INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 23, 1999

• 0909

[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): Order, please. Pursuant to an order of reference of the House dated Tuesday, November 3, 1998, we are considering Bill C-54, an act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions, and by amending the Canada Evidence Act, the Statutory Instruments Act, and the Statute Revision Act.

• 0910

Just one moment, Madame Lalonde. I want to explain the process first.

Madame Lalonde has a motion she wishes to move. I just want to let everyone know what process we're going to follow today. We're going to go through the bill clause by clause after we deal with Madame Lalonde's motion.

If you have any questions on a clause as it comes up, all the departmental officials are here to speak to the clauses. Instead of having questions and then going to clause-by-clause consideration, we're going to do it clause by clause. I don't want to jump all around and deal with different clauses and then get to it and have the same questions asked again. We're going to take our time as we go through clause-by-clause consideration of this bill.

I also want to make you aware that there's a possibility we could have votes today, which means that we're going to have to go back and forth.

I apologize to our officials. It could become a very long process.

If we do have votes and we do have to go back and forth, I ask members to return as quickly as possible so that we can reconvene.

That being said, Madame Lalonde, s'il vous plaît.

[Translation]

Ms. Francine Lalonde (Mercier, BQ): Thank you, Madam Chair.

Colleagues, you have before you a motion that will certainly not be a surprise to you. It reads as follows:

Whereas witnesses were recently heard by the Standing Committee on Industry, on Bill C-54, concerning the major problems in implementing this legislation;

and not only in Quebec,

Whereas the Quebec Government has repeated its demand that Bill C-54 be withdrawn;

It is moved that the Committee suspend clause-by-clause consideration of Bill C-54 and ask the Minister to undertake negotiations with all the provinces, to forestall any constitutional challenge that might impair the attainment of its objectives.

Madam Chair, I'd like to explain to the Members present that Bill C-54 clearly points to a federal intrusion into an area of provincial jurisdiction that affects not only Quebec but the other provinces.

Since the bill was first tabled by the Minister on October 1, and after an initial close analysis of its content, we determined—and this was brilliantly confirmed by the independent and highly competent constitutional expert, Mr. Frémont, that this bill decides for Quebec and the other provinces in their area of jurisdiction which legislation should apply and when.

In our view, that is an odious and unacceptable approach. Despite the Minister's fine words about complementarity, we still do not understand the wording of this bill, particularly clauses 27 and 30. The proposed amendments do nothing to soften the federal government's autocratic approach in an area of provincial jurisdiction.

• 0915

This bill, when it comes into force, as was pointed out repeatedly by business representatives in Quebec and indeed from coast to coast, will cause a number of problems. These businesses raised a number of questions but never received answers. As for Quebeckers, this legislation represents a setback in terms of both their rights and their protection.

Mention was made repeatedly of how proud the government was of the referendum results. But until Quebeckers decide otherwise—which I dearly hope they shall—it is important that their rights be respected. Their determination to preserve the Quebec statute must not be seen as a secessionist act, any more than the provinces who have raised certain concerns about the bill—such as Alberta and Ontario—should be considered potential secessionists.

That is why we are asking you to recommend to the Minister that clause-by-clause consideration of the bill be suspended, and that he go back to the bargaining table with a view to finding solutions, based on agreed-upon principles, that protect the jurisdiction of the provinces, and particularly Quebec.

The civil law system which we inherited from French law is one of the historical legacies that prove the specificity of the Quebec people. In this legislation, we see the potential to eradicate that fundamental characteristic of our rights in Canada and of our nature as a people.

We cannot just let the government go ahead, and tell ourselves that this isn't important. The Canadian government comes along, tells us which direction we are to take for several years to come, and basically tells us to go fly a kite. But we have no intention of doing so! That's why we want you to make this recommendation to the Minister. It is clear that you didn't make such a recommendation, because your influence is such that the Minister would have listened; you preferred to put Quebeckers and others in their place. Some people may think it regrettable that they came along like the Gauls and declared that not only had they already done this but that they had done it right. Of course, some things need correcting, but overall, it is a very good piece of legislation and has even been recognized by the European Community.

One wonders why you didn't take inspiration from it. Some may have feared the reaction of the business community, but even national corporations told you on a number of occasions that although they had concerns initially, they had come to an agreement. Why didn't you start there and make improvements? Why did you—and this is the genesis of our disagreement with you—starting from the same principles, end up with such a different legislative content and with such a different system? Business community representatives said they could easily abide by this legislation, that they had experience with it and that they would have liked to see it protect rights elsewhere in Canada and for things to continue to work harmoniously.

• 0920

Is it so terrible to recognize that Quebec did a good job in this area? Why was the government so intent on taking its inspiration from another model? To save what? For whose benefit? To start another disagreement? Or to be able to say to Quebec: “Get lost, we're in charge here”?

Do you want to use a supposedly exclusively federal area of jurisdiction, such as electronic commerce, to try and keep Quebec out of that area?

Madam Chair, this is extremely disappointing. I have had some major disappointments since becoming a Member of Parliament. I was a member of the Standing Committee on Human Resources Development when government members, in a previous Parliament, passed the Employment Insurance Act. At the time, we pointed out all the harm it would do. And as I look at this legislation today, I find it arrogant, as do others who are familiar with it. I would add that protecting Canadians in no way required arbitrarily imposing this legislation on Quebec.

It simply isn't true that we will be able to protect personal privacy and promote electronic commerce in Canada by fabricating a conflict that should never have arisen—a conflict that will emerge as a result of a deliberate lack of clarity for business purposes, a conflict that will mean inadequate protection for individual Canadians, compared to the kind of protection they might have had.

As for Quebeckers, they won't know where to turn. In some cases, they will have access to a simple, effective and free redress procedure. In others, they will have to rely on a long process. Sometimes, if they're lucky, they will be able to rely on the fact that the Commissioner can represent them before the Federal Court.

[English]

Mr. Stan Keyes (Hamilton West, Lib.): On a point of order, Madam Chair—

[Translation]

Ms. Francine Lalonde: No, Mr. Keyes. Madam Chair, I have every right—

[English]

The Chair: Just a minute, Madame Lalonde, I have a point of order.

Mr. Stan Keyes: I'm just wondering if the member could tell us how long this is going to go on.

The Chair: Madame Lalonde.

[Translation]

Ms. Francine Lalonde: However long it takes to get this motion passed. Because that is the only way—

[English]

Mr. Stan Keyes: Well, Madam Chairman, on a point of order, it's of course totally at the discretion of the chair to decide whether or not the argument has been put on the motion now before this group. I would humbly and respectfully suggest that the argument put forward by the Bloc on their motion has been put and is clearly understood. I think we should have a chance to respond to this argument—one or two of us might have something to say about it—so that we can do the business of deciding whether or not this motion will carry the day.

I'm not going to sit here for another ten minutes and listen to the same thing over and over. The argument has been put. In fact, I would suggest to the hon. member that if she has any hope of trying to achieve an acceptance of this motion, maybe if she is more conciliatory—in that she understands she's made the argument—instead of constantly pushing and needling and at times even insulting her colleagues opposite, we could end this discussion, maybe have a couple of responses from this side, and then move on to the vote.

The Chair: Monsieur Dubé.

• 0925

[Translation]

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): Madam Chair, I would like to draw your attention to Standing Order 116. I would ask my colleague to note that under that section of the Standing Orders, when a motion is tabled in committee, the mover—in this case, Ms. Lalonde—can take whatever time she requires to present her arguments. I know that she hasn't finished yet and that she still has more to present. I would therefore ask you to abide by Standing Order 116.

[English]

The Chair: I'm well aware of the regulations and the rules, and I would ask Madame Lalonde, if she has additional comments, to put them briefly to the committee or as quickly as possible. We have clause-by-clause scheduled for today.

We understand that you have many concerns, Madame Lalonde. With all due respect, over the last three months I've given you gracious amounts of time to make your points over and over. If you would give us the benefit as well at this time, I would appreciate it.

[Translation]

Ms. Francine Lalonde: Madam Chair, during the three months that you referred to, I, too, have patiently, but with passion—because I am a woman of passion—defended my views.

With all due respect, I realize the dynamic in the rest of Canada may be different. However, accepting the fact that there may be a different dynamic does not mean that I agree to see the rights and historical fact of Quebec trampled underfoot.

It is my responsibility, Madam Chair, just as it is the responsibility of the Bloc Québécois as a party represented here in committee, to speak forcefully and try to—

Mr. Antoine Dubé: Be understood.

Ms. Francine Lalonde: I hope people can see the distinction. I'm sure they can, because I have faith in our interpreters. So, we not only want to be heard, we also want to be understood.

If I am moving this motion today, it is because there is still an opportunity to respond to Quebec's concerns. Those same concerns have been voiced in other provinces, by both the business community and Canadians.

I would like to go through the arguments one by one. The more deeply we delve into Bill C-54, the more we realize that it is using electronic commerce to invade a provincial area of jurisdiction, namely the civil law, but also the common law.

Perhaps some provinces have no objection to that. However, I have faith in Canadians living in other provinces and I am certain that when Ontarians decide to pass legislation to protect personal privacy, they are unlikely to be satisfied with the framework that Bill C-54 provides. That may also be true in Saskatchewan, which was the birthplace of a number of major social policies. That may also be the case in British Columbia.

Why did Quebec act first? Well, it may well be a question of culture, as Minister Manley's advisor, Mr. Johnston, said himself. He noted—he who has been a professor of law for quite some time—that civil law countries had a tendency to provide for more specific protection of rights, whereas common law countries take a different approach. Is that the explanation? Perhaps.

That may also be the reason why we find the same trend in the European Community, starting with Germany and one district in particular. It was in one district in particular that legal protection of personal privacy began. Perhaps the European Community has the same cultural roots, roots we can more closely relate to? There is nothing offensive in that, either for Quebeckers or for those who do not share that culture.

• 0930

The federal government's intention was clear when the Minister of Justice, Ms. McLellan, appeared before the Committee and said that in her view, commerce went beyond property and the civil law. That was when I realized that electronic commerce was being used to edge out Quebec and the provinces in their own area of jurisdiction. Protection of privacy is an exclusively provincial power.

I would remind you that as long as there is no federal statute, the Quebec statute passes the constitutional test. Mr. Owens made that very assertion in his highly respected study of financial services. What that means is that when there is a weaker federal statute, it applies to federally-regulated companies, unless the federal government agrees otherwise, just as many companies and business community groups that want to ensure that all Quebec corporate entities will be protected by the Quebec statute have requested repeatedly.

I would remind you of what Mr. Frémont said:

First of all, Bill C-54, in my view, violates both the spirit and the letter of the division of powers, as we must understand it in this country. It denotes an arrogant approach and constitutes an intrusion on the part of the federal government in areas of provincial jurisdiction.

Protection of personal privacy is essentially a provincial power.

In Quebec, for example, in the area of property and civil rights, it is the Quebec Civil Code that applies, as well as the Canadian and Quebec Charters.

I unfortunately was not present when representatives of the Bar appeared, although I did try to read their testimony on the Intranet. It was not available, however, the last time I looked. My colleague was here, though, and representatives of the Bar declared that it could not take only one position on the constitutional issue. That clearly means that this is a matter for debate and that those who are vigourously defending the provinces' and Quebec's constitutional rights in this area are on solid ground.

At the present time, electronic commerce—and again, this is Mr. Frémont making such an assertion, is a shared power. He says the following:

Bill C-54 is based on a false premise, in my view, which is that electronic commerce is a federal responsibility. Nothing could be further from the truth; in my opinion, it is a shared power, where both the provinces and Ottawa have a say.

