EXTRACTS FROM HANSARD -- PROCEEDINGS OF CANADA'S SENATE :

Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 59
Tuesday, May 30, 2000
The Honourable Gildas L. Molgat, Speaker



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Privacy Commissioner
Received in Committee of the Whole

The Senate in Committee of the Whole in order to receive the Privacy Commissioner, Mr. Bruce Phillips, for the purpose of discussing the work of this office.

The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Rose-Marie Losier-Cool in the Chair.

The Chairman: Honourable senators, before hearing the witness in Committee of the Whole, allow me to draw your attention to rule 83, which states, and I quote:


When the Senate is put into Committee of the Whole every Senator shall sit in the place assigned to that Senator. A Senator who desires to speak shall rise and address the Chair.


The last time Canada's Privacy Commissioner appeared before the Committee of the Whole, it was decided to dispense with this rule. Is it your pleasure, honourable senators, to dispense with rule 83?

Hon. Senators: Agreed.

Senator Hays: Honourable senators, I move that Mr. Bruce Phillips, Privacy Commissioner, be escorted to a seat in the chamber.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed. The Chairman: On behalf of all senators, I welcome Mr. Phillips, Canada's Privacy Commissioner.

Mr. Phillips, do you have an opening statement?

Mr. Bruce Phillips, Privacy Commissioner: Honourable senators, thank you very much for having me back. I think the most enjoyable thing I have done since I took on this job was coming to a session of the Committee of the Whole Senate about a year and a half ago. I am not trying to flatter you; I mean it. It is kind of fun to come to a committee where people are actually talking to the witness instead of to each other most of the time. That is no reflection on any other place.

Second, this may well be my valedictory to the Senate since, unless some miracle intervenes, I will be packing my bags in a few months to take retirement. Well deserved? Well, some other people will have to decide that.

Last year, I gave you, at the outset of my presentation, a 10-minute disposition on the philosophy and ethics of privacy. I do not propose to repeat it in any great detail. I want to remind you of one or two basic points.

First, with respect to my position, for those of you who may not have been here last year or heard me speak on other occasions, the Office of the Privacy Commissioner is one of a very few number of offices in the entire federal establishment that exists and requires a vote of approval for the nominee by both Houses of Parliament. The reason for that is to certify their independence of any particular government department or agency since all of us are involved in matters that require an arm's-length relationship. Some others are the Information Commissioner, the Chief Electoral Officer and the Auditor General. It is a wonderful position to occupy because it keeps the incumbent focused on the issue that he or she is there to serve. There is no other consideration in a good commissioner's mind than serving that issue and protecting the credibility and the independence of the office.

The issue of privacy is frequently misunderstood. People think it is essentially denoting "a means of hiding things." Privacy is not the business of hiding things. Privacy is a shorthand word that covers a very complex and comprehensive set of rights which touch almost every aspect of human life. If you think of privacy in the context of being able to control matters concerning yourself and what it is that you wish the world to know about you, you begin to come closer to the notion of privacy.

Privacy has its origins in the very beginning mists of human history. The ancient British notion of a man's home being his castle - now a person's home being his or her castle - very much expresses the idea. If you really respect someone, you will grant that person a right to privacy. If that person respects you, that person will give you a right to your privacy. Supreme Court Justice Gerard La Forest expressed it best when he said, "Privacy is the concept that lies at the heart of freedom." I think that is right. "Privacy" is just another word for freedom.

I will quickly review some of the issues that arose during the past year. Quite apart from one or two more recent events, we have had an extraordinary year in this field. The most important development in the privacy field in the last 15 or 20 years in this country occurred in the course of last year, partly and significantly due to this particular chamber. I am referring toBill C-6, the Protection of Personal Information and Electronic Documents Act.

The genesis of Bill C-6 goes back some distance to the publication of privacy guidelines by the Organization for Economic Co-operation and Development, issued roughly20 years ago, which set forth principles for government to govern themselves by in the collection, use and disclosure of people's personal data.

The privacy guidelines were accepted by the Government of Canada. Departments of the government were urged to follow them, as was the private sector. The government had more success with the public sector than it did with the private sector, which largely ignored them. However, the government acted by passing the Privacy Act that has governed, for many years, the collection, use, disclosure and retention of information by the Government of Canada.

The private sector, with the advantages of modern technology, was leaping ahead with ever more massive collections and use of data. It essentially became an informational jungle, where there were no rules. All of the jaw-boning and arm-twisting that was attempted by people such as myself had very little effect. Some institutions - notably financial - responded by passing voluntary codes of privacy practice, which helped, but only a little.

The Canadian Direct Marketing Association and others were, I think, outstanding in the field of policing their activities during that period. However, it became evident three or four years ago that if businesses were to continue to enjoy the confidence and trust of the clientele and consumers of Canada, something more had to be done.

Another compelling reason was the adoption by the European Community several years ago of a common data protection set of principles that were applicable to all states of the European Community. That set of principles essentially authorized them to withhold data transfers to states where, in their view, adequate data protection did not exist. At that stage of the game, Canada certainly was one of those countries.

Partly in an effort to defend Canada's trade abroad and to guarantee continuing rational data flows from country to country, and partly because of the increasing clamour in Canada, Bill C-6 was born.

Those honourable senators who were not directly involved at the legislative end of the process must realize that Bill C-6 was not an easy exercise. It was strenuously opposed - sometimes publicly, while on other occasions not so publicly - by many special interests groups. I must say, in as non-partisan a way as possible, that it took a good deal of resolve on the part of the government of the day, with the help, I am sure, of people on all sides, to ensure that Bill C-6 came to pass. It will become law at the end of the year. Three years hence, unless the provinces act in conformity with the principles in Bill C-6, it will cover provincial informational traffic, as well as that which now falls under the jurisdiction of the Parliament of Canada. That is almost akin to a revolution. Canada is the only country in North America that has such a comprehensive statute covering the private sector.

