its possession from credit card usage and put it into a single database so that it could do market profiles of all its customers. Their intention in doing that, as I understand the issue, was never signalled to their clientele in any meaningful way, and they did not obtain the genuinely informed consent of their clients.
That's a simple sample of the kinds of things that are going on.
The Chair: They have the right, then, to do what they want with that information.
Mr. Phillips: Basically, yes, they do.
The Chair: I thought you explained to us that unbeknownst to us - or we very seldom notice it - at the bottom of any one of our credit cards, be it Visa, Bank of Montreal or whatever, there is a little line that indicates that this information may be used for other purposes. Is this also on the banking forms you sign when you open an account?
Mr. Phillips: No.
The Chair: So there was no consent, in other words.
Mr. Phillips: The client account-opening forms are a bit more specific. It would pay for the committee to obtain copies of them.
Generally speaking, there is an opt-out box on some of these forms that asks if you wish to receive information about their marketing and product services and so on, yes or no. Most of them have those little boxes, but they certainly don't go into any detail on the way in which financial institutions manage and massage their client information, no.
That's not to say banks don't have privacy codes; they do. The point I make about those codes and all the other codes that are extant in the private sector these days is that what they require to make them effective and to give the public some confidence that they are meaningful codes is some form of third-party complaint resolution and oversight. That's missing.
Just to bring you up to date - and I'm sure some of you are already familiar with this - the government has taken some important preliminary steps. Mr. Manley and Mr. Rock a year ago announced the intention to press forward to develop some framework legislation that would cover both the private sector and the public sector. In September, at the conference to which Ms Finestone alluded in her introductory remarks, Mr. Rock firmed up that commitment and elaborated a bit more on the government's view of the privacy issue. I must say, I was heartened by what he had to say.
He did say that the growth of the information society had reached the stage now where it was no longer possible to separate out the information traffic in the private sector from the public sector; that it was all using common transmission systems; that there were too many interchanges; and that the time had come to have a much more comprehensive privacy law. He said he hoped to have something before Parliament by the year 2000.
I understand the complexities of the issue, but he certainly seems to be giving himself ample time, if I can put it that way.
Mr. Godfrey: He thinks he's going to be around a long time.
Some hon. members: Oh, oh.
Mr. Phillips: I have no observations to make on that subject, Mr. Godfrey. I'm equally the servant of all.
.1140
I would like to conclude with a bit of a peroration here, if I may. We have to persuade ourselves that we are not to be seduced by the faulty logic that more surveillance is going to mean a better and more secure society, at least not without serious costs. What is really at stake here is the quality of life.
I think we ought to remember the history of our own century and what happens to societies where people, in exchange for the presumed virtues of a more orderly, predictable life - and of course one state in particular comes to mind - willingly give up all the protections they have laboured so hard and so long and frequently at such cost, over so many centuries, to develop. The normal result is that if you invite people to be authoritarian, in all likelihood they're going to be authoritarian.
We simply have to say enough - no further. Let's not turn our society into one gigantic keyhole where we're all on one side and the servants of the state and the servants of profit at any cost are on the other, looking at us.
We're near the end of this century, this millennium, and I hope with efforts like this and other promising but still tentative moves we can give a whole new birth or an appreciation to privacies, and not see ourselves as the people who presided in the 20th century over a right that will be dead in the 21st.
Thank you.
The Chair: Well, Mr. Phillips, if any of us wondered whether we had picked the right path for examination, I think you've outlined an alarming picture. Hopefully this committee's work is not too late, and we can find some constructive road to follow with the background information you've given us.
I will now ask
[Translation]
Mr. Bernier from the Bloc Québécois to go first. We will all take part in the discussion, but we will start with Mr. Bernier, followed by the other members, Mr. Allmand, Mr. Assadourian andMr. Godfrey. Unfortunately, Mr. Godfrey is not feeling well today because he has a sick child at home. I hope that things are better now.
[English]
I would like to think there's a sense of comfort around here so that if a subject is broached by one of the members, and you would like to add to that issue prior to a formal list of questions toMr. Phillips, please so indicate. I think that would make for a more interesting exchange.
I hope you will find that agreeable, Mr. Phillips.
Mr. Phillips: I'm in your hands - and comfortably, too.
The Chair: Okay.
[Translation]
Mr. Bernier, please.
Mr. Bernier: First of all, I'm really pleased to welcome Mr. Phillips once more to our committee. I always listen to him with great pleasure. At the same time, he does raise a lot of issues in relation with the matter we have to deal with.
You said right from the start that there were many ways to approach the right to privacy and most of all the invasion of privacy. It can be considered as something either totally harmless or straight from a horror movie when everything that surrounds us is taken into account. You are right because the more we learn about this, the more - speaking for myself - we become wary about anything that has to do with privacy and the more we wonder whether we will be able to define the issue.
.1145
Experts have appeared before this committee. Maybe you don't want to be considered as one of them, but you are one indeed in your own way. Without losing touch with ordinary people's reality, we have heard all kinds of experts. This committee has now reached the stage where it must act, that is try to define the issues so that it may suggest actions to the government.
Of course, I don't want to go back to the matter right away. I don't see why we should insist on the fact that there needs to be a framework of rules for the private sector because it is so obvious in my opinion. Government should act in this field.
As far as our work is concerned, we intend to go meet people throughout Canada, from ordinary citizens to persons with some expertise. We want to make sure we know what values are shared by Canadians from across the nation in the area of privacy rights. We want to know what their concerns are and which aspects of their privacy they value enough to ask the government to protect them.
You did enumerate some of those values, but I would like you to identify your own personal values. I want to know which aspects of his privacy Bruce Phillips values enough to want them protected. You gave us a definition. Anyway, I did take it as a definition, this morning, when you said that privacy was a fundamental right. I would like you to specify whether you would prefer this fundamental right to be entrenched in our Constitution, for example.
I want to know what you think and what is most valuable for you as far as privacy is concerned.
[English]
Mr. Phillips: Mr. Bernier, I'm glad you didn't ask me to speak on behalf of all Canadians, because apart from the incidental information that comes to me, I certainly can't do that, although some interesting available surveys do give a pretty good insight into the general attitude of the public.
The Chair: I believe you've shared the Ekos survey with us, which we will find very helpful.
Mr. Phillips: Yes. There now are some others, too, Madam Chairman, which I think we will ship over to you. They will show the same thing, the same continuing high level of public concern about the loss of control.