Being from Quebec, we would have every reason to be concerned if we had a common law applicable to federally-regulated electronic commerce, because if that were the case, a characteristic that has been recognized by Parliament—namely Quebec's civil law system—would essentially be set aside.

If we were to go along with the approach taken in this bill, the result would be to evict the provinces from areas such as the regulation of trade the minute any kind of electronic commerce were involved. This is, in his words, “a full-fledged attack on provincial economic powers”.

• 0935

I repeat, Mr. Frémont is an independent constitutional expert. He is a highly sought-after commentator, an eminent professor and, quite frankly, when I heard his testimony, I was comforted to know that mine and my colleagues's analysis jibed with his. Having found that kind of comfort, we have no intention of giving up—far from it. That is why we intend to do whatever we can to convince you and the Minister not to pursue this course of action when there are other options.

Federally-regulated companies that operate in Quebec are already covered by the Privacy Act. With respect to the wording of the bill, Richard Owens pointed out, and I quote:

... it is clear that it applies equally to banks and other financial institutions. ... in the absence of federal legislation in this area, a bill passed by the provincial government could apply to an area of federal jurisdiction, unless it specifically prevents the federal government from playing its usual role.

Should that not—and this is a paper prepared at the specific request of the Minister of Finance—have been the basis for developing Bill C-54 on electronic commerce? Because legislation already applies to financial institutions in Quebec, we had only to build on that legislation. Why bring forward a bill that weakens current protection?

You may recall, if you were present at the time, that I twice asked the representative of the Canadian Bankers Association whether bankers would continue to abide by the Quebec statute. What was his answer? His substantive answer was as follows: We will continue to be covered by the federal legislation; we have no choice. I reminded him after the Committee meeting, that even with respect to Quebec's Bill 188, which is far more demanding, the Canadian Bankers Association stated that it would meet those more stringent requirements.

But we have seen the bankers use the argument of existing federal legislation to say: we will be covered by the federal statute. Was the intention truly to weaken the protection afforded Canadians and the kind of protection that businesses such as banks undertook to provide? Why didn't the federal government simply build on the Quebec statute?

The constitutional issue and the lack of negotiations with the provinces are creating unnecessary duplication that will only make life more difficult for both the business community and people living in Quebec. One might add that they will also make life difficult for businesses operating in other provinces. Are federal authorities unaware that legislation is currently being drafted with respect to private health care—in Alberta, if I'm not mistaken—and that a similar bill is in the works in Ontario? Witnesses from Ontario pointed out to Committee members that Bill C-54 conflicts with the restraints they are trying to impose on the private sector.

• 0940

The worst thing, one might be tempted to say, is that in Quebec, businesses have no idea how they will be able to enforce two statutes in future. The Conseil du patronat, which is a group that represents the business community, made the point before the Committee that for the collection of a single piece of data, both laws will have to apply. And yet it isn't possible to apply two different systems to a single data collection process.

As for citizens, are they going to complain to the Access to Information Commission, only to be told that this falls within the purview of another authority? And will they seek out that other authority, only to be told “no”? Will they finally become discouraged? If it really wanted to protect personal privacy, if that was actually its intention—and I very much doubt that it was—the federal government has chosen the worst possible means of going about it because Quebeckers and Canadians in other provinces who would like to benefit from tougher legislation than the federal bill will no longer know where to turn.

In fact, the other provinces will come up against another obstacle. Quebec's powers were taken away when its legislation was already in place. How will Ontarians react if they decide to look at this issue and realize that they are no longer able to decide for themselves how personal privacy should be protected in Ontario? That could also happen in other provinces. In the United States, the states are responsible for protecting personal privacy.

We therefore find ourselves in a situation where a dual system, that suits no one, neither the business community—

[English]

Mr. Stan Keyes: On a point of order, Madam Chair—

[Translation]

Ms. Francine Lalonde: —nor citizens—

[English]

Mr. Stan Keyes: A point of order.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Madam Chair, aside from the fact that I think this bill will result in Quebeckers being the most protected citizens in all of Canada, can I ask the member opposite how long she intends to speak, in minutes?

The Chair: Madame Lalonde.

[Translation]

Ms. Francine Lalonde: I don't think I have to answer that question. I already stated that I would try to convince you and I intend to continue to do that. I respectfully listened to the testimony of the witnesses who appeared before the Committee and asked my questions in the time made available to me.

This morning, I want to review a minimum number of arguments that in my view should lead you to recommend to the Minister that he not continue the process of passing this bill. Instead, he should go back to the bargaining table with the provinces to ensure that the legislation that is passed really protects personal privacy, does not create any constitutional issues, does not constitute a frontal attack on provincial powers, and does not introduce a dual system for Quebeckers and businesses. As was noted by the Conseil du patronat, which is a confederation of employer associations as well as a unique business organization—

[English]

Mr. Stan Keyes: On a point of order, Madam Chair, obviously many of the arguments that the Bloc member is putting forward could probably be dealt with in clause-by-clause.

Quite frankly, the Bloc Québécois should be totally ashamed of itself, ashamed, Madam Speaker, because not a single amendment to reflect any of the matters that the member is trying to put to this committee is reflected in an amendment to this bill. Not a single amendment has come forward from the Bloc Québécois to improve or to try to improve this bill. Their answer, Madam Chairman, is to sit back and say, “Well, you know what? Instead of going through this big bill”—

The Chair: Mr. Keyes.

• 0945

Mr. Stan Keyes: I'm coming to my point of order.

The Chair: Quickly, please.

Mr. Stan Keyes: I have a right to develop an argument, just like the member opposite. I'm coming to my point of order, Madam Chair, with respect.

This massive bill on privacy and e-commerce, in her opinion and in the opinion of the Bloc, needs to be, at the outset, scrapped—

The Chair: Mr. Keyes, your point of order.

Mr. Stan Keyes: —but beyond that, it should be amended. They have not a single amendment, Madam Chair. So my question is—and I can smell a filibuster from ten miles away—is this a filibuster?

The Chair: Mr. Dubé, you had a point of order.

[Translation]

Mr. Antoine Dubé: Madam Chair, for there to be a point of order, a specific Standing Order must at the very least be referred to. I did not hear the Member say which Standing Order he was relying on and why he believes Ms. Lalonde is in violation of the Standing Orders. I would remind members once again—

[English]

The Chair: Mr. Dubé, I'm hearing your point of order.

[Translation]

Mr. Antoine Dubé: —that she has every right to—

[English]

The Chair: Mr. Dubé, do you have a point of order? You said you had a point of order. Do you? Yes or no?

[Translation]

Mr. Antoine Dubé: I just wanted to say that—

[English]

The Chair: No, that's not what you said. You said “point of order”, Mr. Dubé. If you don't have a point of order, you're speaking out of turn.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: Thank you, Madam Chair. Thank you, Mr. Dubé.

Mr. Antoine Dubé: Thank you.

Ms. Francine Lalonde: I was saying that the Conseil du patronat, which is a highly respected business organization is—

Mr. Antoine Dubé: Continue.

Ms. Francine Lalonde: Madam Chair, I have the right to explain why the Committee should pass the motion that is before it this morning. I shall continue, as I have every right to.

The Conseil du patronat du Québec, which is a unique business organization—

[English]

Mr. Stan Keyes: On a point of order, Madam Chair, is it a right for the Bloc Québécois member to waste the taxpayers' money with this filibuster?

The Chair: Mr. Keyes, the term you're raising is an issue of debate. It's not a point of order.

Mr. Stan Keyes: No, I'm asking a question. It's a point of order.

[Translation]

Ms. Francine Lalonde: Since you mentioned wasting taxpayers' money—

[English]

The Chair: Just a second.

[Translation]

Ms. Francine Lalonde: Thank you.

[English]

The Chair: All right. We'll allow Madame Lalonde to continue.

[Translation]

Ms. Francine Lalonde: Quebeckers pay taxes and Quebec business representatives told the Committee: “If you pass this bill, we are going to lose money. We have invested in protecting personal privacy and our businesses are used to that system. We have even protected Canadians because our national companies have undertaken to apply the rules that Quebec forced them to introduce all across Canada.” They also told us: “Please, do not put us in a situation where we will not have a clear understanding of our obligations.” Laws set out certain requirements for businesses, but what is most important is that those laws be predictable and clear and establish obligations that businesses are also able to account for.

The specific problem with this bill is that businesses will not know what to expect. They've already invested money and will now be forced to spend even more. If that expenditure meant greater protection, it wouldn't be so bad, but that is not the case. In Quebec, a system is already in place.

I am not claiming that it is enforced 100 percent of the time. But that will not be the case in Canada either five years from now, because there is a real revolution occurring as far as personal privacy protection and business practices are concerned, and it's important to take whatever time is needed. Things fall into place better in larger corporations first, and then more gradually in small- and medium-sized businesses.

• 0950

In the meantime, the government has to support its citizens. And yet, rather than building on a system that is already in place, so that whatever money has already been invested would allow us to do even more, the bill creates a situation where further investments will be needed, not to provide better protection, but to be able to defend oneself, which will result in less protection. That is simply unacceptable.

Yes, let's talk about money. The Conseil du patronat says—

[English]

Mr. Stan Keyes: I have a point of order, Mr. Chairman.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare (Carleton—Gloucester, Lib.)): Mr. Keyes, on a point of order.

[English]

Mr. Stan Keyes: I wonder if the hon. member would read paragraph 27(2)(d).

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): Mr. Keyes, you are making a request of another member, not raising a point of order.

Ms. Francine Lalonde: I know it by heart.

[English]

Mr. Stan Keyes: So she doesn't want to read that. Okay, I understand why, Mr. Chairman. There's an arrogance across the way. Continue.

[Translation]

Ms. Francine Lalonde: Mr. Chairman, it's not because there is a lack of models available, for heaven's sake.

Mr. Antoine Dubé: Please continue.

[English]

Mr. Stan Keyes: Oh, oh. Speaking up for the Bloc Québécois.

[Translation]

Ms. Francine Lalonde: I know sub-paragraph 27(2)(d) by heart. Mr. Chairman, perhaps I could pick up where I left off.

The Conseil du patronat is concerned because it invested a lot of money in this and wanted to continue to do so. In its brief, the Conseil states, and I quote:

For members of the business community, this is a disturbing prospect. Not only must they rely on the predictability of the legislation that governs their activities, but they cannot afford to be caught up in jurisdictional disputes between different lawmakers.

As for Quebec consumers—

[English]

Mr. Stan Keyes: I have a point of order, Mr. Chairman.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): On a point of order.

[English]

Mr. Stan Keyes: On a point of order, Mr. Chairman, didn't Professor Frémont recognize the federal government's right to act in this area of trade and commerce?

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): That is not a point of order, Mr. Keyes.

[English]

Mr. Stan Keyes: Oh, thank you, Monsieur Bellemare. That's unfortunate.

[Translation]

Ms. Francine Lalonde: Perhaps I could continue:

As for Quebec consumers, they would constantly be forced to try and determine which legislation applies and choose between two types of remedies, depending on whether their information is protected by one statute or the other.

In addition, within a single file, some information could be subject to both statutes.

It is even conceivable that within a single file, different rules might apply, depending on whether the information that is collected, used or held by the organization is subject to the Quebec or the federal statute.