There are continuing issues, such as the problems in respect of the social insurance number. We are aware of the opinion of the Auditor General on that issue. In spite of the efforts to fix the issue, the underlying problem of the social insurance number has not been addressed. When the social insurance number became a card to certify eligibility for certain government programs in the 1960s - I was present in the galleries listening to those debates - fears were expressed that the card would be used as an everyday working identification card. Qualified assurances were given that such a thing could not happen, but it did. Everyone now knows that you can hardly get on a bus and go to a store without your social insurance number.

The problem is that the government has never stipulated in law that it would be unlawful to demand the production of that card for other than specified uses. Although I believe that was recommended again during the course of the last study, it has not been acted upon. As a consequence, the social insurance number will continue to be as much a nuisance as a help to us.

I am aware that the Senate is seized of the whole debate about privacy and its relationship to health information. That is probably the next privacy battleground, although I can think of one or two others that we might discuss this afternoon.

We, in our office, are baffled, to a certain extent, by the health privacy debate. That is largely because of the immensity of the volume of information involved, and the very large number of players that are in the field, both in the public and private sectors. We must candidly admit that we do not know how all of this information is managed. We have much anecdotal evidence and information from a variety of sources. Many doctors tell us that they are terribly concerned because they feel that the historic, Hippocratic oath-bound principles of patient-doctor confidentiality are no longer alive because the information is now used by too many hands for payment purposes, verification purposes, government studies and so on. Even the doctors cannot tell you with any assurance where all of the information is used.

The first problem in dealing with the health information issue is to find out where it originates, who has it, and where it goes. The committee of the senate that proposes to study this issue will be pioneering in this field. I believe that if, as some people advocate, health information is to be treated by a separate statute, other than Bill C-6, the kind of thing that you are about to do is absolutely sine qua non - a prerequisite - to that exercise. We will be as interested as anyone else in the evidence that is given to that committee.

I do not know whether to venture into the minefield of the census data now or later. It arose at our meeting one year ago and continues to be a concern of mine. I was treated gently by the Senate, much more gently than I was in other quarters, with respect to the census issue.

My first concern is with the confidentiality issue. No one has been able to satisfy me on this point in respect of census information. There are two regulations on the books covering the 1906 and 1911 censuses that state that census data shall be kept confidential and not used for any other purpose. There is a 1918 law on the books that states essentially the same thing. Information printed on each of the millions of census forms distributed to the Canadian public states that they are enjoined to fill out the form, no matter how intrusive they might feel it is, under pain of the penalty of the law. However, that form also provides an unqualified guarantee of secrecy and confidentiality.

The case could be presented by someone - and I have never disputed the legitimate interest of historians and genealogists in this type of information, although I may feel differently about their right to it - to get rid of that guarantee because the information is extremely valuable to them. What then becomes - and I do not speak alone because the Chief Statistician would say this more emphatically than I - of the confidence and the trust of the Canadian public in the given word of its elected government? If, having given all of this information with that undertaking clearly before it, the public is now told, "Well, things have changed so retroactively that we will wipe out the information," then that raises an ethical question that must be addressed and answered by those people who would seek to set the information aside.
The question of the merits of the case for access by historians and genealogists is something else. I appeared before the expert panel that was appointed by the Minister of Industry to look into this question of what to do about census records in response to the strong representations that were made by the historical and genealogical committee. Whatever they may make about the confidentiality guarantee, I suggested to them that, if they still wish to recommend access to this census data, then surely a distinction must be drawn between census data and other types of personal information.

The long form on the Canadian census since 1971 is the single most comprehensive gathering of intimate personal data about Canadians ever conducted. It includes all kinds of information that people normally might be extremely sensitive about disclosing. I am talking about sex, sex preferences - which was asked in the latest one I saw - family histories, income and lifestyle. There is an enormous amount of data on that census.

It is no longer simply a census of the population. It is a socio-economic study of the most comprehensive kind. No one would fail to understand why that would be of interest to historians and academics.

My point, therefore, is that if they are to make more census data public, surely it must be restricted to census data, that is, a count of the population, name, address, and so on, as is contained in the earlier censuses. That distinction has yet to be drawn. I did not hear it made at the expert panel on this subject. It is possibly the beginnings of a compromise answer to this problem.

I would now defer to honourable senators.

If the honourable senator from Fredericton is here, I am sorry that I do not have your star pupil with me today. He is out of town giving a speech. I know you wanted to single him out because he is a very bright fellow.

I thank honourable senators.

Senator Lynch-Staunton: Welcome, Mr. Phillips. I am sorry to hear you say that this may be your farewell appearance. If it is, I wish you well. I thank you for the great efforts and commitment you have made to privacy, in an environment which is not the most easy, and where privacy is more and more difficult to secure. Your efforts are exemplary. I hope that your successor will carry on in the way that you have set up your office, and that is in favour of that important element in our society which is privacy.

You made reference to the census, a subject on which I wished to focus my questions. However, I think you have already expressed your views on that subject.

"Common law" refers to two people of the opposite sex or of the same sex who live together as a couple but who are not legally married to each other. The final question which was published in the Canada Gazette is a little less direct. It states that "common law" refers to two people who live together as a couple but who are not legally married to each other. The definition may change, but the intent of the information sought is the same. First, this is the sort of information which I have difficulty in accepting as necessary in a census. Second, if the law is changed, it is information which may well be revealed in the years to come, and it is not information that many people answering that question would want revealed.

The other question which I find very intrusive is Question No. 51, which asks for a detailed report on income, employment, government income, other income, dividends, and so forth. The explanation given for that question is that, while most Canadians file income tax returns, many Canadians do not, so this is to supplement the information that the Department of Revenue does not have available. When we file our income tax returns, whether we send then electronically or by mail, we like to think that they go directly to the person to whom they are intended. However, this information is not guaranteed to have the confidentiality it deserves.