There are two elements in informational privacy: one, control; and two, openness and transparency. I think those are two of the necessary elements to any decent privacy regime. People have to know what's going on, and as a consequence, they have to have the ability to exercise some control.
You've asked me for my concept of privacy. I don't think it's much different from anybody else's. I want the right to shut my door at night and not have people prying through it. I want to be able to decide for myself what it is the world is going to know about me, subject to those values that have been established as a general community standard. I don't expect, for example, to be able to engage in activities considered unlawful by my fellow citizens and not have to answer for that through the disclosure of my personal information, that type of thing.
I want to be able to walk down my street without wondering who's looking at me. I want to be able to go into a store and not be treated as though I was a criminal suspect and asked to produce my entire life story. I want to be able to have relations with the people with whom I do business - my bank, that sort of thing - in the confidence that those things I regard as sensitive and personal to me are going to remain there, and the embarrassing information about the modesty of my means will remain my own personal information.
.1150
Those are the ordinary, practical aspects of privacy that mean so much to all of us. If you strip them all away - I hate to use the overworked word ``paranoia'', but I think people can be excused if they start to feel slightly paranoid when they cannot enjoy the normal expectation of some control over their own daily life.
You asked about the constitutional aspect of this. I did tell the committee on my last appearance, I think, that I appeared in front of the Beaudoin-Dobbie committee, the Senate-Commons committee that considered constitutional change back in the early 1990s, and asked them to include privacy as a specific right in the Charter of Rights and Freedoms. It was a proposal that did obtain some sympathy and a favourable reference in the committee report, although not a recommendation. I still hope that one day this will come about.
There is certainly nothing novel in the concept, Monsieur Bernier. The right to a private life is already included in many basic covenants, including the Universal Declaration of Human Rights, the European Covenant on Human Rights, the Quebec Charter of Rights, but not, unhappily, in the Canadian Charter, although there is a interesting piece of history here that may be of some moment to this committee.
When the Canadian Charter was in its formative stages, among the early drafts a privacy right was included. It's perhaps worth mentioning that the justice minister at the time was one Jean Chrétien.
Somewhere along the way, in all the horse-trading among the provinces and the federal government, that was dropped. I regret that very much. I would like to see it but back in.
What is really required is not only better law - and we seem to be slowly, painfully advancing in that direction - but also a greatly heightened state of mind in the public on this subject. Our freedoms in this kind of a society, where people generally are well intentioned - and I would never accuse any of the people using all this technology of deliberately setting out to erode our personal freedoms - do tend to slip away on quiet feet, bit by bit by bit. In fact, most often that's how we lose our freedoms. I think our recent history would demonstrate that.
So what is needed now is action on several fronts. We need a much more concerted effort to keep the public informed, to engage the public. I'm very glad this committee is going around the country. It can have nothing but a beneficial impact on public understanding of this issue. Offices such as mine need to be engaged in a much more active dialogue with the public. We have to function as resource information centres for the public. We try to do that now, but we don't have any legislative mandate for the purpose, and as a consequence, no resources. But much more must be done in that area.
I guess the overriding priority right now would be a much more comprehensive privacy law enacted at the federal level that would cover, at a start, that portion of the commercial world that is covered by the Parliament of Canada, as well as improvements to the existing Privacy Act and a serious working group with the provinces to do our best to get harmonizing legislation in the provinces as well. Some preliminary work has been done in that area, but more needs to be done.
The Chair: Thank you very much.
Mr. Phillips, that particular area, if not examined here today, we might wish to have some written information on for our final report. This is with respect to recommendations for legislative action to be put forward to Mr. Rock in the preparation of the year 2000 document you referred to earlier.
As well, we might wish to have some note that would indicate that the federal-provincial-territorial committee on justice does start to address this issue. As you and I know - in fact, as all members around this table know - those negotiations are very long in coming to fruition and take a great deal of study.
.1155
Mr. Allmand, please, followed by Mr. Assadourian, Mr. Bernier and Mr. Godfrey.
Mr. Allmand: Thank you, Madam Chair.
Mr. Phillips, in the 1960s, Parliament, confronted with the growing use of electronic devices, which was at that time a developing technology, whether they be bugs that could be placed in your home or wiretapping, decided to act. They enacted laws to outlaw unfettered bugging and wiretapping that was being used not only by the police but also by journalists and private detectives. Of course, arguments were made by the police that these devices were necessary for security and to prevent and investigate crime. Journalists argued that they were necessary to inform the public, that the public had a right to know what was going on. Private detectives, of course, were using them for all sorts of things.
At that time, if I recall, Parliament said yes, there were some legitimate uses, but finally they decided to outlaw the use - as a matter of fact, they made it a criminal offence - unless you had certain very specific, serious reasons, as you mentioned. Then you had to get authorizations from either a judge or the Solicitor General.
Technology, as you pointed out, has advanced considerably since the 1960s and the early 1970s, when we passed that law. Now the devices are much more advanced for listening and also for watching, for taking blood samples - all sorts of things.
Can we not say, since we took a decision in principle to curtail what was a technology at the time, that we should simply advance the use of those same principles and enact legislation that would apply the same basic principles we applied to the technology for wiretapping and bugging to a wider range of technology and devices today based on the same democratic principles and privacy principles we did at the time? There's a precedent there we should follow but update considerably.
Mr. Phillips: My short answer to that, Mr. Allmand, is right on.
The Chair: I want to advise you that they are coming in here in two weeks. They certainly will be heard before we go out.
So if you two want to get together with a list of what we should be asking, that would be great.
Mr. Phillips: Let me just say, it is that precise principle that has animated a number of the recommendations we have made in several of these areas. For example, the use of DNA evidence: there is a case of extremely sensitive and highly intrusive personal information that should be available only to the state under very rigorously controlled and very specific instances for law enforcement purposes. While it may be one thing for the police to be able to get a DNA sample for the purposes of identification, it would be quite another for the police to take the entire sample and all of the analytical material it contains and put that into a file for some possible, undescribed use in the future.
I'm glad to say that the justice department subsequently brought forward amendments that Parliament has approved and that by and large respect the principle you have just enunciated,Mr. Allmand. When you have a technology that is capable of enormous surveillance capacity that can be used for ill or good, it's like any other technology. Look at atomic energy. You can blow up the world with it if you want, but people have decided, generally speaking, that's not the best thing to do with atomic energy. It's better to try to circumscribe its use to obtain the maximum benefit for human betterment and strictly control the possibility of its misuse in ways that are going to hurt human beings.