These are all questions for which we have yet to find an answer and which, were the bill to pass as is, would create huge—

—and I emphasize the word “huge”—

...problems for businesses.

As for the Canadian Life and Health Insurance Association—

[English]

Mr. Stan Keyes: I have a point of order, Mr. Chairman.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): On a point of order?

[English]

Mr. Stan Keyes: Yes, Mr. Chairman. I couldn't help but notice that the Reform and Conservative parties are both sitting there just accepting all of this without saying anything. I just wondered if they approve of this filibuster by the Bloc.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): That is not a point of order.

Ms. Lalonde, please continue.

Ms. Francine Lalonde: Thank you.

The Canadian Life and Health Insurance Association states the following:

The CLHIA believes that this approach is completely ineffective for organizations such as life and health insurance companies that operate nationally (and internationally). A considerable number of routine operations—thousands every day—would be subject to both federal and provincial regulations without any guarantee that a standardized approach would ever be adopted.

[English]

Mr. Janko Peric (Cambridge, Lib.): I have a point of order, Mr. Chairman.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): Excuse me, but a member is raising a point of order.

[English]

Mr. Janko Peric: Madame Lalonde, do you want a coffee? I'll bring you a coffee.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): That is not a point of order.

Ms. Francine Lalonde: Mr. Chairman, it's very kind of the Member to show concern for my health, but I think I will stick to water. Thank you.

This two-tier regulatory structure, which would prove redundant, would create uncertainty and confusion among consumers and result in unnecessary administrative costs for organizations and regulatory authorities; consequently, it is certainly not desirable.

This same association submitted a series of questions to the Minister of Industry. As far as I know, those questions were never answered.

[English]

Mr. Stan Keyes: I have a point of order, Mr. Chairman.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): Mr. Keyes, do you have a point of order?

[English]

Mr. Stan Keyes: Mr. Chairman, you might actually find this to be a point of order. I wonder if the clerk of this committee could read for us—and for the benefit of Canadians from coast to coast who may be listening in on this filibuster by the Bloc—that section of the Standing Orders that ultimately permits a member of this committee, and the member for the Bloc in this specific case, to tie up this committee's work. I wonder if the clerk could do this for me, Mr. Chair.

• 0955

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): Mr. Keyes, I think I can finally accept your point of order. I will ask the Clerk to quote the relevant section of the Standing Orders.

Mr. Antoine Dubé: Can I also raise a point of order?

The Vice-Chairman (Mr. Eugène Bellemare): No, we can only deal with one point of order at a time.

Mr. Antoine Dubé: Could I do so after you have dealt with this one?

The Vice-Chairman (Mr. Eugène Bellemare): One point of order at a time.

[English]

The Clerk of the Committee: Standing Order 116 states:

In a standing, special or legislative committee, the Standing Orders shall apply so far as may be applicable—

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): One moment, please.

Mr. Keyes, you interrupted Ms. Lalonde to hear... Mr. Keyes.

Mr. Antoine Dubé: I would just like to raise a brief point of order, Mr. Chairman. How can you make any headway with someone who refuses to listen?

The Vice-Chairman (Mr. Eugène Bellemare): Fine.

Please proceed, Madam Clerk.

[English]

The Clerk: Okay. It reads:

In a standing, special or legislative committee, the Standing Orders shall apply so far as may be applicable, except the Standing Orders as to the election of a Speaker, seconding of motions, limiting the number of times of speaking and the length of speeches.

An hon. member: So we can limit the length of a speech?

The Clerk: No, “except”.

[Translation]

Mr. Antoine Dubé: You did say “except”. Fine. You may continue.

Ms. Francine Lalonde: Thank you.

The Vice-Chairman (Mr. Eugène Bellemare): Please proceed, Ms. Lalonde.

Ms. Francine Lalonde: Thank you, Mr. Chairman.

The Canadian Life and Health Insurance Association has some very concrete issues to resolve because it is involved in thousands and thousands of routine operations on a daily basis. These companies need to know, immediately, which legislation will apply and how. Yet they do not see how the current provisions of the bill or even one of the amendments we have seen thus far could possibly answer their concerns.

The organization Action Réseau Consommateur made the following point:

This clause essentially paves the way for the creation of an extraordinary diversity of legal regimes that are very likely to distort competition.

It has been stated, then, that this will make life impossible for businesses, and we're talking here about businesses that can afford to hire a lawyer. We haven't even begun to talk about its impact on ordinary citizens.

Mr. Lawson, an independent expert from British Columbia, said that in order to resolve this problem—

Mr. Antoine Dubé: On a point of order, Mr. Chairman.

Ms. Francine Lalonde: Are you interrupting me, Antoine?

The Vice-Chairman (Mr. Eugène Bellemare): One of your colleagues has raised a point of order.

Mr. Antoine Dubé: I would like to ask the Vice-Chairman, who is currently in the chair, as well as the Clerk, whether it is considered acceptable for the Chair of the Committee to move and sit on the Liberal side in order to try and find some way of limiting my colleague's speaking time.

The Vice-Chairman (Mr. Eugène Bellemare): The Chair can move wherever she likes.

Mr. Antoine Dubé: I see.

The Vice-Chairman (Mr. Eugène Bellemare): Ms. Lalonde.

Ms. Francine Lalonde: Thank you, Mr. Bellemare.

The Vice-Chairman (Mr. Eugène Bellemare): One moment, Ms. Lalonde. Most of the time, I would say that you are a very pleasant and well-informed person. I did say, “most of the time”. Today, however, you are in the process of—

Ms. Francine Lalonde: Thank you, Mr. Chairman. I won't hold it against you that you made that distinction.

The Vice-Chairman (Mr. Eugène Bellemare): Ms. Lalonde.

Ms. Francine Lalonde: I do hope I am being as pleasant as I possibly could in this unpleasant situation.

The Vice-Chairman (Mr. Eugène Bellemare): Ms. Lalonde, would you do me a favour and tell me whether your submission has an end?

Hon. Members: Ah, ah!

Mr. Antoine Dubé: Ah, ah! Yes.

Ms. Francine Lalonde: Yes. The end will come when I have attained my goal, which is to say when I have convinced the Committee to ask the Minister to suspend clause-by-clause consideration of this bill and return to the bargaining table.

Hon. members: Oh, oh!

Ms. Francine Lalonde: Mr. Chairman, I believe I have the right to continue.

The Vice-Chairman (Mr. Eugène Bellemare): With all due respect, and even some admiration on occasion, I would like to ask you whether you could give us an idea of the length of time that you will be giving us the benefit of your eloquence.

Ms. Francine Lalonde: Mr. Chairman, if you said you would soon be convinced to support my motion, things could move quite quickly.

The Vice-Chairman (Mr. Eugène Bellemare): Could things also move quite quickly if I were to say—

Hon. members: [Editor's Note: Inaudible]

Ms. Francine Lalonde: No.

The Vice-Chairman (Mr. Eugène Bellemare): Ms. Lalonde, you could spend hours and even days trying to convince people. You'll find that people may be as stubborn, or tenacious, if you prefer, as you are.

Mr. Antoine Dubé: It's possible, but it's pretty rare.

The Vice-Chairman (Mr. Eugène Bellemare): We could well be here forever because your talents as a parliamentarian are boundless.

• 1000

Ms. Francine Lalonde: Thank you.

The Vice-Chairman (Mr. Eugène Bellemare): Just to ensure our physical well-being, should we be thinking about ordering lunch, supper or what, exactly? I'm sure you're getting hungry.

Ms. Francine Lalonde: I can't prevent you from making whatever arrangements you feel are necessary. May I continue?

The Vice-Chairman (Mr. Eugène Bellemare): Very well, continue.

Ms. Francine Lalonde: Thank you. To resolve this problem that—

The Vice-Chairman (Mr. Eugène Bellemare): Excuse me, Ms. Lalonde. Mrs. Barnes would like to say a few words.

Mrs. Barnes.

[English]

Mrs. Sue Barnes (London West, Lib.): On a point of information to the member opposite, I've found over many years that concise, explicit argument is the most persuasive. I would suggest to the member that if she wishes to be persuasive, it would be in her interest to be concise.

[Translation]

The Vice-Chairman (Mr. Eugène Bellemare): Thank you, Mrs. Barnes.

Ms. Lalonde.

Ms. Francine Lalonde: I have noted all of your excellent advice. I would remind the members that Mr. Lawson, who is an independent expert, in answer to one of my questions about the two regimes that would apply, said that in order to resolve this problem, residents of Quebec and lawyers practising there would have quite a bit of work to do. Why will lawyers in Quebec have so much work? Because businesses will have trouble knowing what to expect and things will be difficult for them. In order to resolve the problem of duplication and harmonize its legislation with others, as Mr. Lawson pointed out, the federal government should sit back down with the provinces at the bargaining table that it left when it tabled Bill C-54.

We must remind members that negotiations were underway and that the Minister, after sending a draft to the provinces on September 21, then not even waiting for their response, abruptly and unilaterally ended that process. The bill was tabled on October 1, understandably so, at the international OECD conference held here in Ottawa, which was co-chaired by Minister Manley. That conference was very valuable. I am told it marked the first time that the OECD had held an international conference elsewhere than at its headquarters in Paris. It is to the Minister's credit that he was able to bring that off. One can certainly understand that he wanted to present a bill that would demonstrate that he is in the vanguard. But the fact remains that in his haste a couple of square pegs ended up being placed in round holes.

Even if we passed the amendments that I have seen, the bill will not succeed in providing the desirable level of personal privacy protection. This bill has created a great deal of confusion in Quebec and is the source of much wasted energy and resources. It will certainly not help to improve protection of personal privacy.

Unless the federal government wants to completely invalidate the Quebec statute and relevant provisions of the Civil Code with respect to personal information and electronic commerce, it has no choice but to go back to the bargaining table with the provinces and negotiate a satisfactory bill.

You will note that my motion says that the Committee should “suspend” clause-by-clause consideration of the bill. I obviously understand that the Minister wanted to convey the message to the other provinces that if they do not move quickly enough, the federal government will go ahead. In his desire to do something, it is important that he not completely invalidate, in the only part of Canada where steps have been taken in this area, all the work that has already been done, that he not make things more difficult for all concerned and that he not leave Canadians and the rest of Canada without the appropriate means to act, particularly since the business community is not satisfied with what is being proposed. It is a well-known fact that many of them also operate in Quebec.

• 1005

The Canadian Manufacturers and Exporters Alliance said that if we are trying to encourage electronic commerce, the last thing we need is a layering of regulatory structures and standards.

[English]

Mr. Stan Keyes: I have a point of order, Madam Chair.

The Chair: Mr. Keyes, on a point of order.

Mr. Stan Keyes: I would really appreciate it if the member wouldn't refer to Ontario or try to defend it, because she really has no idea what the Government of Ontario has not done in this area. She should just stick to something she half knows about and go on with her high-octane rhetoric from Quebec's point of view.

The Chair: Madame Lalonde, please try not to be repetitive as well.

[Translation]

Ms. Francine Lalonde: I will certainly not challenge what Mr. Keyes says about my not knowing Ontario the way he does, but as for the half he admits I do know something about, I would point out to him that he certainly doesn't know anything more about Quebec than I know about Ontario.

As I was saying, the Canadian Manufacturers and Exporters Alliance said that the last thing we need is a layering of regulatory structures, private standards and legislative frameworks that would only complicate the lives of business people. Its members are not at all convinced that we need a national framework that could duplicate or be inconsistent with existing levels of protection in Quebec or other provinces.