You have pointed out in your report on the challenge to privacy that in rural areas in particular the enumerators are friends and neighbours of the persons who are given the long form to fill out, and they have been responsible thus far in checking the answers to ensure, not that they are accurate, but that they have been answered. In many cases, therefore, neighbours and friends who are enumerators have available to them what the individual who filled out the form has felt has been confidential all along, but within a week his neighbour has secured this information. You do say in your report that there have been attempts to bypass the local enumerator, but that, so far, those efforts have not proven to be foolproof.

After that introduction, sir, my question is twofold. First, do you believe that some of the information asked for in the census is of value to the census takers? Second, what advice would you offer the government in order to guarantee as much as possible the confidentiality of the census information?

By the way, the common law question also applies in the short form. All Canadians have to answer that question, not only those who answer the questions on the long form.

Mr. Phillips: By "census taker" do you mean the canvasser or Statistics Canada?

Senator Lynch-Staunton: The canvasser, the person who delivers the form and to whom it is returned.

Senator Finestone: They are obliged to do that.

Senator Lynch-Staunton: If you fill out the long form, you must give it to someone. That person has to check that the questions have been answered. That person may be your next-door neighbour.

Senator Finestone: I do not disagree with you, senator. I am saying it is an obligation under the law.

Senator Hays: Perhaps we might hear from Mr. Phillips.

Mr. Phillips: That is a process question, honourable senators. We have received a substantial number of complaints on that very point concerning the census and the fact that, in the verification of the filling out of the forms, neighbours and friends frequently become involved, particularly in small communities. People get very upset by that, which I think attests to the sensitivity of the information. People are not nearly so upset if they feel that it is going to a secure place in Ottawa, which is behind very carefully guarded doors. We have taken that up with Statistics Canada. They responded by putting in place, on an experimental basis, a process by which the form could circumvent the local verification process and go directly to Ottawa. However, my recollection is that they did not like the results. I think the reason was that it was too cumbersome and too slow. It has been discontinued, and they are now trying out something else.

I will say on behalf of Statistics Canada that at least they are aware of this problem and are trying to fix it. Thus far, they have not been able to do so.

The issue of the intrusiveness of questions is not something I can answer with anything more than a personal opinion. There is no doubt that the questions are intrusive. Of course, any disclosure of personal information to a government institution that is compulsory is intrusive - no matter what the information. This tends to be of an extremely intimate nature. You have just read off some of the questions, senator.

The Statistics Canada people have a very complicated process for deciding what goes on to the census form. They have a number of advisory committees, educational, socio-economic, medical and so on, composed of people from both the public and private sector who submit to Statistics Canada a list of questions or issues which they think are of sufficient importance as to warrant inclusion in a census. Those are all mulled over, over a number of years, and finally they find their way on to the census form.

Senator Murray: Who must Statistics Canada convince at the end of the day that the information they are seeking from individual citizens is absolutely required for the purposes of the governance of the country as distinct from the purposes of the academy? Do they have to convince the cabinet?

Mr. Phillips: Yes, that is right. Once Statistics Canada has compiled its list of questions and developed its census form, that is submitted to cabinet for approval.

Senator Murray: What do you have to say about it? Does the Privacy Commissioner have the opportunity to say, "This is really not needed for the purposes of governance; it may be interesting for the academy, but it is not needed for the census"?

Mr. Phillips: No, the Privacy Commissioner is not consulted on the questions that are to be included on the form. Quite frankly, senator, I am not sure that the Privacy Commissioner should have such a role. Statistics Canada, which does that operation on behalf of a great many interests, has the responsibility of justifying its questions, and I think they have to be justified to persons other than myself.

Senator Murray: Who weighs in on behalf of privacy when the draft questionnaire is placed before the cabinet? Is there anyone who says "no" to a particular question?

Mr. Phillips: No one from my office. Senator Milne: Mr. Phillips, I want to talk about the historic census, not today's census.

For the past 100 years, there has been a balance in Canada between a right to privacy and a right to use personal information for historical research. Of course, you have anticipated that I would ask you this question. You have also written quite a section in your report about the historic census records. I have read your presentation to the expert panel.

I am fairly certain that your position, and the position you have taken in your report, is based on an opinion by lawyers of the Department of Justice that is, I believe, fundamentally flawed. Statistics Canada requested this opinion. It is too bad that the lawyers were in such a hurry. If they had just read a few pages further on, or even a few lines further on, they would have found in the 1906 instructions that the census takers were directed to write clearly because the census was intended to form a permanent record to be held in the archives of the Dominion. At that time, everything that was held in the archives was open to the public. It was quite clear that the lawmakers of that time and the legislatures of that time intended that to be a permanent, eventually public record. The implicit intent was that the census would eventually be open to the public.

This balance between a right to privacy and a right to historic census data was debated again in the 1980s and reaffirmed in a modern context with the passage of access to information and privacy legislation. Speaking of privacy legislation, I thank you for your words about Bill C-6, because my committee dealt with that bill.

Why is there now such an urgent need to overturn this long-established, equitable and historic balance? What you are actually doing is retroactively seeking to overturn the stated intentions of the legislatures at that time. After 100 years, the defence of privacy rights is suddenly paramount and overriding the legitimate and intended use of personal information for research purposes.

Do you want to answer that question before I ask my second question?

Mr. Phillips: I might as well get the whole blast.

Senator Milne: I am being nice.

Why do you not accept the logic of the passage of three interrelated pieces of legislation - the Privacy Act, the Access to Information Act and the National Archives Act of Canada - as well as the formal interpretation of the European Parliament, whose tough privacy provisions were what generated the push to pass Bill C-6 in Canada? The archival retention of government records, whether they contain personal information or not, and their use for historical and statistical research is a use consistent with the purpose for which the material was originally collected and therefore does not require additional consent. Otherwise, why would the government have archives at all for its own records?

The Chairman: I wish to remind senators that, at the beginning, we passed a motion to waive rule 83, but we did not waive rule 84, which states that a senator should not ask a question for a longer time than 10 minutes. You also have the chance to ask a second question. You may ask many questions, but one question may not be more than 10 minutes in length.