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That to me is the basic issue involved here with all of technology, not just surveillance. In the case of surveillance technology, these devices are now becoming so widespread people are -
You know, I don't like the idea of some person sticking cameras out on the street and treating me as though I were a potential criminal. I really don't like the idea, as was proposed in Britain a couple of years ago by a commons committee in the mother of parliaments, of all places, that every male child born in the United Kingdom should be required at birth to give up a DNA sample against the possibility that at some point in time, during the course of the lifetime of that individual, there might be some reason for the police to look at it. This is putting in place the concept that everybody at birth is regarded as a potential criminal suspect. That introduces an element into our society that I don't think we really want.
So when we're dealing with technology, whether it's surveillance technology or any kind of technology, we have to ensure that we get the good out of it and that we have absolutely hedged about those technologies the rules that make sure they can't be abused.
Mr. Allmand: Mr. Phillips, as the chair pointed out, ten years ago I was part of the justice committee that did a very extensive review of the Privacy Act. In chapter 7 we dealt with emerging issues. As a matter of fact, a lot of things we spoke about have happened. We made a few recommendations. With respect to your own office and your own act, I want to know whether you think these recommendations are still valid.
We recommended very specifically, for example, that the definition of personal information in section 3 of the Privacy Act be broadened to include all types of electronic surveillance, including videotapes, urine specimens, photographs, tape recordings, etc. Is that recommendation still valid?
Mr. Phillips: Certainly the definition of personal information should be updated in the act,Mr. Allmand. It has been overtaken by technological developments. The Supreme Court in a couple of cases has been helpful. For example, video surveillance was involved in one particular judgment, in which it was held that it constituted personal information-gathering of a sort. It would be much better, of course, to have these things embodied in an updated act. Quite right.
Mr. Godfrey: As a matter of clarity, I'm looking at the act. It says under paragraph 3(c): ``any identifying number, symbol or other particular assigned to the individual''. Paragraph 3(d) says: ``the address, fingerprints or blood type of the individual''. I would have thought ``any identifying - other particular'' would pretty much cover it, and would anticipate almost anything. I think under that heading almost anything would be data, certainly in the modern world.
Mr. Phillips: Mr. Godfrey, the only answer I can give to you is that our own legal advisers tell us there is some ambiguity in this language. It should be sharpened up.
Mr. Allmand: That's one of the problems the committee found at the time. It also recommended that the use of polygraph and urinalysis be added to your areas of survey. That still should be done, specifically.
Mr. Phillips: Yes.
Mr. Allmand: The committee also recommended that the act be extended to the federally regulated private sector. For example, the act deals with data protection and the rights of privacy under agencies of the federal government, not to the federally regulated private sector - the banks, the railways, the airlines and so on. That seems to me also a big gap. Do you believe this still should be covered by the act?
Mr. Phillips: I believe that fervently, with all my heart.
I would add, Mr. Allmand, that you might find elsewhere in that document a recommendation of your committee that crown corporations as well ought to have been covered. They were very close to doing that, as a matter of fact, but for reasons not known to me - that happened prior to my time - the government decided not to proceed in the case of crown corporations. I think Petro-Canada and the CBC were instrumental in persuading the government not to go ahead at the time. The CBC is a particular case, since there is a journalistic aspect to their work. But I still think that ought to be done. I think some of the circumstances involving companies such as Petro-Canada and CBC can be accommodated, but they certainly ought to be covered.
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Mr. Allmand: Thank you.
The Chair: Mr. Assadourian.
Mr. Assadourian: Thank you, Madam Chair. I have two short questions, then I want to make my point.
I think we're discussing the balance between security and privacy. There are people who think they will have more security with more surveillance of citizens. You mentioned in the newspapers, too, that you oppose the government finding out if travellers to the States are really cheating on their UI benefits. Your argument was that it doesn't have something about that on the form. But what if they were to ask, ``Would you agree that information gathered from individuals by the government can be used for other purposes after it has been stated?'' That's my first point.
Second, how do you explain to a victim's father, or mother, or relatives - You mentioned that in the States two million soldiers have been asked to have DNA tests, to have their DNA records with the government. If someone's loved one is killed and that data is used to apprehend the criminal, how would you say no to a victim's family? How can you say to them that DNA records cannot be used to catch the criminals? There's one argument that the parents will give you.
Also, in major cities, if you live in a highrise building you pay rent, and that rent also includes additional expenses incurred for your protection or for surveillance or security. People willingly pay for the camera and for a security guard there and everything. The security guard knows who is coming in and who is going out. People pay extra for it. How do you argue against that case?
The other point is that a few years ago, when the U.S.S.R. was still a flourishing evil empire, it had the habit of discrediting individuals it didn't like. If a Russian Jew wanted to emigrate to Canada, let's say, that person would be labelled a spy or a subversive element or any other thing. These people used information to discredit the person. That person, when he somehow came here, at the end of the day had no right to ask the government why he was denied or delayed. If you know, you can correct the situation. If you don't know, if the government doesn't tell you what the situation is, you cannot correct it.
I have a riding that is 50% or 55% immigrants. They have this kind of concern. Some of them come from third world countries. And they have a problem: they cannot get government information. Even if they go to court, the judge doesn't give them the information needed in order for them to correct the record given to our system by the foreign government.
So how do you balance those things and where do you draw the line between balance and security?
Mr. Phillips: I'll try to deal with those very specific examples, starting with the last one first.
Under the Canadian Privacy Act, you have a right to seek correction of your files. You have a right of access to them. You, Mr. Assadourian, can go to any government department in Ottawa and ask to see any information they have about you. If you feel it's incorrect, you have a right to ask for a correction. And even if the government doesn't agree with your correction, they are required under this act, this law, to include a note in your file stating your objection and the correction you want made. You have that right in Canada under the federal Privacy Act.
The Chair: Does that include credit ratings?
Mr. Phillips: No. Credit -
The Chair: I don't want to muck it up.
Mr. Phillips: It would to this extent, Ms Finestone. If the federal government file happened to include a note about your credit rating, which had been obtained from some other source and is incorrect, you would have a right to challenge it. Absolutely.