The Canadian Life and Health Insurance Association pointed out that one of its primary concerns is that there is a need in its view to coordinate or harmonize that legislation with any legislation currently in place in the provinces and territories, and that it is essential—

[English]

Mr. Stan Keyes: I have a point of order, Madam Chair.

The Chair: Madame Lalonde, I have a point of order from Mr. Keyes.

Mr. Stan Keyes: I wonder if the legislative clerk could give me a copy of the Bloc's amendments to this bill. Does she have a copy of them?

An hon. member: There aren't any.

Mr. Stan Keyes: Oh, there aren't any? That's shameful.

[Translation]

Ms. Francine Lalonde: Yes, you would have liked to defeat them.

One of our primary concerns is that...

[English]

The Chair: Madame Lalonde, with all due respect to the other members of this committee, in the past we've had different precedents in this committee. One of the precedents was that for the 48-hour rule, you would submit your motion prior to the end of business hours. Business hours in the House were until 2.30 p.m. on Friday, but this motion wasn't submitted until 6 o'clock. We've entertained this motion and have not delayed it. I would appreciate it if you would give the same respect to the other members on this committee.

Mr. Stan Keyes: On a point of order, Madam Chair, am I to understand that this motion was not submitted with 48 hours' prior notice to this committee?

[Translation]

Ms. Francine Lalonde: It was tabled Friday, Madam Chair.

[English]

The Chair: It was not filed until after 2.30 p.m. on Friday. It was not filed until 6 o'clock.

[Translation]

Ms. Francine Lalonde: No, we enquired and got the information.

[English]

The Chair: By the rules of the House—and we're governed by the rules of the House—it has to be in by 2.30 p.m. on Friday. I believe it was not received until 6 o'clock on Friday.

[Translation]

Ms. Francine Lalonde: No, no.

Mr. Antoine Dubé: No, no.

Ms. Francine Lalonde: I'm sorry, Madam Chair, but we did make enquiries about that of the Clerk of the House, who confirmed that it was only the day that mattered, not the time.

[English]

The Chair: Excuse me, Madame Lalonde. I'm just informing you that, unfortunately, the rules of the House state that it's 2.30 p.m. on Friday, and I'm asking you to give some respect to the other members of this committee.

I see the bells are ringing. It looks like we now have a vote, so we will recess until after the vote.

Mr. Stan Keyes: Thank you, Madam Chair.

The Chair: We're suspending until after the vote.

[Translation]

Ms. Francine Lalonde: I will continue my remarks when we return, Madam Chair.

• 1009

• 1110

[English]

The Chair: Okay, we're going to resume our meeting.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: Thank you, Madam Chair.

I was saying that in order to resolve the problem of duplication that we deplore and harmonize this bill with other legislation, the federal government must once again sit down with the provinces at the bargaining table, a table that it abruptly and unilaterally left when it introduced Bill C-54.

There is certainly reason to commend the Minister for having organized the conference here in Ottawa on electronic commerce. It was the first time the OECD had ever held a meeting outside of Paris. And it was an important conference. It showed that there are two sets of precedents, and two major regimes. One is the European Community's regime, as seen in the European directive, and the other is the system currently in place in the United States.

The Government of Canada wanted to demonstrate that there was a need to legislate. I am prepared to recognize that that was appropriate. However, it stopped midway through the process. It should have built on the Quebec experience, which would have been a tremendous advantage in implementing its legislation in Canada, because a great many large corporations had already established certain rules.

Indeed, it's important to point out that business representatives themselves told the Committee that this lack of clarity is problematical in their view.

[English]

Mr. Stan Keyes: A point of order, Madam Chair.

The Chair: Mr. Keyes, on a point of order.

Mr. Stan Keyes: I apologize to the member opposite for interrupting. I just wonder if she can provide for this committee and her colleagues at this committee a ballpark estimate of the time she needs to complete her arguments on her motion.

The Chair: Madame Lalonde.

[Translation]

Ms. Francine Lalonde: I did not rehearse this, Mr. Keyes. So I really can't give you an idea of how much time I need. Madam Chair, that isn't really a point of order.

[English]

The Chair: Mr. Keyes.

Mr. Stan Keyes: On the same point, Madam Chairman, the committee members have been more than patient with Madame Lalonde. I believe her arguments speaking for the motion before us have been made; therefore I request that the chair now call the question.

[Translation]

Ms. Francine Lalonde: I'm sorry—

[English]

The Chair: The chair will now call the question and—

[Translation]

Ms. Francine Lalonde: No. Madam Chair, I'm sorry, but I have the right—

Mr. Antoine Dubé: On a point of order.

[English]

The Chair: The reality is that the chair rules. The chair is making the decision and the chair is calling the question. You have other procedural avenues available to you if you don't agree with the ruling.

[Translation]

An hon. member: No.

Mr. Antoine Dubé: No, no, no.

Ms. Francine Lalonde: I'm sorry, Madam Chair—

[English]

The Chair: The chair is calling the question.

[Translation]

Mr. Antoine Dubé: No, Madam Chair.

Ms. Francine Lalonde: Madam Chair, you cannot interrupt me—

[English]

The Chair: All those in favour of the question.

• 1115

[Translation]

Ms. Francine Lalonde: Madam Chair, I'm sorry, but I wish to raise a point of order.

[English]

The Chair: Madame Lalonde, I make the final decision here and we've heard from you.

[Translation]

Ms. Francine Lalonde: Madam Chair, I'm raising a point of order and I have the right to do so on this issue. What you are doing is not consistent with Standing Order 116. I have the right to take as much time as I like.

[English]

The Chair: Madame Lalonde, I am the chair of this committee, and as chair of this committee I have listened to you patiently for over an hour. You have become very repetitive. I now have a request on the floor from one of the members to call the question. I'm now going to call the question. If you don't agree with my ruling, you have other avenues to deal with it.

[Translation]

Ms. Francine Lalonde: No, Madam Chair—

[English]

The Chair: All those in favour of the motion?

[Translation]

Ms. Francine Lalonde: You haven't... Listen!

[English]

The Chair: We have a motion before us. I'm now calling the question.

[Translation]

Ms. Francine Lalonde: I have never seen this done in a committee before, Madam Chair.

Mr. Antoine Dubé: I wish to raise a point of privilege, Madam Chair.

[English]

The Chair: All those in favour of the question?

[Translation]

Mr. Antoine Dubé: On a point of privilege, Madam Chair.

[English]

The Chair: All those opposed?

[Translation]

Mr. Antoine Dubé: On a point of privilege, Madam Chair.

Ms. Francine Lalonde: You can't do that; that's a violation of the Standing Orders, Madam Chair.

[English]

(Motion negatived)

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): [Editor's Note: Inaudible]

The Chair: Mr. Jaffer, with all due respect to the clerk, I make the final decisions at this committee. There are other avenues available if Madame Lalonde does not agree. I entertained their motion, although it was not received until after 2.30 p.m. on Friday. I gave them over an hour to debate. They are becoming very repetitive. We have clause-by-clause on our agenda today. If they don't agree with the ruling of the chair, they have the opportunity to take it up in the House after we're done with this bill.

[Translation]

Ms. Francine Lalonde: On a point of order, Madam Chair. You said that we did not table the motion in time. I'm sorry, but we did check with the foremost authority at the House and she informed us that it is the day that matters.

Secondly, Standing Order 116 gives me the right to speak and if—

Mr. Antoine Dubé: Really, Madam Chair, you are talking over her. It's a point of privilege.

[English]

The Chair: I'm not turning your mike on. The reality is, M. Dubé and Madame Lalonde, that you have had four months to bring this question to this committee. We have listened to you for over an hour today, with all due respect. We are going to proceed to clause-by-clause. The chair has a responsibility to ensure order is kept and maintained at this committee and that we continue with our agenda. We cannot have things repeated over and over again and expect to progress as a committee.

If you want to take a look at the wording of the motion, which we've already voted on and defeated, the reality is it is out of order. We have been deemed by the House to study this bill. Your motion says we should suspend clause-by-clause. As a committee, we do not have the right to suspend clause-by-clause. We have to do what the House has deemed us to do. So I've given you plenty of time to have your say. We have now voted. We are moving on to clause-by-clause.

[Translation]

Mr. Antoine Dubé: On a point of privilege, Madam Chair.

[English]

The Chair: Do you have a question of privilege, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: As a parliamentarian, I must appeal your decision and ask the Clerk to again read Standing Order 116—

[English]

The Chair: Mr. Dubé, if you wish to disagree with my decision—

[Translation]

Mr. Antoine Dubé: Ms. Lalonde did not repeat everything. She has a text that she would like to go through point by point—

[English]

The Chair: —there is an avenue to appeal my decisions and you have an opportunity to do that. There are other avenues. We will now proceed to clause-by-clause.

We all have an agenda in front of us.

No, Madame Lalonde, we're moving to clause-by-clause.

[Translation]

Ms. Francine Lalonde: Madam Chair, I want to raise a point of order.

[English]

The Chair: Madame Lalonde, I am well aware of the rules. I am well aware of my authority as the chair and I am well aware of the fact that different people have been told different things.

[Translation]

Ms. Francine Lalonde: But you can't... I've every right to ensure that this appears in the “blues”.

[English]

Mr. Stan Keyes: The chair has ruled. End of debate.

The Chair: The debate is over.

[Translation]

Ms. Francine Lalonde: Under the Standing Orders, Madam Chair, I would ask the Committee to overturn your decision. I request a recorded vote.

• 1120

[English]

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer: I would like to say, if I may, that Mr. Jones was under the impression that the Bloc would still have the freedom to speak for the next little while. He said he would be here in about 15 minutes or so. I suggest we wait for him before we move to clause-by-clause, because he anticipated that we wouldn't have moved to clause-by-clause yet.

The Chair: Mr. Jaffer, with all due respect to Mr. Jones, I asked everyone to reconvene here as quickly as possible after the vote. Mr. Jones is aware that as chair I can make rulings for this committee.

Mr. Rahim Jaffer: Oh, no, I realize that, Madam Chair.

The Chair: I'm making rulings based on the advice I've been given, and we're going to proceed to clause-by-clause. We will try to get a call to Mr. Jones to let him know we're proceeding to clause-by-clause. I'm assuming the clerk can call his office and let him know we've done that. They can ask him to come back as quickly as possible.

We also have the department before us, and there may be some questions for the first clause. The idea was that as we went through we would ask the questions of the department. The first clause we'll be dealing with is the definitions section. There are many different amendments there that need to be explained.

Perhaps I can find out from the clerk if they've contacted Mr. Jones' office.

[Translation]

Ms. Francine Lalonde: Madam Chair, I suggested that we appeal your ruling. I asked for a recorded vote. You cannot—

[English]

The Chair: Madame Lalonde, I have made a decision. If you don't agree with that decision, you have avenues available to you. We are proceeding to clause-by-clause.

Mr. Antoine Dubé: Non.

The Chair: Yes, Mr. Dubé. The reality is we're going to clause-by-clause.

[Translation]

Mr. Antoine Dubé: I'm sorry, Madam Chair, but this is not a dictatorship. I wish to raise a point of privilege.

[English]

The Chair: We had a vote, Mr. Dubé.

[Translation]

Mr. Antoine Dubé: You must hear our arguments, Madam Chair. If you do what you are proposing to do, you will be behaving like a dictator.

[English]

The Chair: Mr. Dubé, we had a vote and we're moving to clause-by-clause.