Please, Mr. Phillips, perhaps you could respond to Senator Milne.

Senator Milne, you will have a chance to ask another question.

Mr. Phillips: Perhaps when we have lunch, senator. You have asked a number of questions, and it will take me quite a while to deal with all of them.

As a consequence, what do I make of the current Statistics Act, which states:


17.(1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12...

(a) no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act;

(b) no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained...


I am sure you read that.

You have also, I am sure, read the language contained in the last census guide, which states that the confidentiality of your census form is protected by law. All Statistics Canada staff take an oath of secrecy and only employees who work with census data see your form. Your personal census information cannot be given to anyone outside Statistics Canada - not the police, not another government department, not another person. This is your right. Every Canadian gets that guarantee with the census form.

With the current Statistics Act and that guarantee, plus the information that was contained in the regulations of 1906 and 1911 and the amendment in 1918, I can look at that as a layman. Senator, I was not guided in my interpretation of this matter by the opinions of the Department of Justice but by our own lay view of it, and the information and advice we received from our own legal staff. I do not think we want to get ourselves involved in that kind of debate anyway. I think we have to debate this issue on more philosophic and ethical grounds.

Let me put it to you this way: If I have lunch with you next week, ask you all of the questions that are on that form and tell you that I want to write a book about you, I think you would say, "Just a minute." The argument, and I think there would be general agreement on this point, is that the modern census asks for so much intimate information that any disclosure in the near term should be absolutely prohibited. The argument, therefore, turns on whether there is any privacy right with the passage of time or whether it diminishes and finally is extinguished altogether.

Senator Milne: You agreed with that last year.

Mr. Phillips: I think I have to agree with the fact that the right to privacy might diminish to a certain extent. I do not have any objection personally to a lot of my information being divulged after I am dead, but I can only speak for myself. The real element of respect for privacy is choice and individual decision.

For any particular interest group to express and assert a right to my information is something that causes me great difficulty now, and will continue to cause me difficulty until I breathe my last breath. I may well make provision for the disposal of my personal information after my death, and I should like to have respected. Some of that information might be contained in a census.

The question here is whether academics and historians, who have a special interest in this matter, have a special right to override my rights to protect the privacy and confidentiality of my papers. I have difficulty answering that question, and it is one that must be asked.

I feel a little differently about genealogists than I do about historians. There is a family interest frequently with real-time living consequences if people are unable to obtain genealogical information about their family backgrounds. It is not unreasonable to make adequate provision to take care of that problem.

I have the greatest respect, senator, for Canadian historians and Canadian academics. I read many of them. However, I do not think that they are on very good ethical ground if they are saying that, because it is there, they have a right to it, no matter what its value may be.

Journalists could make the same claim. They have a perfect right under a free press to gather what information they can, a constitutional right. However, there is nothing in the Constitution that transgresses or abrogates my right to say to a journalist, "No, I am not giving it to you," and "You cannot have it."

How will we make these distinctions between a person who describes himself or herself as an historian or a journalist, who may write for quarterly magazines, and who indicates that their work may be historical in nature as well? There is a real problem here on the issue of personal privacy rights and whether historians are a special group of people who should be allowed to set those rights aside.

I concede that the question of time is the basis of a good debate. Ninety-two years is the present allocation. I have looked at some of those early census forms and I do not think many people would object to that kind of data being made available for research purposes. However, let us fast-forward to 1971 and all the questions that are on that census form. I think many people would say that living, dead or otherwise, they do not want that information to be given out. We must also start considering that issue.

Some issues deserve a thorough public debate, and I am trying not to be dogmatic about this, but rather to make the best case I can.

Senator Milne: I believe there has never been a complaint about the release of historic census data. As far as I have been able to discover in my search and from the search done by others of the Canadian, British and American records - and over the last 92 years that adds up to about 160 million people - there has never been one complaint in any one of the three countries.

At present, in Newfoundland, the 1945 census information is available to the public and there have been no complaints whatsoever. Thus, I have some problems with lengthening the period of time. I think that 92 years is a perfectly reasonable and historically valid period of time in Canada. On the one hand, census data is time sensitive. On the other hand, if we were to be bound by the wishes of the dead, we would all be carrying stones up pyramids for some long dead pharaoh.

Mr. Phillips: Until somebody invented a better machine.

I understand what you say. However, there must be some more examination of these issues. That is the best case I can make.

It is not for me to ask questions here, so I will try to make my point otherwise. I ask myself:


What is the point of writing a will in which I wish to make some disposition of my personal papers when half of the information is being let out anyway? Is there a complete extinction of a person's rights to privacy because of death?


I think not; otherwise, we would not bother writing wills.

Senator Milne: Am I correct that the provisions of a will extend 25 years after death?

Mr. Phillips: The Privacy Act stipulates that information cannot be disclosed for 20 years after the death of a person. If I were drafting the bill, I would have changed that provision.

Senator Carstairs: Mr. Phillips, I should like to address a slightly different area. You mentioned the social insurance number. My sense is that people feel intimidated and do not want to provide information that they do not have to give, but they do because they feel a certain pressure to submit that information. I will give you an example.

Standing in line at Canadian Tire, I was among a group of people, all passing in their Visas or alternate credit cards, and underneath the line provided for their signature was another space where they were to provide their telephone number. Six people in the line all provided their phone numbers, but I refused to provide that information and, to be fair, the clerk did not question me when I did not fill in that space. Canadians feel that they must give information if it is requested. How do you deal with that as an issue?

Mr. Phillips: That is a very good point. The only way you can deal with that, senator, is to educate the public about the hazards involved in voluntarily giving out personal information. Companies will ordinarily ask for more information than is ever required to do a transaction because they want it for their files for marketing purposes. If you decline to give it, 99 times out of 100, it will make no difference to them. They will transact the business in any event. However, if you wish to provide the information, many inducements are offered, inducements such as lowered premiums. In a sense, they are offering to pay you, or at least give you a chance to get something for nothing.