The Chair: Okay.
Mr. Phillips: You have the right to challenge the accuracy of anything in any government file concerning yourself.
Mr. Assadourian: Can you get that by approaching the privacy commissioner?
Mr. Phillips: No. First, you approach the department concerned. If, for example, it's your pension file you want to see, you would ask HRDC for it. If it's a tax matter, you go to Revenue Canada.
If you are denied access and you feel you were improperly denied access, then you complain to the privacy commissioner and my staff and I investigate the case and decide whether the government was right or wrong in withholding access. If we feel you are in the right, we recommend that they give it to you. If the government still declines to accept my advice, then we appeal to the Federal Court. That is the basic process.
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Mr. Assadourian: So that's the process.
Mr. Phillips: There is a large public document called InfoSource, which lists every database held by the federal government. They're listed by department. Generally speaking, in InfoSource you can find a reasonable description of the information contained in the data banks. If you still have trouble, you can call either the department or my office and we can help. That's the way we work.
You mentioned the example of apartment buildings. Yes, people want to feel secure in their apartments, so they don't object to a camera. How would a tenant feel, for example, and I'm not being facetious - Let's say a single gentleman or lady went back to his or her apartment some night with a companion and suddenly found that the picture taken by the security camera had been duplicated in some gossip magazine somewhere. Just follow me through this. You have a camera that has the capacity to record everything that it sees -
The Chair: In many buildings, everything also shows on your television screen.
Mr. Phillips: Yes, it does.
Is the television screen itself kept in a private place where nobody can see it except the authorized security guard? Is there a contractual commitment on the part of the security company that the information gained as a consequence of its security operations will go no further? Those are all important questions.
The reason I mentioned that example is to show that while you may get the benefit of improved security as a consequence of the surveillance of the hallways in the building, at the same time you must be pretty careful to ensure that the information is well protected and that the people who gather it are under legal obligations with respect to its confidentiality and security.
With every technological application, there's a yin and there's a yang. Anytime anybody asks me for information, I ask them what they're going to do with it and how they are going to protect it. We really ought to do those things.
In the case of the DNA samples and the military, it is a fundamental principle of fair information practice. And I would put it another way, Mr. Assadourian. It's a fundamental principle of mutual self-respect, which is really all privacy is. If you give me information for a specific purpose, I'm not going to turn around and use that in some other way for some unrelated purpose without telling you upfront, in advance, in big letters, and getting your consent to do it. That's only fair. That's one of the basic bedrock principles of fair information practice.
If I joined the American army and they took a DNA sample and said they really needed it because I might get killed in the service of my country and they wanted to be sure they could tell my relatives, and I find out down the line that the police have found out about my six unpaid traffic tickets because I gave a DNA sample, I'd be very unhappy about that. I don't think that's fair.
I think the thing that animates decent societies is observance of the principle of fairness: that we treat each other with a reasonable degree of respect and are not going around behind each other's backs with little pieces of information that we can use against each other. That is not the kind of open, transparent, candid society we want to build.
That's wrong. It shouldn't be done, and that is in the federal Privacy Act. The Government of Canada, under this law, is not permitted to use information that it has from you on your income tax return, let's say, in some other totally unrelated way without getting your consent. That's what this law says.
It does indeed list some specific exceptions. The government can disclose information to other people without your consent in some specific cases, but they are limited and they are specific.
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The basic principle of fair information practice is you've given me information, you've trusted me to treat that information with respect, and I am not going to break that trust.
Now, that is precisely the issue that is involved in this whole customs excise thing. People have given Revenue Canada a lot of information - important, sensitive, personal information, geopositioning data. I was out of the country on this date and I came back on this date. That is personal information, and I gave it to you because you need this for the purpose of enforcing the Customs Act. I have told you I was away from the country, I bought $150 worth of goods, and I'm telling you this so I can pay my duty to my country. Now I find you're using this for some unrelated purpose.
Millions and millions of Canadians who gave that information are involved, and they're now going to have bureaucrats rifling through those files because it's convenient and because they have a section of the Unemployment Insurance Act which they previously, for administrative reasons, could not adequately enforce. They're now going to break the trust they have with you to make their lives easier. In my opinion that is not fair.
What would be fair is if they did amend the customs form that says yes, we might use this information as well for purposes of enforcing the Unemployment Insurance Act. Then you know. It's open, it's above board, and you have been warned.
But to go back into history, as they are proposing to do, and ramble through your files, in my opinion - this is a lay opinion, but I think it's worthy of some examination - is tantamount to unwarranted search and seizure. It is fishing through records of people without identifying any particular person who might have been in breach of the law, just in case they might get a hit somewhere. Do we want our government stooping to those kinds of methods? I don't think so.
The Chair: Before we go to the next witness, I wonder if you could answer - There are some things we need to know for technical reasons and because Mr. Assadourian raised them. What rules are in place to regulate the resale or misuse of videotape footage obtained by video surveillance? You used the apartment example. Very often, when she has nothing else to do and doesn't like what's on television, my mother sits and watches who's going through the front door. She found me going to visit my new apartment and I didn't stop by. I got into trouble.
When we move into an apartment building and they have this surveillance protective device in there, do we sign something for it? Are we aware that it goes into the homes on the television camera? Do we have to know that? What are the rules, or are there any rules, about that, and would it be provincial law versus federal law?
Mr. Phillips: In the case of rental property, unless it involved the federal government directly, it would be under provincial law.
The Chair: But it's telecommunications.
Mr. Phillips: I am not aware of any legal regime covering such activities. Unless it's covered by private contract between tenant and landlord, I don't think there are any rules. I'll ask my staff, but I think I'm right about that.
Mr. Assadourian: Even at the House of Commons, Mr. Phillips, you see we have cameras all over the place. When you go down to security, there's a camera watching you on each and every floor, each and every corridor. That's just for your information - if you walk down the street, down the hallway.
Mr. Phillips: Yes, I'm aware of that. In fact, I've been around here a long time,Mr. Assadourian. I was here when a bomb went off in a washroom just outside the House of Commons back in the 1960s. This is a natural magnet for people with grievances, causes of one kind or another, and there have been many incidents on Parliament Hill. The case for some reasonable surveillance and security is well established here. But I don't think you can apply that argument to every circumstance of life. Members of Parliament and the Parliament itself are special. We have to look after you folks.