[Translation]

Mr. Antoine Dubé: We are not going to vote on something that is not even on the agenda. Madam Chair, do me a favour and consult someone who has extensive parliamentary experience. Look at Standing Order 116. Ms. Lalonde was not repetitive. She has a text, and she is now on page 10 of that text—

[English]

The Chair: I'm going to start on clause-by-clause, Mr. Dubé. If you wish to stay for clause-by-clause, that's your privilege or your choice. We're now moving to clause-by-clause.

Pursuant to Standing Order 75(1), consideration of clause 1 is postponed. We're now dealing with clause 2.

[Translation]

Ms. Francine Lalonde: I cannot accept that.

[English]

Mr. Stan Keyes: Take it to the House. The chair ruled. You might not like it; we didn't like your filibuster. Take it to the House.

The Chair: May I have order, please? I'd like some order at this committee. Madame Lalonde, can we please have order?

We will now move to clause 2.

Mr. Stan Keyes: Madam Chairman, I have a point of order.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Did the clerk try to get hold of Mr. Jones.

The Clerk: He's in the lobby somewhere. His staff can't get hold of him, but they presume he's on his way.

Mr. Stan Keyes: Oh, good.

Mr. Jaffer, I am on a point of order here. You can probably carry on a social conversation with Mr. Dubé, but are you aware whether Mr. Jones has any amendments that are pending immediately, before clause—

Mr. Rahim Jaffer: There are some in there, yes. They are not pending immediately.

The Chair: They're not for clause 2.

Mr. Rahim Jaffer: They're not for clause 2.

Mr. Stan Keyes: Out of courtesy for Mr. Jones, if we come across a clause...we may want to put it down until—

The Chair: He has amendments beginning at clause 5. I imagine, if it was his intention to be here, that will be long past 15 or 20 minutes.

[Translation]

Mr. Antoine Dubé: Madam Chair, on a point of order.

[English]

The Chair: Do you have a point of order, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: How can you talk about showing courtesy for someone who is absent when you aren't even capable of respecting the spirit and letter of the Standing Orders for the benefit of members present? It's totally unacceptable. We are supposed to wait for someone who isn't here and yet I—

[English]

The Chair: We're not. We're proceeding, Mr. Dubé, to clause-by-clause. You weren't listening, obviously. When we get to clause 5, where Mr. Jones has a proposed amendment—

[Translation]

Mr. Antoine Dubé: You are not listening, Madam Chair. I want to raise a point of privilege. You are not waiting for me to finish. That's exactly what happened the last time.

• 1125

[English]

The Chair: We're moving on to clause-by-clause consideration.

(On clause 2—Definitions)

The Chair: We have three amendments before us on clause 2. Mr. Lastewka, did you wish to speak to those amendments or do you wish—

Mr. Walt Lastewka (St. Catharines, Lib.): You're going clause by clause, right?

The Chair: Yes.

Mr. Walt Lastewka: And you're on...?

The Chair: Pursuant to Standing Order 75(1), consideration of clause 1 is postponed. We're proceeding to clause 2.

Mr. Walt Lastewka: Okay. There's a motion we submitted earlier, and I think Mr. Murray would like to speak on it.

Mr. Ian Murray (Lanark—Carleton, Lib.): I'll talk to this one, Madam Chairman. This amendment would introduce a definition of commercial activity. We had a number of witnesses who told us that a definition for commercial activity was necessary, from consumer and public interest groups such as PIAC and the B.C. Civil Liberties Association, to industry groups, such as insurers, the bar, and pharmacists. It's an important term because it scopes out the application of the bill, and it's incumbent on us to take up the suggestion.

The amendment would read:

“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character.

The Chair: Is there any discussion or comments on the definition of commercial activity? Mr. Jaffer, do you have any comments? Okay.

(Amendment agreed to)

The Chair: We have to deal with all of clause 2, and there are several amendments to that clause. We're moving on to the second amendment.

Mr. Stan Keyes: Madam Chair, I have a point of order. With the consent of my colleagues on the committee, I'd like to move a motion, if I may.

The Chair: Yes, Mr. Keyes.

Mr. Stan Keyes: In order to facilitate a more productive use of this committee's valuable time, I move that debate on any motions or discussion as it pertains to this bill and its clause-by-clause examination be limited to five minutes.

The Chair: Did everyone understand that motion?

Mr. Dubé.

[Translation]

Mr. Antoine Dubé: That would be an extraordinary precedent if, when someone raises a point of order, the Committee decides to limit debate to five minutes. That has never been seen before. I am vigourously opposed to that. I would like to be given an explanation. What Standing Order is the Member relying on to suggest such a thing, when Standing Order 116 states that no limitation can be placed on the number of times of speaking and the length of speeches? We are talking about the Standing Orders of the House that were duly passed. You cannot limit the length of speeches, because that would be a violation of the Standing Orders.

[English]

The Chair: Mr. Dubé, I can clarify that for the committee. The fact is that this committee can set its own rules on debate. There's a motion—

[Translation]

Mr. Antoine Dubé: Under which Standing Order, Madam Chair?

[English]

The Chair: Under Standing Order 116 it says that if we have a motion that reads otherwise, we can limit debate. We can set our own rules for debate.

Mr. Stan Keyes: I'd like to speak to the motion, Madam Chair.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Just to alleviate any misunderstanding Mr. Dubé may have, of course this does not mean five minutes for the entire bill. This means, as I said, debate on any motion on the clause-by-clause examination of this bill. So if we hit a clause and somebody needs to speak on the clause, that's fine, but they're limited to five minutes in making their representation on that particular clause, or if there's a motion put forward by a committee member, that debate on that motion only take five minutes, and the member be given five minutes to make their case.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair.

I just wanted to point out that during the process on this bill, we made the point that as a government we would make amendments as evidence was produced. This bill has been under a lot of scrutiny by various players. As promised, I did table amendments with this committee as we made changes and heard a lot of information. We've had time to talk back and forth on these amendments.

• 1130

My concern is all the last-minute amendments that have come in. As the parliamentary secretary, I think I've been fair to this committee by tabling with this committee as soon as possible many of the government amendments for circulation. We did that because this being new legislation, it was important to make sure we made continuous improvement to the bill from recommendations received from colleagues on all sides. I would hope that when you're discussing this, you will take that into consideration. There are no surprises.

The Chair: Mrs. Barnes.

Mrs. Sue Barnes: On a point of clarification, I would like to inquire if that's five minutes per speaker, as I understand my colleague to say, and not five minutes of total debate per clause.

Mr. Stan Keyes: That's correct. It's five minutes per speaker.

Mrs. Sue Barnes: Thank you.

The Chair: Mr. Keyes, do you want to reread your motion for the record?

Mr. Stan Keyes: Sure. Does either clerk have this written down?

The Chair: I'm not sure.

Mr. Stan Keyes: In order to facilitate a more productive use of this committee's valuable time, I move that debate on any motions before this committee or any discussions during the clause-by-clause examination of Bill C-54 be no more than five minutes per speaker per clause.

[Translation]

Mr. Antoine Dubé: I have a question, Madam Chair.

[English]

The Chair: We have Mr. Dubé and then Mr. Jaffer.

[Translation]

Mr. Antoine Dubé: Madam Chair, although this does seem a little unorthodox, I would like to put a question to the Member. When he talks about motions, is he including the debate on all clauses of the bill? Does he consider each clause to be a motion, as well as the motions to amend that might be moved, or does he see them as separate?

[English]

Mr. Stan Keyes: The motion says any motion or each clause, five minutes per clause per person.

The Chair: Yes, that's clarified.

Mr. Jaffer.

Mr. Rahim Jaffer: On a point of clarification, Madam Chair, I was under the impression that my colleague from the Bloc had asked for a point of clarification or something on the timing of being able to speak, and yet we're entertaining a motion and you hadn't ruled yet on his point of order or clarification.

The Chair: He was asking for a point of clarification on Mr. Keyes' motion.

Mr. Rahim Jaffer: No, it was even before this motion was introduced by the—

The Chair: No, he started to talk while Mr. Keyes was doing a motion. Once there's a motion on the floor, I cannot interrupt the motion until after the motion is done. He started to talk while Mr. Keyes was doing a motion.

Mr. Rahim Jaffer: I thought it was before the motion.

The Chair: No, it was not. It was during.

Is there an outstanding ruling I haven't made? Mr. Dubé, do you have an outstanding issue?

[Translation]

Mr. Antoine Dubé: It was precisely with that in mind that I posed the question, Madam Chair. The Member referred to motions, but the wording wasn't clear. To my mind, when you talk about motions, that generally means amendments. Does the Chair deem consideration of a clause to be a separate motion or not?

• 1135

[English]

The Chair: As Mr. Keyes has already clarified, if you will notice, each clause is an individual motion of this committee.

[Translation]

Mr. Antoine Dubé: I have another question, Madam Chair. If someone moves a sub-amendment, is that also a motion?

[English]

The Chair: Yes, Mr. Dubé, a subamendment would be a motion.

Is there any other discussion of Mr. Keyes' motion that's before the committee? Mr. Jones.

Mr. Jim Jones (Markham, PC): Yes.

[Translation]

Mr. Antoine Dubé: I want to raise a point of privilege, Madam Chair.

[English]

The Chair: I have Mr. Jones, then you.

[Translation]

Ms. Francine Lalonde: It's a point of privilege!

Mr. Antoine Dubé: Yes, a point of privilege, Madam Chair.

[English]

The Chair: Mr. Jones has the floor and then you, Mr. Dubé.

Mr. Jim Jones: I'll give him it. Let him have the floor.

[Translation]

Mr. Antoine Dubé: Madam Chair, according to the Standing Orders, points of privilege take precedence over any other matter. Just ask your clerk.

[English]

The Chair: Mr. Dubé, when someone has been asked to speak, they have the floor. If you're going to continually interrupt, you show no respect for any members of this committee.

There is procedure in the House. We're bound by the Standing Orders to follow the precedents in the House. One of the Standing Orders is a rule of 48 hours' notice. It had to be in by 2 o'clock on Friday. Let's get the rules straight on that.

I've given you consideration already today to allow you to debate for an hour. So if you have a point of privilege, please make it, or I'm going to go to Mr. Jones.

[Translation]

Mr. Antoine Dubé: Madam Chair, you won't have to expel me. Since both the Committee and the Chair are totally undemocratic, I am leaving this minute. I will not stand by and watch you make a mockery of our democratic system. Thank you very much. Good day.

The Chair: Goodbye, Mr. Dubé.

[English]

Mr. Jones.

Mr. Jim Jones: On Mr. Keyes' motion, I see no reason why we have to limit debate on it. Secondly, on numerous occasions we have asked witnesses and fellow committee members what the rush is in getting this bill passed. Must we have it approved by the end of April? What's the difference in another month or so, where it's slotted in the House calendar? Are we really rushing towards the European Union's directive to meet...? What about another two or three months of consultations?

We've heard from the health industry, we've heard from the Province of Ontario, we've heard from other areas that have concerns with this bill. We've heard from the Canadian Bar Association, which says this is a poorly crafted bill, that it's confusing, and that in the future there could be some problems. So I don't see why we're in a rush, and what another couple of months would hurt, if we could resolve some of the issues that have been brought up by the various people.