The interest of Canadians in knowing what happens to their information is growing. I think recent events have probably demonstrated that more clearly than anything else to which I could point.

I do not want to reopen a discussion about the census here, but if people do not know - and if they are dead it is hard to know - then you will not get many complaints. That is why many institutions and companies do not make a point of telling the public what they are doing with the information.

We are now reaching a new age. Bill C-6 will see to that. Companies will have to disclose their informational practices. That is the way to develop a civilized relationship. You must have transparency so that both sides know what is going on.

Senator Carstairs: Do you know of any educational programs, particularly in high schools or of any junior high programs which explain privacy rights to young people?

Mr. Phillips: Yes, I do. Currently, the Privacy Commissioner of Ontario is developing a program for distribution throughout the Ontario school system, primarily at the secondary and post-secondary levels, dealing with these consumer issues.

My office has never had a public education mandate. However, under Bill C-6, we will be given one. If we are given some reasonable funds to do it, which is always the next important question, we will be doing that kind of work.

Senator Kinsella: Building on this point, commissioner, at page 48 of your report you mentioned that, heretofore, the Commissioner has no legislative mandate to educate the public about information privacy rights. Are you satisfied that need will be responded to in the new regime?

Mr. Phillips: The answer to that question is both practical and theoretical. No privacy commissioner would ever be satisfied that enough funds were made available for that purpose because it is open-ended. That is to say, the more dollars you get, the more educational work you can do. If the question is whether will we have enough for it, well, it will not be of a Cadillac style. Our funding discussions are still going on and they will be ample, as far as I can see, for the introductory phases of Bill C-6. However, whether there will be enough left over for a serious public education mandate remains to be seen.

I have to grant the Treasury Board some slack here because it is very difficult at this stage of the game to know how much business Bill C-6 will generate by way of complaint investigations, audits, and so on, which can chew up resources in a great hurry. My hope is that the volume will not be great and that, in the beginning phases of Bill C-6, it will take a while to catch on so that we can get a good educational program going, but I just do not know.

Senator Kinsella: I should like to draw the attention of honourable senators to page 65 of your report, where you speak of the Longitudinal Labour Force File, which has been very much in the news this last little while. In the second paragraph, on page 65, you write:


Successive Privacy Commissioners have assured Canadians that there was no single federal government file, or profile about them. We were wrong...


When, commissioner, did your office come to the conclusion that you were wrong about that and there was a single government file on Canadians?

Mr. Phillips: I will try to give you the short history of the Longitudinal Labour Force File and our involvement. First, you must understand that we have limited audit resources. I had four people available at that time, in 1997. Given the colossal size of HRDC, and because it was responsible for supervising so many programs and originating programs that dealt with the personal lives of Canadians, we wanted to have a look at their personal information holdings and the management thereof. I wrote to the then deputy minister and asked if, rather than invoking our formal audit authority, a team could come over and do a thorough sit-down review of all their databases to see what was in them and what was happening.

I had 100 per cent cooperation in that review. I want to make that clear. In the course of going over all these holdings, we encountered the Longitudinal Labour Force File. We asked what it was and they told us. My staff examined it and had some questions about it.

Senator Kinsella: When was that?

Mr. Phillips: It would have been in 1998 that we responded formally to the department, saying that we were very concerned about the Longitudinal Labour Force File.

Senator Kinsella: When was the first time that Canadians were made aware of the existence of a single file?

Mr. Phillips: In the broad sense of the general public at large knowing about it, this would have occurred as a consequence of this year's annual report. When we encountered the Longitudinal Labour Force File, we then engaged in a conversation back and forth, over the ensuing two years, in an effort to redress what I thought were serious problems. Having failed to get it done that way, I felt it was necessary, at that stage of the game, to inform Parliament.

The duty of the commissioner is to inform Parliament about significant developments in information management by the government. That is why it is there.

Senator Kinsella: Maybe other senators will be pursuing this matter.

Senator Bolduc: Mr. Phillips, today we heard Minister Stewart say that she was dismantling the file. Are you satisfied with the minister's decision, or are there still problems bothering you?

Mr. Phillips: I am not just satisfied with the minister's decision; I am delighted by it. I say this on behalf of Minister Stewart. In so doing, I realize that I may be treading into places I ought not to go, but it has been my experience from past dealings with this particular minister on privacy issues that when she has been fully informed and on top of the case, she has responded very quickly. The protocol they presented to me last week for discussions could not have been much improved upon if I had written it myself. It contains the ingredients for the proper management of data in a way that allows for transparency in public reporting so that people know what is going on. It has put in place a proper process for conducting research projects by which, first, you define the project and identify the information necessary for its completion, and then you go out and get the information. Second, it subjects all those research projects to a proper process of review by qualified experts, and it involves the Office of the Privacy Commissioner in a monitoring capacity. Third, the minister has agreed that the legal framework surrounding database usage needs to be improved and has obtained the concurrence of the Minister of Justice. I expect that will be addressed. That is one of the things we have been pressing for.

There are a couple of other issues there. An advisory committee will be established - not a review committee, which might have been a little better - and my office will be a member of that committee, which will look at data-based management in the department. Those are all things that were not present in the database as it was constructed originally.

Essentially, what we had there was an ever-growing mountain, lake, ocean - you name it. It was "ever-growing" because they kept dumping in more and more personal information for no defined purpose except "research," which is a fairly elastic term. It stood the whole process on its head. First, we will get all this information; then we will all sit around and think of a way to use it. That was bad to begin with.

I have no doubt that the people who did this were well motivated. I do not have any problem there. As one of my staff said, doubtless those people thought they were doing the right thing, but were they asking the right questions? Yes, the minister was quite right when she said in her earlier responses that the database did comply with the strict letter of the Privacy Act. However, it did not, in my opinion, comply with the spirit of the act as expressed by the guiding principles that are at the forefront of that act, which are, as far as this database is concerned, that you do not use information for unrelated purposes without the consent of the person from whom you received it in the first place. You do not disclose it without the consent of the person from whom you received it. Those are the rock-bottom principles of respect for people's privacy rights. This database did not comply.