The Chair: Thank you.
Mr. Phillips: I don't think you're going to get any big argument from anybody.
The Chair: Mr. Godfrey.
[Translation]
You are first. It is your turn to hear nice things being said about you.
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[English]
Mr. Godfrey: I have a question on the last thing you were raising. I was looking at the act. This is about the cross-referencing of Revenue Canada data on customs declarations with UIC data.
The Chair: It's retroactive over three years.
Mr. Godfrey: I notice it says under sections 7 and 8 that
Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except
- (a) for the purpose for which the information was obtained -
In other words, do they give with one hand and take away with the other? Is that what I'm to understand it's about?
Mr. Phillips: It is that very section of the act that is being held in front of me as the justification for this proposed customs and unemployment insurance data match.
The language in that section is very broad, but it does not, in my view, constitute authority for any deputy minister or minister to throw over the entire regime of the Privacy Act. If it were interpreted that way, Mr. Godfrey, we might as well shred this one now, because otherwise the act means nothing.
There is a policy with respect to data matches of the kind proposed here that requires departments of government that propose to match data banks to talk it over with my office so we can examine the match and offer any observations we feel are pertinent. We have done that in this particular case.
The departments were well aware of our reservations about the retroactivity aspect of this matter. They have not raised an objection to our proposal that if they want to do this kind of a data match, there has to be openness and transparency associated with it, by way of ample notice on the customs form itself. We do not like the idea of retroactively going back into all these people's files on a fishing expedition. We told them that. They're well aware of it.
I would not read that particular section of the act as representing permission - and it is the advice we get from our own legal counsel - for any deputy minister or minister to do anything he or she likes any time with respect to personal information. It still has to comply with the general spirit of the act.
The Chair: They've ignored your advice and they have undertaken the retroactive steps.
I don't know, John, whether we ever got that answer.
Mr. Godfrey: It seems to be in play. Is that what -
The Chair: I don't know.
Mr. Phillips: We're still discussing this with the department - I think it's fair to say that. It has not yet abandoned the notion of a retroactive examination of the files.
The Chair: The whole question of data matching and data mining was something we wanted to have addressed within the federal government, as well as whether or not the consultations are a matter of legal obligation, policy or simply courtesy.
I think that's what we're trying to get at. If it's obligation, what is the follow-through? I don't know if Mr. Phillips heard the question.
Mr. Godfrey: Let's find out what Mr. Phillips has been discussing.
Mr. Phillips: I'm properly reminded by my executive director, Mr. Delisle, to be careful in what I say here because I may well have to make findings on complaints on this issue and I can't be seen to be prejudging it.
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The Chair: I see.
Mr. Phillips: I can only tell you that as far as I know, they have not yet given up the notion of retroactive investigation of the -
Mr. Godfrey: I also noticed there's another exemption, (l), which says any time a debt is owed to the federal government, that's an exemption. Presumably one might argue that in a sense the UIC folks might be owing something to the government if they're collecting improperly. That's a kind of debt, isn't it? Anyway, it's just a way a creative mind works on a Thursday morning.
I guess my larger question would be this. Your functions are fairly closely circumscribed by this act, but then there's another section, I think it's section 60, which says at the request of the Minister of Justice you can undertake special studies. What I want to know about is the frontier between your formal responsibilities and your informal responsibilities. I would gather from what you've said today and on previous occasions that informally you see yourself functioning as a kind of research centre for privacy issues, whether they formally come under the act or not, as part of your mandate. The question is whether that's a true observation.
The second thing, more specifically, is when Ministers Manley and Rock were considering new measures, was it automatic that they would consult you? Did you have the right to be consulted? Or is that just a question of relationship?
Mr. Phillips: The answer to the last question is they're under no obligation to do so; absolutely not.
You have raised a subject of some interest to me and to my office, and you are quite right, the mandated mission of this office is to investigate complaints and make findings thereon, to do what audit work we have the resources to achieve, and to submit an annual report on those activities annually to Parliament. But if the office were limited to those activities it certainly wouldn't be relevant to this discussion this morning.
Particularly in the last few years, with the exploding nature of the information world and the growth of technology, we have found members of Parliament, for example, whose servant I am, as you are aware - this is considered to be an office of Parliament, since I report to nobody else - are constantly asking us for information on these subjects. The general public submits thousands of inquiries to us every year, many of which touch on these subjects. In my opinion we would not be of much use to anybody if we did not make a serious effort to try to keep abreast of the changing world in which we're operating.
The justice department has not, as a matter of fact, ever asked us to do a special study for them, but we have done a number of studies for our own benefit. We have hired people or done in-house studies on several topics this committee has found to be helpful and of great interest, such as the privacy aspects of biomedical technology. Some of these are now considered to be seminal works and they are in use in academic circles and by privacy offices around the world.
Perforce, I guess I'm saying, the activities of my office have expanded to include a good deal of informal research and public education, public speaking activities. I don't think we could have survived and been useful to Parliament if we had failed to do that.
Mr. Allmand: I might point out that the report in 1987 recommended that section 60 be amended to give you specifically the right to conduct research and so on. That amendment never took place, but you're doing it anyway.
Mr. Phillips: We're doing what we can.
The Chair: One of the questions we want to look at is to what extent the Open and Shut study you did effectively affected and improved the Privacy Act, given the needs and the expanded change and role of privacy in our daily lives. Secondly, if the current mandate is too narrow, where do we see the potential to recommend consideration for change to the Minister of Justice? Those are some of the issues we would like to see refined, particularly article by article, as you've been asked by Mr. Godfrey and as has been noted by Mr. Allmand and others as needing to be refined. We would certainly, in a consultation white paper, be prepared to look at those in our final report.
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Mr. Phillips: Mr. Godfrey, let me give you one example of the way in which the function of the office has altered. You are currently considering a proposal for a permanent electors list. Two years ago, when the chief electoral officer started work on this, he recognized that the information-gathering activities needed for the construction of such a list might well have privacy implications. He came to my office and said ``I'm working on this. I would really appreciate some advice from you people on these subjects.'' As a consequence of that, we have been in constant touch with him over the last couple of years.
What he came up with in the end reflected, to an important degree, some of the suggestions we had made. As a consequence, things that might otherwise have triggered an objection on a post facto basis from a person such as myself have already been taken into account in advance. More and more departments of government are calling us for an informal staff view of a particular proposal. That, of course, is why the data match policy was put in place.