In fact, we could use further consultative activities with Industry Canada as a way to ensure ourselves that the bill does not provoke the United States, which accounts for 90% of our electronic commerce. The U.S. is choosing a self-regulatory approach over the legislative approach undertaken by this bill. This government has a terrible track record of preventing trade conflicts, from MMT to Bill C-55. An ounce of prevention—

Mr. Walt Lastewka: On a point of order, Madam Chair, I didn't know we were now getting into dissertations of debate. If Mr. Jones has some points, let him make his points, but if we're going to get into the other items, we're just going to be delaying and delaying. If that's his motive, then I think we're stepping out of line.

Mr. Jim Jones: My motive is not necessarily to delay. I've asked myself this question many times: what is the rush? Are we rushing this because of some European Union directive, or do we want to get things right? We've heard from the health industry, who feel they're not included in this. We've heard from the bar. We've heard from the Province of Ontario that there are concerns. So what is the rush? I feel that an ounce of prevention is worth a pound of cure. I would rather have the government take the time now to clean up Bill C-54 rather than face the consequences in the future, whether it's a year from now or so.

• 1140

There is much to clean up. The Canadian Bar Association described this legislation as poorly drafted and confusing. I assume these are all lawyers sitting at this table here, and their own colleagues—

The Chair: With all due respect, Mr. Jones, in fact the bar association clarified that several times at the committee meeting. I'm not sure if you were there for the entire meeting—

Mr. Jim Jones: I was there, I heard them.

The Chair: Several times they clarified that the brief was written before the amendments, and several times they said they could not have drafted the bill.... When they sat down to try to do it...they don't know if they would have done it any other way. They looked at that brief and they made a number of statements that went counter to what you're suggesting here today. So with all due respect, I would not put words in the bar association's mouth.

Mr. Jim Jones: Then they should never say things like that it's confusing and poorly drafted.

The Chair: Mr. Jones, they clarified that several times at the committee.

Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I'd just repeat again what you have just said. The bar association made it perfectly clear that their remarks were made before the amendments. As I've told this committee, we will make amendments and we will circulate them in advance. We did that. The bar association also made it clear about passing the bill; you might have missed that section, but that's what they said.

For you to say that the Ontario government is going to be doing things after they were witnesses here the other day, and the fact that they haven't.... They've been at this bill for 15 or 16 years, although they tried to deny it and then they came back and confirmed that, yes, it's been in the mill for 15 or 16 years.

The privacy commissioner has made it perfectly clear. Other areas across the country have said we need a privacy bill for Canadians—not delay, delay, delay. Everybody has said there will be a lot of requirement for understanding by Canadians on privacy, especially on the things about which they don't know what's happening.

For you to say anything about the bar association is totally ludicrous.

The Chair: Mr. Lastewka, with due respect to both you and Mr. Jones, we're going beyond the scope of the motion. The motion now before us is about five minutes debate and it goes on to talk about amendments and subamendments. That's the motion now before us. Do you want to speak to that motion, Mr. Jones? I have Madame Jennings who also wishes to speak, and I think that—

Mr. Jim Jones: I don't personally have any reason to speak on any motion for longer than five minutes, but—

The Chair: But you already have.

Mr. Jim Jones: But I am saying that I don't see any reason, on an important issue like this, that we should be trying to put in a rule to limit debate to five minutes on each motion.

The Chair: Okay, I have Madame Jennings and Mr. Lastewka. Madame Jennings.

[Translation]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I'm in favour of the motion for the following reasons. If a member of this Committee is unable to express his agreement or disagreement and give the rationale for his decision in five minutes, I would suggest that the Member go back to school to learn how to present his arguments with greater precision and succinctness. Thank you.

[English]

The Chair: Okay, Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I'd just like to remind Mr. Jones that in the past this committee, prior to legislation, always passed the procedures with regard to how we would proceed at clause-by-clause. Unfortunately this didn't happen in this situation. Motions have come in at the last minute. The fact that we took so much time this morning on a motion.... We understood what was going to happen all the way through. It comes as no surprise that people are leaving the room. There was no debate on changing the clause-by-clause. There was no debate on trying to come up with legislation that would be applicable not only to Quebec but to every province and territory in Canada.

This morning we heard over and over again various items, but never the other items that Professor Frémont said were where federal jurisdiction lies. There was also discussion about where Ontario objected, and I pointed that out already. People from Quebec have said there are certain areas of the Quebec law that need improvement, and there are people from Quebec who said that with harmonizing between the federal privacy commissioner and provincial privacy commissioners, we'll be able to sort it out and Quebec's law will be even stronger.

For that reason, I want to make sure we proceed with the bill. We've had a lot of consultations, and we as a committee and you as chair have put in extra hours. We have heard from the various people across the country. In fact we heard over and over again that we need to proceed and we need to review. The automatic review portion is also in one of the clauses to be amended. So we've listened to Canadians and we've amended the legislation to improve it from their input into this committee. I think we should proceed.

• 1145

The Chair: Thank you.

I'm going to call the question on Mr. Keyes' motion.

Mr. Jim Jones: I would like a recorded vote, please.

(Amendment agreed to: yeas 8; nays 2)

The Chair: We have another amendment before us on clause 2. Mr. Lastewka, I'm not sure who's speaking to that.

Mr. Walt Lastewka: Madam Chair, I move the amendment. I think that's the procedure, that I have to move each one of them. Is that correct?

The Chair: Yes.

Mr. Walt Lastewka: I move the amendment.

In speaking to the amendment, I think we've heard a number of people express their concern on that, and I think it's self-explanatory.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We will now move on to amendment G-3. Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I move amendment G-3: that clause 2 be amended by deleting lines 9 to 11 on page 3.

(Amendment agreed to)

The Chair: Are there any questions or comments on clause 2? This is the definition section of the bill. Mrs. Barnes.

Mrs. Sue Barnes: Yes, Madam Chair, I want to speak to this, because many witnesses did talk about what we call the purpose clause, clause 3. This amendment would do several things—

The Chair: Madam Barnes, we're dealing with clause 2 as amended.

Mrs. Sue Barnes: Okay, sorry. I was ahead of you.

(Clause 2 as amended agreed to)

(On clause 3—Purpose)

The Chair: I understand there is an amendment for clause 3, G-4. Mr. Lastewka or Mrs. Barnes, I'm not sure who is speaking to that. Mr. Lastewka, are you moving that?

Mr. Walt Lastewka: Yes, I'll move it. Mrs. Barnes is going to speak to it.

The Chair: Mrs. Barnes.

Mrs. Sue Barnes: I'll just pick up where I left off. My apologies for being out of place.

The Chair: My apology, Madam Barnes.

Mrs. Sue Barnes: This amendment does several things. It makes the right of privacy apply to all individuals, not just Canadians, thus protecting all information that comes into this country. It puts in a reasonable person test—that data will be collected, used, and disclosed for appropriate purposes. It recognizes the right to privacy and business needs, both of those. It clearly sets out that the bill's purpose is to set the rules to govern all of this.

It's a rework of the purpose clause. It provides a balance—we suggest the right balance—and sets the right context. I think our stakeholders' interests are better balanced or more fairly balanced by the revision of this clause. So I submit it for the committee's consideration.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 3 as amended agreed to)

Mr. Janko Peric: Point of order.

The Chair: Mr. Peric.

Mr. Janko Peric: Madam Chair, could the chair stop calling the opposition members one by one? When you ask the question, we have the opportunity to say yes or no. Thank you.

• 1150

An hon. member: It's at the discretion of the chair.

The Chair: I apologize, Mr. Peric. I was just noticing people flipping through the pages and wanted to make sure everyone was at the same stage. Since these are in fact government amendments, I wanted to give everyone equal opportunity. We do have the officials with us to ask any questions anyone may have.

We're now moving to clause 4. I understand there are two amendments.

Mr. Lastewka.

(On clause 4—Application)

Mr. Walt Lastewka: I move that clause 4 be amended by replacing lines 25 to 28 on page 3 with the following: “ties; or”. The amendment has been circulated well in advance.

The Chair: Any comments on that?

Mr. Walt Lastewka: This is just a technical amendment recommended by our justice department. It doesn't affect any other coverage of the bill.

(Amendment agreed to)

The Chair: There's a second amendment. Mr. Lastewka.

Mr. Walt Lastewka: Marlene Jennings is going to move this one.

Ms. Marlene Jennings: I move that clause 4 be amended by adding after line 10 on page 4 the following.... You'll find it in G-6.

The Chair: You'll speak to that as well, Madam Jennings?

Ms. Marlene Jennings: Yes. This amendment is a very important one. As we all know, the whole issue of the use, collection, and transmission of personal information in a technological age means that more and more information is crossing borders, moving from one organization to another. The bill recognizes the importance of privacy and the control an individual has over personal information.

This particular amendment recognizes the primacy of this legislation and the protections contained therein for the protection of personal information—the primacy of this proposed act over any subsequent act adopted by Parliament unless there's a notwithstanding clause in that subsequent act, which would ensure that debate has taken place on that subsequent act as to whether or not it should be withdrawn from the protections that are found within here. It shows the primacy of this act. More importantly, it shows that our government is concerned about the issue of privacy, the issue of individual control over our personal information and ensuring that there are serious controls put into place so that individual Canadians and other individuals—because the act doesn't just cover information for Canadians—have that control.

I think it's very important, and I would ask that everyone on this committee support this.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 4 as amended agreed to)

(On clause 5—Compliance with obligations)

The Chair: On clause 5, we have two proposed amendments. We have one from Mr. Jones.

Mr. Jones, did you wish to make your amendment?

Mr. Jim Jones: Yes. This amendment will require that changes to recommended practice would occur only through legislative amendments. The rationale is that any changes to the core obligations of the bill in schedule 1 should be subject to parliamentary oversight through legislative amendments. This amendment would obligate the federal government to subject changes to schedule 1 to proper consultation with the private sector and other governments.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: I just wanted to bring forward to the committee that there is a government amendment that deletes lines 18 to 21, which will then put it into a position that all changes to CSA schedule 1 would become an act of Parliament. So there is an amendment to delete that paragraph.

The Chair: In clause 27?

Mr. Walt Lastewka: In clause 27.

Mr. Jones.

Mr. Jim Jones: I think I have this coming up a few times. I was saying that wherever this comes up, we should be inserting this clause.

Mr. Walt Lastewka: There's a government amendment to delete lines 18 to 21 on page 17.

The Chair: Maybe, Mr. Lastewka, officials could just explain the effect of what that proposed deletion would be.

• 1155

Ms. d'Auray.

Ms. Michelle d'Auray (Executive Director, Electronic Commerce Task Force, Department of Industry): Essentially, it would make any changes to any part of this legislation, which includes schedule 1, subject to an act of Parliament or to a debate in Parliament. So we remove schedule 1 from the regulations or the order-making powers. That's what this amendment does.

The Chair: Mr. Jones, if you accept the government's proposed amendment later on, do you still want to move your amendment? Do you want to withdraw it perhaps?

Mr. Jim Jones: I'll support the government amendment.

The Chair: So will you withdraw your amendment?

Mr. Jim Jones: Yes.

The Chair: There is another amendment on clause 5, G-7.

Mr. Lastewka.

Mr. Walt Lastewka: I move that clause 5 be amended by adding, after line 16 on page 4, the following:

(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

The Chair: Is there any discussion on this?

We'll have Mrs. Barnes and then Mr. Jaffer.

Mrs. Sue Barnes: Madam Chair, this is necessary in light of how we just amended the purpose section of the bill to incorporate the appropriateness in the circumstance. It meets the needs of the discussion that consumer groups gave and it allows the commissioner in the court to review the new requirement in this light.