There are extremists in my office, and we recognize - and so does the Privacy Act - that there are occasions when governments, for good reasons, must collect information or use it or disclose it without getting consent. However, constructing a database of this nature for such a vaguely defined purpose did not comply with the spirit of the act. It met the test of the law, but when you are dealing with a rights issue, more than a lawyer's view of the law matters. There are essential questions: What is the right thing to do? Does this reflect the spirit and the ethics as well as the letter of the law?

Senator Bolduc: Are you confident that the message is clear that the information contained in our tax returns will remain with the Department of Revenue?

Mr. Phillips: No, I cannot give you that guarantee. I can tell you that the income tax information that was contained in that database was, in fact, returned to Revenue Canada. That is because my staff was there to see that done. It is now back with Revenue Canada. That is not to say that Revenue Canada will not, at some future time, share it with somebody else.

There is a common misconception among the public at large that information given to Revenue Canada goes there, stops there, and goes nowhere else. That is quite wrong. Revenue Canada has hundreds of information-sharing agreements with other departments of government and other governments, both domestic and foreign, for the sharing of income tax information. Let us not all panic about that. Some of this is necessary sharing.

Senator Bolduc: I can understand that process when it is between revenue departments. It is reasonable. The federal service is doing its job. However, I was scandalized when I heard that our tax reform information was going outside of that department. I have been in the civil service for 35 years.

Mr. Phillips: There is one point I want to make about all of this. The essential element of transparency was absent here, and it is also absent with respect to Revenue Canada's information-sharing agreements. I think it is high time that a lot more attention be paid to informing the public about what the government is doing. The more the public knows, the less alarmed the public will be.

There has been an extraordinary reaction to this labour force file. However, I think there should be a much better educated public about the necessity and uses of information, and by and large the very responsible way in which it is handled. If that information were out, and if the government made a point of regularly informing the public, we would not have the kinds of responses that we got with this issue. We might not have the labour force file, to be sure, but trust and confidence depends on knowing what is happening. That is the bottom line.

Senator Andreychuk: Perhaps I could follow up in that area. A number of bills on taxation about the sharing of information with other countries have come through the Senate. It was a surprise to us to find out that, when we sign a tax agreement with another country, Revenue Canada, and its predecessor, would assess whether a certain tax system was viable and whether those other countries had processes and procedures of which we should be aware.

Does the Canadian public know that, when they work in another country where we have signed a tax agreement, their information will be processed by that government and that that Canadian will not have even the assurances, however minimal, we have in Canada? Have you looked at that area at all? It is a growing field because we are signing taxation agreements with a whole host of countries with which we did not anticipate signing such agreements.

Mr. Phillips: I regret to say that the answer to that, senator, is no. It is a darned good idea, and maybe sometime we will get around to it. We will certainly take note of what has been said here.

I must tell this committee that, early in my own time as a privacy commissioner, while considering the act and the very broad authorities that are given to the government for sharing information in a way that circumvents the basic principles of the act, I did try to get a handle on the scope of information sharing in the government. We circulated a questionnaire to all departments asking them to tell us the number of sharing agreements that they had, and the particulars of what they were sharing. I think it would be embarrassing to those departments if I were to drag that document out today because the return was, I knew on the face of it, "incomplete," using is the most generous word that occurs to me. I subsequently discovered that the reason for that was that they did not have a very good catalogue themselves.

Just two days ago I returned from a meeting of my provincial counterparts in Winnipeg. The subject of information sharing was on the agenda. They are all most anxious to see what kind of information sharing is being done between federal and provincial governments, for what purpose, and the details. I would include in that, senator, foreign governments. Yes, indeed, a lot of Canadian citizens' information does, I am sure, become involved in those transactions, and we should know about that.

I would like to return to the point I made a few moments ago. This is not to imply that there is necessarily anything wrong with any of this information sharing. On the contrary, I am sure most of it is necessary, and for the public's benefit. Nevertheless, I am not at all certain that the end users feel that they are under the same obligation as the Government of Canada of safeguarding the information and not misusing it. It is a field ripe for careful study.

Senator Hays: The long title of Bill C-6 is rather more helpful than its short title. The "Personal Information Protection and Electronic Documents Act" has the provision of not coming into force for a period of time. That time delay was extended by the Senate with respect to medical records with the hope that a consensus will develop and that there will be amendments to the act that will make it better in that respect.

Could I have your comment on how you see that playing out? Do you think a consensus will develop? What will happen if a consensus does not develop?

Mr. Phillips: As I understand the way that Bill C-6 was ultimately passed, all that has happened with respect to health information is that it has been exempted from the application of the bill for an additional year, beyond January 1, 2001. Unless something happens between January 1, 2001 and January 1, 2002, health information will be covered by this bill, no matter what else happens.

I expect that the Senate committee examining this will come up with some suggestions during the course of 2000-2001. We must wait to see where it goes from there.

There is a school of thought that says that health information should be looked at differently from all other kinds of personal information because it is sensitive. That is true, it is sensitive, but sensitivity is very much in the eye of the person to whom the information relates. Therefore, it is very difficult to make any kind of a case on those grounds. There may be a case on the grounds of the complexity of the health information field because there are so many players in it, both in the public and private sectors.

My own preference would be for medical information to be covered by a general privacy bill. I see no compelling case for why it should not be covered by such a bill, at this stage in any event.

We will just have to wait for the findings of the committee. Does that answer your request?

Senator Hays: That is helpful. A specific subject subset of that would be information on one's genetic code. There is a great potential to use that to determine future health prospects. There is a desire on the part of many to gather information in that area. The insurance industry, for the obvious reason of selecting lower risks or higher risks for different treatment, is quite interested.