As the government itself gets involved in more and more technology applications, there is more and more demand for consultations with our office. We're only too happy to do that. I think it's important that there be this kind of an organization somewhere in the federal establishment
Mr. Godfrey: Then it's entirely appropriate to have these formal open discussions with you, not only for us as a committee but as we proceed with our work. Because you are the locus in the government that presumably knows more on a professional basis about these matters than any other part of the government - or one would hope that's the case - we can informally consult with you and your office as we shape our studies, understanding that you don't have to take an official policy line, but you may guide us informally if we just seek your advice through researchers.
Would you find that a completely comfortable arrangement, or are there any limitations on our ability to consult with you?
Mr. Phillips: I try to take as practical a view of these things as possible, with the necessary respect of the legal forums, of course. The only limitation that applies to me is that I must not, as an investigator of complaints, be put in the position of prejudging complaints themselves. But subject to that one limitation, we want to do everything we can to be helpful - absolutely. I don't think we're doing anything here we ought not to be doing.
Mr. Godfrey: Thank goodness for that.
[Translation]
Thank you.
[English]
The Chair: Are you finished? Okay.
[Translation]
Mr. Bernier, please.
Mr. Bernier: Mr. Phillips, even though it might not be our first concern in our future work on privacy, I want to refer to the needed link between what is happening at the federal and provincial levels. You mentioned earlier that a working group could be set up to harmonize everything that is being done by the federal and provincial levels and you seemed to imply that maybe it was not a priority but certainly something that is needed.
That was your answer. I would like you to elaborate on that point. You mentioned harmonizing what is being done at the federal and provincial levels, probably by setting up a working group such as yours. At what level should provincial commissions like your own be working and what mandate should they be given?
In other words, what should be the mandate of this working group so that it may come up with very specific recommendations?
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[English]
Mr. Phillips: There is already a fairly active process of informal consultation among privacy commissioners. The solutions to these problems, at least in a legislative sense, can only be done by governments.
I think you're aware there's an organization called the Uniform Law Conference of Canada, which consists of various interested bodies, including governments. It is now looking at the issue of information and privacy law in Canada, but the Uniform Law Conference is an advisory body and takes a very long time to get anything done.
My view of an effective body - and here I am stepping a bit out of line, because it's not my business to tell governments how to do things, even though I do it a lot - is a committee of deputy ministers or assistant deputy ministers who are given a specific mission to come up with a set of recommendations for their various governments. That is the customary practice. Mr. Allmand can speak to that more authoritatively than I can, given his long experience in the Privy Council.
That's what I would like to see put together now. The government is working on some legislative proposals to lay before Parliament. It seems to me at the same time it wouldn't be a bad idea if it constituted a federal-provincial working group composed of very senior departmental officials to work on a set of recommendations for privacy law that might be reflected in provincial and federal statutes together.
I don't think I could really go much beyond that, Mr. Bernier. Does that deal with the question?
[Translation]
Mr. Bernier: Yes, all right.
[English]
The Chair: John.
Mr. Godfrey: I want to return to an old subject in a sense, which is the social insurance number and all the abuses it's been subjected to. Now of course the technologies are becoming more enhanced. You not only have a number, you have all this encoded information. We've seen in various provinces, like my own Ontario, where we're getting new ID cards for health purposes.
Do you have some words of advice on this subject for us? Do you have warnings as well as solutions to how the federal government can appropriately try to recover some lost ground, which I think was the case with the SIN number in the first place?
Mr. Phillips: The social insurance number has been appropriated by the private business community and by provincial governments as a handy prepaid bookkeeping system, gratis the Canadian citizen and gratis the Government of Canada.
When the social insurance number was first introduced - I think Mr. Allmand might have been here at the time, and I was, in another capacity - questions about its abuse were raised and the government felt quite confident that those fears were not well grounded. The government's expectations proved to be wrong.
In hindsight, Mr. Godfrey, I guess it's easy to solve that problem. You say the government should have embedded in the law a stipulation that people couldn't be denied services if they refused to produce their SIN numbers for purposes other than those approved by the government. It never did.
The Government of Canada itself though did clean up its act. The SIN number was used by almost every department and agency of the government as the common personal identification system. But over the last several years, the use of the SIN number has been greatly restricted by the Government of Canada.
Unhappily, the good example that the federal government has set hasn't been followed elsewhere. It's still now demanded by people for all kinds of purposes. There's no law against that, as you know. The only recourse the ordinary person has is to refuse to give it if he or she feels it's that important.
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If we got into another system, in which citizens were carrying cards of that nature around that certified their eligibility for various government services, I would think it would have to be written in that they can be produced only for specific purposes and their use for any other purpose would be prohibited. I see no other answer to that problem.
It's an urgent question, because now, as you know, proposals are around for cards that in a sense would amount to basically a common national identity card. I hope we don't get to that. Nevertheless, things such as the health card are around, and we're always going to have to be carrying some sort of documentation for ID purposes. Who can demand it has to be carefully written down and enforced.
Mr. Godfrey: Why can't there be a retroactive piece of legislation about giving people the right to refuse their SIN for everything but a correct government purpose? Is it because the cat's out of the bag - it's too late? Wouldn't this make a good place to start?
Mr. Phillips: I agree with you, but I can't give you an authoritative legal view on the merits of that proposal. One of the arguments advanced by the government at the time, I recall, was that it was impossible to prevent people from using a number. I had difficulty with that. The number is on a card, after all.
The Chair: What about your licence plate as you're travelling through all these newfangled widgets they're going to put on the highways? When you're answering Mr. Godfrey, I would appreciate it if you would keep that idea in mind too, because that's right on the mark now.
Mr. Phillips: Yes, it is, although I think the licence plate issue is different in character and kind. It's not the same thing.
A licence plate is there not just for law enforcement purposes. It certifies that the automobile has been registered, that it's safe to operate, and that sort of thing. Yes, it can be used for geopositioning data purposes. For example, if you go onto an electronically operated toll road it can take a picture of the car and you might get a bill for the toll. Those are all uses of information that are known when you buy an automobile. The courts have held that driving is a privilege. You have to comply with certain terms for the issuance of a driver's licence. You have to pay your tax to use the highways. That's what that plate says, that this car's tax has been paid and it can go on the road. If it's not there, they take the car away.