I believe it's a very important change because most of the requirements in this schedule are linked to the purpose for which the information is collected. The justification of purpose tightens the entire schedule, so therefore I'm very happy that the government is making this amendment.

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer: Perhaps I could get some clarification. The part I'm not too clear on is how you define the phrase “a reasonable person would consider are appropriate in the circumstances”. Perhaps I'm not understanding it, but if I could get some clarification on disclosing personal information, only for the purposes that a reasonable person would consider appropriate, how would we define that?

Ms. Michelle d'Auray: I will ask Ms. Heather Black to respond to that.

Ms. Heather Black (Counsel, Commercial Law Division, Department of Industry): Madam Chair, the reasonable person is a well-established test in law. I do believe any law student who studied in the common law will recognize the man on the Clapham omnibus as the original reasonable person. It's just a base line.

Mr. Rahim Jaffer: I'm not a lawyer, thank God.

The Chair: The chair takes exception to that comment.

Madame Jennings.

[Translation]

Ms. Marlene Jennings: I simply wanted to emphasize the importance of the amendment to Clause 5.

We heard a number of witnesses from Quebec, including Action Réseau Consommateur, which raised several important points. One of the most important of those was the need to delete the term “Canadian” to ensure that it does not only apply to Canadians. Secondly, we were asked to create a reasonability test with respect to the need to use, store and pass on personal information. Their testimony reflected the views of other consumer or consumer protection groups in Canada.

As Mrs. Black mentioned, the definition of the term “reasonable” is well known in law.

• 1200

Mr. Jaffer, everybody can't be a lawyer. I'm certain that you are amply qualified in your own profession, but this is one of the fundamental tests that any law student must be aware of, not only as regards the common law but also the civil law.

The Commissioner would certainly know how to apply such a test when complaints were made against any company subject to the legislation.

[English]

The Chair: Thank you, Ms. Jennings.

Seeing no other comments, shall the amendment carry?

(Amendment agreed to)

(Clause 5 as amended agreed to)

(Clause 6 agreed to)

(On clause 7—Collection without knowledge or consent)

The Chair: We have several amendments on clause 7 and we're going to have to work through this very carefully.

The first amendment we have is Mr. Jaffer's. Mr. Jaffer, do you want to move that amendment?

Mr. Rahim Jaffer: Yes, I would like to move this amendment. It's fairly straightforward. It just clarifies the right of individuals to disclose public information that's already in the public domain. So it just clarifies the difference there once again between public and obviously private information.

Mr. Walt Lastewka: On a point of clarification, Madam Chair, it was my understanding that the point Mr. Jaffer was trying to get across is similar to the motion tabled on March 3.

Mr. Jim Jones: Is that amendment G-8?

Mr. Walt Lastewka: I think the G-9 amendment, which was tabled earlier, covered those items that we were concerned with on publicly available information and declaring publicly available information, and so forth. At least that's how I read it. So doesn't amendment G-9 cover Mr. Jaffer's motion?

The Chair: Mr. Jaffer, would you be willing to withdraw your motion?

Mr. Rahim Jaffer: Yes.

Mr. Walt Lastewka: Thank you.

The Chair: We have amendments G-8 and G-9. I believe amendment G-8 is Mr. Lastewka's motion.

Mr. Walt Lastewka: Can I just refer to amendment G-8 in my motion, rather than reading it all?

The Chair: You don't have to read it all. You just have to move it.

Mr. Walt Lastewka: I so move, Madam Chair.

The Chair: Do you have any comments?

Mr. Walt Lastewka: No, we've had enough discussion on that one.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On amendment G-9, we have Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I move amendment G-9.

The Chair: Is there any discussion, Mr. Lastewka?

Mr. Walt Lastewka: It captures basically what Mr. Jaffer was trying to get across earlier. During our other discussions we talked about how we could capture the publicly available information and so forth.

The Chair: Any other discussion?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Jaffer, I am assuming that you don't wish to proceed with your second amendment then as well, because that basically is the same.

Mr. Rahim Jaffer: That's right, yes.

The Chair: So you withdraw that?

Mr. Rahim Jaffer: Yes.

The Chair: We have amendment G-10. Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I move amendment G-10, please.

The Chair: Do you have any comments on amendment G-10?

• 1205

Mr. Walt Lastewka: None, other than that we heard from a number of individuals during the course of our briefings, including the Ontario privacy commissioner. We've made the adjustments from the information we heard.

The Chair: Any other comments?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We have Mr. Jones.

Mr. Jim Jones: Which one are you on?

The Chair: We are on PC-2. I think that's you.

Mr. Jim Jones: Yes.

The Chair: It's on page 24 in this document with all the amendments.

Mr. Jim Jones: I'm trying to find it. I didn't mark it.

The Chair: Clause 7 on page 5, line 38.

The change, I believe, is to add the words “or to another organization”. I think that's to sum up the—

Mr. Jim Jones: The lines don't add up in the act.

The Chair: Really?

Mr. Walt Lastewka: Mr. Jones, maybe I can help you here. Under our amendments, under paragraph 27(1)(a), I think we took care of the problem you were trying to get at. Your amendment talks about anybody or another organization, and that could be anybody. We've tried to make some changes in paragraph 27(1)(a) later on.

Mr. Jim Jones: Is this page 81?

The Chair: No, that is Ms. Jennings'.

Do you know what the number of the motion is, Mr. Lastewka? Are you referring to G-25 or G-24? It's G-24, I believe.

Mr. Jim Jones: If I can interject, this book does not match up to the line numbers we kept getting every week. That's why I couldn't find it when you were saying line 28, clause something. This book, which we've been handed out every day as a reference, doesn't match up. There must have been a reprint of the act.

The Chair: That's why we have the blue book and the black book. In fact, the black book does have the right one. The blue book probably has the one that was originally sent out.

Mr. Jim Jones: Yes, that's right.

The Chair: I apologize, Mr. Jones, if we didn't make that clear earlier on in our discussions.

Mr. Jim Jones: I'm just trying to find where I am.

The Chair: Does that mean your amendment is referring to different lines?

Mr. Jim Jones: No, not in this one. Now I see it.

Which one are you saying, Walt?

Mr. Walt Lastewka: I want to make sure I captured your amendment.

Mr. Jim Jones: The explanation for what I was trying to do, and you tell me if that's what yours was trying to do, is that this would clearly allow an organization to share information with another organization to assist in the detection and prevention of crime. At present, Bill C-54 allows organizations to share information only with an investigative body. The rationale of this amendment is that it would help give an organization such as insurance companies the ability to disclose personal information to detect, prevent, and fight crime. The Quebec privacy legislation has a clause allowing for the collection, use, and disclosure of personal information without consent for the purpose of detecting and preventing crime. There have been no reports of problems. Moreover, a recent review of the law by the Quebec National Assembly left this law unchanged.

• 1210

The Chair: Maybe the officials can speak to that.

Madame d'Auray.

Ms. Michelle d'Auray: In our opinion, to make it a disclosure to any organization is a very broad term, whereas we define “investigative body” under clause 27, which would allow us to cover a number of the organizations, as requested by the insurance companies, for example. So the issue of information related to fraud, which is in fact an offence under the law of Canada or a province, would be covered at that point.

That's why, in our opinion, the organization, without a listing or without a specification, is extremely broad and would allow for disclosure without consent in an extremely broad fashion. So the investigative body as defined in the regulation or as listed in the regulation would be sufficient to cover the insurance requirements.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: I think that covers your area for allowing investigative units to do their work, as we heard at the committee. But they would all be listed in the regulations to make sure it wasn't just anybody who was doing an investigation.

Mr. Jim Jones: Your motion 81, you said, or 27, is that—

The Chair: I don't think it's 81.

Mr. Jim Jones: No, that was page 81.

The Chair: I don't think it's page 81 either, is it? I think it's page 72.

Mr. Walt Lastewka: G-24.

The Chair: G-24?

Mr. Jim Jones: No, he said G-27.

Mr. Walt Lastewka: It's under clause 27 on page 17.

The Chair: Mr. Lastewka, could you please try to find it in this, which is what everyone is using. I believe it's on page 72. G-24 is the government amendment you're speaking of. You're talking about clause 27.

Maybe Madame d'Auray wishes to speak to that. I understand there is no government amendment defining “investigative body”; it will defined by the regulations.

Madame d'Auray.

Ms. Michelle d'Auray: The provision for defining or listing an investigative body is already under subclause 27(1). What we have done in previous amendments that have been passed is to allow an organization to collect. This is making a reference to clause 7, lines 30 to 33, which allows the collection without the knowledge and consent of the individual if it would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province. This allows for the collection of that type of information, which again was a request that was made by a number of the insurance companies. The companies can then disclose them under 7(3)(d) to an investigative body, which is then listed under the regulation under 27(1).

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer: If I could just get a clarification on which organizations are included or excluded within that investigative body framework. Is there some indication of which organizations would be excluded from that?

Ms. Michelle d'Auray: For example, one of the comments made by a number of the insurance bodies was that their investigative body would be listed by regulation, and once the identification of the body by regulation was established, the list would obviously become public and a time period for comments provided. But we haven't defined it so as to allow us to list investigative bodies that are in the private sector as well as those of a law enforcement nature.

The Chair: Mr. Jones.

Mr. Jim Jones: Could I get clarification on clause 27? I've been told that clause 27 only allows organizations to receive information, not share it with other insurance companies. The amendment I'm proposing accomplishes that.

The Chair: Madame d'Auray.

Ms. Michelle d'Auray: Paragraph 7(3)(b) as amended allows for the collection of that information and the transmittal of that information under paragraph 7(3)(d) to an investigative body.

The Chair: Ms. Jennings, do you wish to comment?

Ms. Marlene Jennings: No.

The Chair: Okay, thank you.

• 1215

Mr. Jones, does that clarify it for you?

Mr. Jim Jones: Not really.

The Chair: Is there anything else anyone has to add to this? Mr. Jones, did you have any more questions?

Mr. Jim Jones: Just say that again, what you just said.

Ms. Michelle d'Auray: The amended 7(1)(b) allows an organization to collect—

Mr. Jim Jones: Whose amendment is that and what page is it on?

Ms. Michelle d'Auray: I believe it's G-8.

Mr. Jim Jones: What page on this thing?

Ms. Michelle d'Auray: Page 17.

Mr. Jim Jones: So you're saying this amendment here accomplishes exactly what I'm trying to accomplish.

Ms. Michelle d'Auray: No. It allows an organization to collect information “for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province” in which fraud, for example, is an offence of the law or a breach in the law, and it allows the organization to disclose that information under 7(3)(d) to an investigative body as listed by regulation.

Mr. Jim Jones: But not to another insurance company.

Ms. Michelle d'Auray: That's correct.

Mr. Jim Jones: We had an example from the insurance companies when they were here, where, for example, the only way they found out about a fraud case—I think it was a diamond ring—is because the investigator left one insurance company and went to another insurance company. So without sharing of information, how can the insurance companies discover fraud in a situation like that?

Ms. Michelle d'Auray: Insurance companies have, under their investigative bodies, databases that give out patterns, or that are depersonalized, which allow an assessment of an individual based on statistical information as to whether or not insurance premiums should be of x rate or not. But we protect the personal information of the individual and allow the organization to consult the investigative body on depersonalized data, which is quite extensive and quite precise.

Mr. Jim Jones: But in that example I gave you, I believe that probably the insurance companies passed the information on the stolen ring or the fraudulent transaction into another database—not their own, into another database—and then somebody else from another company put their information on some claims or something into that other database. You're saying they can't do that.