Would you comment on how you see that playing out?

Mr. Phillips: I think the misuse of such information as DNA coding for possibly discriminatory decisions being made about the individuals concerned by such people as insurers and employers, you name it, has got to be dealt with in a statutory way. We certainly have to face that issue.

That issue is upon us now, because the human genome project is coming to completion much faster than expected. It will now be finished in a year, whereas the earlier projections were for several years to come. Unless there is a strict prohibition against the use of that information for determining a person's insurability or employment, and matters of that kind, it will happen. You can count on it.

A real problem of both law and ethics is now in front of our society. You have put your finger right on the issue.

Senator Hays: Do you feel good about what you expect will happen in Canada? Obviously, you have been advising the government on this issue and your expression of concern is heard here.

Are you optimistic that we will have something to deal with this problem in the near future?

Mr. Phillips: I would be more optimistic if a Senate committee put out a strong report saying we had better do something about it.

Senator Finestone: Mr. Phillips, I am delighted that you are here. I am sorry to learn that you might be leaving. Your rational arguments and your sensitivity to human issues were the impetus for a standing committee on human rights and the disabled to come up with a report. That report has been the backbone of a large amount of work that has been done on privacy rights.

On the issue of privacy rights, where do you stop? You have given rational arguments and you have been sensitive to all the issues that are in the newspapers every day. They are on the Internet every day, with convergence and with technology. I believe we are all very concerned. I am glad that my colleague, Senator Hays, asked you the question about Bill C-6. The human genome and surveillance technology fall into that. Bill C-6 refers to implied consent. It does not refer to informed consent. Are you comfortable with that still?

Mr. Phillips: Bill C-6 contains a number of ambiguities, senator, and we could spend much time going over them. I have never been personally happy with negative consents, implied consents, comprehensive consents in perpetuity of the kind that you find on credit applications, and so on. However, I try not to be an absolutist and I try to see each case on its merits. I try to find a formula for consent and other privacy issues that will suit the case and make it possible to continue to do business.

Bill C-6 is a new concept for Canadian business. It will not always be easy for them to put themselves in a position of compliance if the compliance involves major changes in long-standing ways of doing business and collecting customer information. I do not believe it was the intention of this Parliament, and certainly not the intention of this office, to behave in an impatient or arbitrary fashion that will force businesses to shut down and put people out of work. We must approach this issue with a good deal of care and give business adequate room and time to get itself into line.

I will, with your understanding, decline to get involved in a discussion of some of the minutia of Bill C-6. Our legal counsel, for example, confesses similarly to the point that the bill itself, given the unusual nature of the statute, is essentially a set of recommendations developed by a voluntary body. Those recommendations were simply taken holus-bolus and thrown into a statute, and laws are not often written that way. As a consequence, although the drafters of the act did try to make things a little clearer, there are still problems that require time and care. That is the best answer I can give.

Senator Finestone: It was important to note, in light of the rapidity of the change, that we cannot expect culture shock all in one shot. That is one of the things I have appreciated about your approach, which leads me to page 83 of the document. Mr. Commissioner, I notice with a degree of humility that you have mentioned a privacy rights charter, which I am hoping to bring into this house if I can ever finish the legal drafting and the translation. It has been almost a year of work.

I think a great deal about privacy rights these days. The census question demands personal information, and you believe - and I understand why you believe this - that we have made a contract with even those who are dead. Therefore, one cannot dishonour the dead. I agree with that.

How can we can dishonour the living so easily when we see 300 protocols signed by Revenue Canada with God knows who, and one's information is travelling all over the place? It is apparently okay for the census, and we should not explain and we should not interfere, but with my personal information and your personal information, Revenue Canada can go wherever it wants with 300 protocols. Do you not find that a little strange? We should keep you on in your position so that you could investigate that?

Mr. Phillips: I will do what Parliament tells me, senator.

Yes, I think that is a good point. There is an enormous amount of information moving back and forth. There is an enormous amount of information that must move back and forth. The government needs that information in order to do its business. The whole thing turns on the way this is done. Is it done in a way that respects the principle of the Privacy Act? The only exceptions that are invoked to that act are in the cases of absolute, overwhelming public necessity. One can make no other argument for abrogating people's rights. Merely having a group of middle-level managers, for example, say that it will be a good idea to do this is not, in my opinion, enough. We must buttress and fortify these information holdings with more clearly defined rules and a more rigorous process for overseeing what is done with that information. Minister Stewart's program that she brought forward the other day goes a long way to meeting those objectives. It could be a template, and I am anxious to see how it works out.

Senator Finestone: I hope that template is something you will want to put in the charter.

Mr. Phillips: I am glad you have drawn my attention to what I said about your charter in the report. In an effort to telescope my opening remarks, I overlooked mentioning that. That is a useful development because it cannot help but have the effect of increasing the profile of the issue and broadening public awareness.

I have been asked what is the main privacy problem in the country, and I would say it is ignorance. People simply do not know what is going on. They do not know their rights. If there are not a great many complaints, it is frequently because people do not know who to complain to or do not know what is happening and, as a consequence, cannot complain. Therefore, your charter has been a good piece of work and I was glad to have been a part of it.

Senator Stratton: Mr. Phillips, we shall miss you. I enjoy your presentations here each year. I am assuming you are gone, I am not certain of that fact.

I should like to talk about the Canadian Firearms Registry, if I may. A few years ago, sir, you made 40 recommendations pertaining to the Canadian Firearms Centre. Eight of those recommendations addressed potential privacy problems in forms that gun owners must fill out to obtain their licences. Have all these recommendations been addressed?

Mr. Phillips: I cannot answer that because we are doing an audit right now. Sufficient public interest and a sufficient number of complaints were received to warrant going over to the firearms centre and saying we would like to have a look at the management of their data in relationship to the Privacy Act before the thing gets up and running and too far down the road. If there are any problems there, we will try to fix them.