It's not quite the same issue, I don't think.
Mr. Godfrey: To switch completely to the whole issue of genetic screening, a lot of concern has been raised about it. I was wondering, first of all, how prevalent it is in Canada, in the commercial sector, the private sector, or the federal or provincial sector. What's your information on that?
Secondly, what are our protections, particularly in the federal sector, if this is going on? If someone is using it for federal employees, does an employee go to you or to the Human Rights Commission or to the Public Service Commission?
Those are the two questions: the extent of genetic testing commercially and publicly and the degree of protection we have in that regard.
Mr. Phillips: To the best of my knowledge, the Government of Canada and the federal sector are not engaging in any DNA testing for employment purposes. In fact, its use for that purpose is - again to the best of my knowledge - extant almost nowhere in Canada. There may be some insurance applications. I'm not too sure about that. Certainly the interest of the insurance industry in DNA information is well known.
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If it were to be started as an employment device, a prospective employee or an employee could certainly complain to me about an improper collection of information and I would have to look at it based upon the terms of the collection itself and its relevance to the Privacy Act. But I think,Mr. Godfrey, we're not at that stage yet.
The only laws I'm aware of with respect to DNA sampling are in the criminal law, in which there is a bill that has set forth the terms and conditions under which the government can collect DNA samples for the purposes of enforcing the law. We were consulted about that, too, I might add. We supplied a list of offences for which we thought DNA sampling was a justifiable law enforcement tool. We also had some recommendations to make about the limitations that should be applied to its use and retention. That's the only area I'm aware of in which the Government of Canada is involved in DNA sampling, and I know of no other usage in the country.
Mr. Godfrey: Thank you.
Mr. Phillips: Drug testing is a little different, mind you. There has been widespread drug testing in the armed forces, although that program has been suspended.
The Chair: Mr. Phillips, you talked to us the last time you were here about the fact you'd like to see a privacy impact analysis undertaken and attached to every piece of legislation. You also addressed the question of the need to develop what I guess you'd call an ethical framework.
Having been very much involved in the development of a federal plan for gender equality, which required an impact analysis of all legislation and required disaggregated information so that we could take a look at our society and see how the balances came out, I was curious about how you would do a privacy impact analysis. But more importantly, what did you mean by that ethical statement that you wanted, or ethical framework? Is it somewhat like the Charter of Rights and Freedoms - that is, a legislative framework that expresses our values? Would it be an addendum to a charter? What is it, and how would you measure it?
Mr. Phillips: It's an up-to-date code of behaviour. Let me put it this way. When you were a little girl instead of a big girl -
The Chair: I can't remember -
Mr. Phillips: When we were children, let me put it that way; that's more politically correct and acceptable. When we were children, I think most of our parents told us it's right or wrong to do this or that. Among the things it was wrong to do was to peer through our neighbours' windows out of sheer curiosity and that kind of thing. I think we just have to bring our code of human behaviour up to date, to take account of the way life has been changed as a consequence of technology.
For example, if it was wrong to peer into your neighbour's window, it is equally wrong to go down to Radio Shack or some other electronics store and buy the component so you can listen to your neighbour's telephone call. I think it has to be brought into our modern culture that these technologies - which are going to become increasingly an everyday part of the lives of our children, particularly - be used in ways that are respectful of our fellow man. That's what I meant.
Mr. Godfrey: Mind you, those rules never applied to party lines. Anyone growing up in the country had freedom of access to all conversations. I don't know how the principles changed, actually.
The Chair: That was fun, wasn't it?
Mr. Phillips: As a matter of fact, Mr. Godfrey, in my own childhood we were on a party line at one stage of the game and were very glad to get off it.
The Chair: Mr. Assadourian, I see you have a question. Mr. Allmand, do you have a question? Monsieur Bernier, pas de question? Allez-y.
Mr. Assadourian: I get a chance to ask a final question. I wanted to follow up my colleague, Mr. Godfrey, about genetics. Suppose a citizen has life insurance and this person dies of cancer and in the next 10 or 15 years science proves that cancer is genetic.
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This person who died has a son or daughter who wants to buy life insurance from XYZ life insurance company. The life insurance company knows the father or mother of this person died of cancer, which happened to be proven 10 or 15 years down the road to be a genetic disease. This person who is buying insurance did not give the insurance company the right to check into his genes. How would you protect this person's privacy under the circumstances that exist now? Did I make myself clear?
The Chair: I think the small people of this country are asking that question because dwarfism is highly identifiable on the genetic chromosome. Perhaps you might elaborate on that, because we heard quite a bit about that from the 20th anniversary celebration we were at.
Mr. Phillips: Mr. Assadourian, let me see whether I understand your question correctly. Are you arguing that the insurer is entitled to this kind of information when writing a policy? Is that it?
Mr. Assadourian: No, what I'm saying is - I'll give you an example about myself. Suppose I have life insurance. I pay a premium every month, like every other customer, and I pass away and die because of a cancer disease. My sons and daughters, 10 to 15 years down the road, decide to buy insurance from the same company I had used. The insurance company says okay, your name is Assadourian, we have it on record here that your father died of cancer and now we know cancer is a disease that comes in your genes. There's nothing we can do, there's nothing anybody can do. We refuse to give you life insurance because your father 20 years ago died of cancer. Now, this person buying insurance didn't give the insurance company the right to go into his genes. How would you explain that? How would you justify the refusal of the insurance company, using his ancestor's genes, to deny insurance?
Mr. Phillips: I don't deny the troubling and complex nature of that question, I really don't. I heard a very interesting lecture from Dr. Knoppers, who you ought to have come and address you on this subject. She's a law professor at the University of Montreal.
The relationship of insurance companies to medical information: it is argued that DNA information, genetic information, in any case has been gathered by insurance companies for a long time by asking about the history of illnesses in the family and that kind of thing. This is, from an insurance point of view, merely a more precise method of doing the same thing.
Mr. Assadourian: But that's for that person himself.
Mr. Phillips: Yes. If insurance companies make it a condition of issuing a policy to have genetic information available to them on the basis of testing, I am concerned that large numbers of people may be disqualified from obtaining insurance who are now able to obtain it. This issue has to be faced. It seems inevitable to me that insurance companies will say - Once genetics become a sufficiently precise science so that it can be said with absolute certainty a particular gene will produce unfailingly a particular disease, it will become very difficult to resist the pressure to make that information available as a condition for obtaining insurance. Under those circumstances, it may well be that large numbers of people will then find it extremely difficult to get insurance.