Senator Stratton: Are you in the process of doing that?

Mr. Phillips: Yes, and I will ask the staff to take note of your question and get you an answer as soon as possible.

Senator Stratton: I appreciate that.

There are 1,400 Canadians employed there now. How well do these people understand the privacy issues involved, or can you again not answer that question because of the audit process?

Mr. Phillips: That is right.

Senator Stratton: Finally, can gun owners access their personal file? If so, is this access governed by the Access to Information Act or the Privacy Act?

Mr. Phillips: If it is their personal information, it would be covered by the Privacy Act.

Senator Stratton: I believe I know the answer to this question, but can you guarantee that the information contained in those personal files will never be used or distributed elsewhere?

Mr. Phillips: I cannot give that guarantee. As I have said, Privacy Act rules do give government agencies a fair degree of latitude in using information for unrelated purposes. You need only look at the statute yourself.

Given the kinds of data involved, given the context in which the centre was created, given our ongoing interest in it and a number of other matters of that kind, I would expect staff to be particularly conscious of the sensitivity of the issue and to be very careful. However, that is only an expectation.

Senator Taylor: Mr. Phillips, it is my understanding that people can access information in the provincial tax base, and if there is any misunderstanding it can be cleared up. However, one cannot access the federal tax information. What should be done or what are you recommending?

Mr. Phillips: My view is that any information that comes into the possession of the Government of Canada of a personal nature comes under the purview of the Privacy Act, unless it is information obtained from a provincial government under guarantees of confidentiality to the originating source. That is what we are trying to sort out here. That is my view and not necessarily the view of everyone in the office.

Senator Taylor: My understanding is that the provincial government will let you look at your file to see if it is correct. If you ask the federal government, they will not let you look at your own file.

Mr. Phillips: That is the problem with this. Is the file itself a meld of both provincial and federal information? If it is, the government would have the responsibility of severing out the information it obtained on a confidential basis.

Senator Taylor: Is there any possibility, seeing so much of the interest in census records seems to be tied to health, of splitting the census form into - I do not know what it would be called - data that was releasable and data that should not be released?

That form is huge now. Why do you have to take the whole thing under secrecy? Why could you not allow the person filing to do one thing or the other, similar to donating one's organs? Instead, one would donate one's medical history.

Mr. Phillips: Senator, I have got this good privacy award here in my pocket and I have just found the person I would like to pin it on. In that question, you have just expressed the whole issue of privacy in the informational context, which is getting the consent of the person whose information is involved.

If, in filling out a census form, I could mark a little check-off box for the information I was prepared to have made public and the information I was not, and my wishes would be respected, that is the end of the issue.

In fact, with respect to the matter you just raised, there is a problem with the child disability issue. There is no consent involved in that transaction, quite apart from who has jurisdiction over the information. Section 7 of the Privacy Act states that information collected for one purpose will not be used for another purpose without the consent of the person concerned. Section 8 sets out a number of exemptions.

Senator Fairbairn: Welcome, Mr. Phillips. Our paths have crossed in interesting ways over the years.

I have been sitting here this afternoon with an increasingly sinking feeling. Since I came to this place 16 years ago, I have spent a great deal of my time working with and advocating for people with literacy problems and learning disabilities. As I listen to the questions and the answers, I am thinking of over 40 per cent of our adult citizens, maybe over 7 million adult Canadian citizens, who, right off the bat, are in an incredibly vulnerable position. These are people who, with respect to any of the forms that have been discussed, would have great difficulty in either reading them, understanding them or filling them out. As you say, one of the major difficulties is that they do not know their rights. This is a sizeable part of our population in what we think of as a prosperous and caring country.

In all of your work on the privacy issue, and some of the enormous opportunities and fear that surround that issue, have you ever had occasion to look at that group of Canadians and the position that they are in, almost from the beginning, of having to share their private information with someone else, even to get it on the record? It really is a Catch-22 situation, and I would like your thoughts.

Mr. Phillips: Senator, I will level with you. No, we have not done a special study or devoted any substantial part of our resources to that question.

Having said that, it is more because we do not have all that many resources. Handling the traffic that comes to us that we must deal with on a statutory basis just about chews up everything we have.

There is a privacy issue involved in people who are not literate, because they have no choice. You said it. They have to give up their information just so they can understand what information they have to give up, if you want to put it that way.

We should look at that issue. In the enlarged mandate of the office now, I hope we can find the personnel and the resources to take a good, hard look at it. It may not require a whole lot of hard research. I do not know. I can see someone here who can already tell us a lot about it. We will get in touch with you on that. It is something we will have to look at.

Senator Fairbairn: Maybe this would be a future project for you.

Mr. Phillips: That is what I am saying. I can see one good resource right here.

Senator Kinsella: Commissioner, have you appeared or have you been invited to appear before the Senate committee examining Bill C-22, the money laundering bill?

Mr. Phillips: Yes, we have, and we will be there, senator. Our intervention will be short. We do not have a whole lot to say about it, but there are a couple of important points we wish to make, yes.

The Chairman: Commissioner Phillips, I thank you very much for your availability to come to the Senate. As you can tell from all the questions that were asked, privacy is a very important issue for all senators and for all Canadians.

Mr. Phillips: Thank you, Madam Chair and honourable senators.

Senator Hays: I get the last word, Mr. Commissioner. I should like to add my thanks for your appearance today and also for your good service to Canada over the years that you have served as Privacy Commissioner. If you do leave that position, given your activism, I am sure that we will see you here again in one role or another in the not too distant future.

In any event, honourable senators, I move that the committee rise, that the chair report, and that we conclude our deliberations.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Report of Committee of the Whole

Hon. Rose-Marie Losier-Cool: Honourable senators, the Committee of the Whole, to which was referred the discussion about the work of the Office of the Privacy Commissioner, has directed me to report that the committee has concluded its deliberations.

The Senate adjourned until Wednesday, May 31, 2000,at 1:30 p.m.