That is a subject well worth discussing. I do not have an answer for that, Mr. Assadourian, I really don't. We've thought a lot about it. If an industry that has become such an important part of the whole fabric of our personal security system such as the insurance industry undergoes a revolution in the way in which it's calculating risk with a possible serious impact upon the established norms of the industry, we're all going to have to think about that. In those circumstances, would the government have to take a more active role in insuring people? I don't know.
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At a minimum, it seems to me it ought not to be right to make decisions about insurability based on some aspects of genetic information that suggest but do not definitely establish a possible predisposition to a particular kind of ailment. Some elements of genetic science now are very precise. If you have a particular gene, you are going to get certain kinds of diseases, we know that now: sickle-cell anaemia, I think, Huntington's, and a couple of others. I guess as the human genome project goes along, more and more of those things are going to be identified.
But there's also this whole body of genetic science which suggests a person with a particular gene might develop a particular ailment or a particular characteristic. Those things are subject to a lot of other influences as well, such as the environment and the kind of upbringing people have and the diet and that sort of thing. It does seem to me it would be terribly unfair if that kind of information ever got taken into account in the basis for deciding insurability.
This is a very complex subject. Even the most careful examinations of the subject by eminent students of the law have really not come up with a definite answer to that, so I certainly wouldn't intend to offer one myself. You raise a good issue, and it's one this committee might want to get a couple of people to come to talk about.
The Chair: I listened to the news yesterday about the decision in the United States on liver transplants. If you're going to make a determination on who has the right, under certain terms and conditions, for a liver transplant and your child gets, as an adult, after your dad or mom have had a liver transplant - Is that going to have an impact? The insurers and the medical health and your records are all going to show this. Is this going to be prejudicial? Is this inherent?
Anyway, the whole thing touches our deepest and most intimate forms of life and our own human persona.
I think you had
[Translation]
one last short question, Mr. Bernier, because I would like to end our meeting soon.
Mr. Bernier: I'm not sure this will be a short one. We talked briefly about the Canadian Standards Association and what it does to protect privacy. You expressed your opinion on the part played by the CSA more than once. Of course, you promote the importance or the need for government to legislate the protection of privacy in the private sector.
As Privacy Commissioner, what kind of relationship do you have with the private sector? Can you tell us whether the private sector thinks the government needs to legislate or to refrain from legislating this field?
[English]
Mr. Phillips: I do have ongoing conversations with people in the private sector. Many organizations have come to us for our unofficial staff view of the privacy codes they are developing. For example, we did a lot of work with the Canadian Bankers Association in developing their model code. We did have a representative on the committee working with the Canadian Standards Association to develop their code. We have worked with the Canadian Direct Marketing Association. Many individual businesses have come to us. In each case we try to discuss with them the relationship between their business and business practices and the privacy question and give them advice. I'm glad they do that.
Mind you, they're not obliged to accept anything we have to say. But I think these days it's an intelligent business that takes account of the rising public interest in this matter and tries to get some advice.
What does the private sector feel generally about a legislated answer? I can give you only a partial answer to that, Mr. Bernier.
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The Canadian Direct Marketing Association, which represents 75% or thereabouts of the businesses in Canada involved in direct marketing, such as catalogue sales and some forms of telemarketing, is a strong proponent of legislation covering the private sector. They're in favour. It's an interesting case study.
The direct marketers, of course, are people whose work is seen almost every day by the ordinary consumer because we all have a mailbox. So perhaps we know a lot more about direct marketing than we do about a lot of other business practices involving personal information, practices that may be far more serious.
The direct marketers, realizing that there was growing public concern about the amount of unsolicited promotional work to which they were being exposed, developed their own privacy code. They have found, though, that living with the privacy code is not as easy as they thought, because some of their competitors who aren't interested in living with privacy rules are getting the advantage of them. So they feel there should be a general privacy law that applies to everybody. But I think that at this stage of the game, they're more the exception than the generality.
I think that most businesses would just as soon be allowed to go on doing what they're doing and not have to worry about yet one more statute they have to live with. I guess that probably the strongest opponents would be found in the financial sector. You may draw your own conclusions as to why that is so.
At the same time, I have to say that I think there is a general sense - and it's growing - in the private sector that this is coming. Business being businesses, with practical men and women running them, they'll say if it's another law, they'll live with it and they'll get by.
I think they've also been encouraged a little bit by the experience in Quebec. I don't want to repeat what I said here in June, but there was a big lobby in Quebec when that bill was in front of the Quebec legislative committee, and they freely predicted that the business world was about to come crashing down in ruins if they had to live with yet one more piece of provincial legislation. I think if you asked them today, they would all say those fears were greatly exaggerated, if not entirely misplaced.
I think the resistance in the business world, at least partly - but only partly - is just the ordinary reflex of the business person who says ``Just a minute, enough is enough.'' But in my view there are also other less admirable motives. I think some of them would be just as happy if the general public was not aware of what is being done with personal information. And that's as far as I'm going with that one.
The Chair: I think what's being said here is ``enough is enough, get out of my face and get out of my place''. But I guess you pointed out to us the seminal phrase, ``the right to be let alone'', which was enunciated by Louis Brandeis, right?
Mr. Phillips: Right.
The Chair: Mr. Phillips, I think you're going to have made the work of our research staff - I'd like to note their presence: Susan Alter, Bill Young, Nancy Holmes, and the clerk of the committee, Wayne Cole.
The information you have brought to us in a most enlightened way is, I hope, certainly going to help with the writing up and the finding of some kind of consensus out there. I outlined at the beginning just how far is far enough in a valued society like Canada. I'm glad you're going to provide us with some additional research background material.
We're undertaking this because you have always been a very good communicator and you continue to be. I just wish that we could find enough people like the docents, the good docents who train us, take us around and teach us how to look in a museum and see what the world was like, what the mores were like and what the values were. We could send them out across this land to help people understand that we live in a very precious space in a very precious place and that it's worth protecting.
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I thank you very much for sharing all this information with us. I hope you'll find that the other witnesses who come before us before we start out on the road will add to the information, and I hope we'll come up with something you will be proud of, because you really were at its birth.
Ladies and gentlemen, I call the meeting to a close.