Ms. Michelle d'Auray: No, we're saying they can transmit the information to their investigative body that holds the database, and that investigative body draws statistical profiles that are depersonalized, that is, the name of the individual is not attached to it. But any insurance organization can consult the depersonalized database. What we do not allow is the specific exchange of information on a specific individual between two organizations unless consent has been given. But we allow for the investigative body to collect the data from the organization, to depersonalize it and create a statistical pattern, which in most instances is sufficient for insurance companies to be able, on consultation of that database—which is depersonalized, it doesn't have a specific name—to draw the inference of whether or not to insure that person or the premium rates.

Mr. Jim Jones: So this is what G-8 allows.

Ms. Michelle d'Auray: G-8 allows for the collection, 7(3)(d) allows for the disclosure to the investigative body, and 27(1) allows for the listing of those investigative bodies.

Mr. Jim Jones: I have to believe you.

The Chair: Ms. Jennings.

Ms. Marlene Jennings: Could I give you an example. If we use the same example the insurance companies use—that someone was working with one insurance company, there was a claim made for a particular item on the basis that it was stolen, that company paid out, the employee who handled the case moved to another insurance company and by coincidence a claim came through and it rang bells and that individual realized they had dealt with a similar claim involving members of the same family and the same item—under this legislation, with the amendments the government is putting through to address the concerns of the insurance company, that individual would go to the fraud department, which would have been listed, by regulation, as an investigative body, and would say, “I've received this claim. I believe this same individual, or the brother or the sister, already put forward a similar claim at another insurance company.” They would be able to do that because it's an offence. What they're talking about is an offence.

• 1220

The investigative body would then be able to go to the original insurance company and require that they disclose personalized information about an individual who had filed a previous claim that had been settled.

The Chair: Did officials agree with that, Madame d'Auray?

Ms. Michelle d'Auray: Yes.

The Chair: Mr. Jones, does that satisfy you?

Mr. Jim Jones: I don't know.

Some hon. members: Oh, oh!

The Chair: Do you have any other questions?

Mr. Jim Jones: No. I guess I have a chance in the House to.... I'm not sure. You're quoting a whole bunch of clauses to me and saying it satisfies what we're trying to accomplish here and I....

Ms. Michelle d'Auray: May I?

The Chair: Madame d'Auray.

Ms. Michelle d'Auray: What we have tried to achieve is a means by which companies or organizations can protect themselves against fraud by providing information to and through investigative bodies.

What we also have to keep in mind is the ability of an individual to control that information so that it doesn't go from one organization to the other carrying a baggage of information without them being able to redress it or to stop it at some point. The investigative body, if you will, is the control mechanism for that. If you allow for the transfer from organization to organization to organization without the ability, let's say, for an investigative body to make an assessment of whether that is a valid claim for fraud, you're just going to perpetuate the transfer of the information without some kind of assessment of whether it will assist in the prevention of fraud or the detection of an offence or not.

The investigative body is kind of the sorting...they carry on file the personalized data. But if you allow every organization to share that, as an individual, then, I'm going to have to try to find out who else has my data, and I may, as an investigative body, actually find that the claim is valid. An organization may not take that issue away. I may leave a trail of perception of fraud as an individual where that is not the case.

That's why we've tried to build in, if you will, an ability for an organization to disclose it to protect the organization, but also an ability for the individual to not be deemed to be fraudulent if that's not the case.

That's why we're not allowing the transfer of information from one organization to the next without an investigative body to actually control and manage that information.

Mr. Jim Jones: Can I ask a question on my amendment? What is wrong with my amendment? You're saying that exactly what I'm trying to accomplish in my amendment is accomplishable in these other amendments you're putting through. What is legally wrong with this amendment?

Ms. Michelle d'Auray: In fact, your amendment, instead of limiting the disclosure to an investigative body, broadens it to every organization.

Mr. Jim Jones: When you say “every organization”, who do you mean?

Ms. Michelle d'Auray: Well, let's say from one insurance company to another insurance company, as opposed to...or any other organization. You haven't defined the organization to which you would be disclosing it. It could be any organization.

Mr. Jim Jones: How does the—

The Chair: Mr. Jones, just for clarification, organization is already defined in clause 2 of this bill and includes “an association, a partnership, a person and a trade union”. When you use that word, you're referring to all of those people that fall within, and a person is technically a corporation.

Madame d'Auray.

Ms. Michelle d'Auray: Because the word “organization” is in fact broad, it applies not just to insurance; it applies to basically all organizations. So any organization can disclose to any other organization. Your amendment broadens the field in such a way that there's no restriction on the ability to disclose information to any other organization that relates, in a sense, to the laws of Canada.

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So if in my information I'm deemed to be “fraudulent” by an insurance company, nothing in your amendment prevents that company from disclosing my information to every single organization with whom I may be doing business, because it's any organization.

Mr. Jim Jones: We've heard from the insurance industry that there's a $1.3 billion industry in fraud, and we're just trying to make it easier to detect fraud. I would appreciate it if you could help me with what we're trying to accomplish here.

The Chair: Madame d'Auray.

Ms. Michelle d'Auray: I think we have looked at the issues that have been raised by a number of organizations, insurance companies among them. That's why we introduced amendment G-8 on page 17, which allows for the collection of information without the knowledge or consent, if the collection is reasonable for purposes related to investigating a breach of an agreement or contravention of the laws of Canada or a province. The previous clause was extremely narrow and would not allow for the collection of that information.

If you match that to the disclosure capacity, we have allowed and found a way for those organizations to disclose the information they collect to their investigative bodies, so they can draw their statistical profiles and allow them to set claims and determine what types of people would be fraudulent or not.

Mr. Jim Jones: So it's fair to say you believe you've addressed the problem.

Ms. Michelle d'Auray: Yes.

Mr. Jim Jones: Okay. I'd like to discuss it with you more off-line. Then I'm prepared to come back with another amendment if it's not satisfactory.

The Chair: Mr. Jones, will I proceed to vote on your amendment, or are you withdrawing your amendment?

Mr. Jim Jones: I think I will withdraw it based on the information. I am unfortunately not a lawyer either. I trust what she's saying and would just like to consult and make sure it does satisfy. If it doesn't, I will come back with another amendment.

The Chair: We will now move to amendment G-11. Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I move G-11.

The Chair: Are there any comments about G-11, Mr. Lastewka?

Mr. Walt Lastewka: I think we made reference to CSIS in it. This refers to threats to the security of Canada and doesn't point specifically to the CSIS Act.

The Chair: Are there any other comments or questions?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Jaffer, I believe you're going to withdraw that one as well.

Mr. Rahim Jaffer: Yes, it's been taken care of.

The Chair: Yes, it's the same as R-1 about public domain, which was covered under one of the other amendments—G-8 or something like that.

Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I would like to move amendment G-12.

The Chair: Are there any comments, Mr. Lastewka?

Mr. Walt Lastewka: It repeats the additions in paragraph 7(3)(f) and limits the use of personal information for research purposes, as we had discussed.

The Chair: Are there any other comments or questions on G-12?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I move amendment G-13.

The Chair: Are there any comments, Mr. Lastewka?

Mr. Walt Lastewka: It basically removes the requirement to designate by regulation institutions whose function is conserving the history or archival importance. It helps to remove an unnecessary regulatory obligation and puts it in the legislation.

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(Amendment agreed to—See Minutes of Proceedings)

The Chair: Moving on to PC-3 and G-14, they are basically identical amendments. Just to let the government members know, if you defeat the amendment by Mr. Jones, you can't move your amendment. I would therefore assume, Mr. Lastewka, that you're withdrawing your amendment in favour of Mr. Jones' amendment.

Mr. Walt Lastewka: I would be supporting Mr. Jones, Madam Chair.

Some hon. members: Hear, hear!

The Chair: Mr. Jones, would you like to move your amendment?

Mr. Jim Jones: I'll move it.

The Chair: Is there any discussion on your amendment, Mr. Jones?

Mr. Jim Jones: No, it's self-explanatory.

The Chair: Are there any other comments?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment G-14 is withdrawn, so we move on to PC-4.

Mr. Jones.

Mr. Jim Jones: I'll move this amendment.

The Chair: Is there any discussion of it, Mr. Jones?

Mr. Jim Jones: This would allow an organization to share personal information, without the consent of a person, with a union if it relates to the collective agreement.

The Chair: Mr. Lastewka, do you have any comments?

Mr. Walt Lastewka: Yes, I do.

We've been talking about not having any exceptions, but we're starting to get into exceptions. Where does it all end? I have a little bit of a difficult time in supporting something that would start the exceptions rules.

The Chair: Do the officials have any comments on that amendment?

Madame d'Auray.

Ms. Michelle d'Auray: In terms of employee-employer relationships, there are procedures that exist that govern access to personal information. If a complaint is made, under his existing rules and procedures in the bill the commissioner would refer the complainant to the existing procedures or grievances. He or she then has the ability to investigate. What this would do is limit Bill C-54 in terms of employees having access to information. It would or might make personal information an issue in a bargaining discussion, and we would not want the provisions of Bill C-54 to be subsumed to collective agreements or negotiations.

There are sufficient provisions within the bill right now to look at existing grievance procedures or existing arrangements in governing employer-employee relationships in federal works, businesses, and undertakings. The only employer-employee relationship that this bill governs is those of federal works, businesses, and undertakings.

Mr. Jim Jones: I'd like a recorded vote.

The Chair: Mr. Jones would like to have a recorded vote on PC-4.

(Amendment negatived: nays 7; yeas 2—See Minutes of Proceedings)

The Chair: Are there any other comments or questions on clause 7? We've had a lot of testimony before us on clause 7.

Mr. Jaffer.

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Mr. Rahim Jaffer: I just have one question. It has to do with the last part of clause 7, which says, “required by law”. If I could just get some clarification, is there any contradiction there with a government amendment that was moved, amendment G-6? It seems to me that there might be a bit of a conflict with amendment G-6, which was initially moved with that last part of clause 7.

The Chair: Just to clarify, though, are you referring to subparagraph 7(3)(i)?

Mr. Rahim Jaffer: Yes, that's the one.

The Chair: Madame d'Auray or Ms. Black.

Ms. Heather Black: Madam Chair, I take it that the other clause you are referring to is the primacy clause. The provisions of this part prevail over subsequent acts of Parliament. In 7(3)(i), it's mechanical. It's a question of what happens when you're looking at disclosure without knowledge and consent. If that disclosure is required under some other law, then the organization may make that disclosure. I don't think the primacy clause has any impact on it.

The Chair: Does that satisfy you, Mr. Jaffer?

Mr. Rahim Jaffer: Yes, I think so.

The Chair: Okay, then I just had one quick comment.

There were a number of witnesses who came before us and asked about a grandfathering clause. Maybe you could just address that. Why don't we need one?

Ms. Michelle d'Auray: With regard to the grandfathering clause, it is assumed that the information that is currently collected would be covered up till now. If you are using the information for other purposes, you would then have to go back to the individual to make sure the consent is obtained for the new purposes. Any new collection is automatically covered by this legislation.

The Chair: Thank you.

(Clause 7 as amended agreed to)

(On clause 8—Written request)

The Chair: Moving on to clause 8, I believe we have some amendments, beginning with PC-5.

Mr. Jones.

Mr. Jim Jones: Yes, I'll move this amendment. The explanation is that this would limit any fees charged by an organization for those seeking personal information to the same level of fees charged by government organizations. The rationale is that charging fees for someone's personal information, if not properly regulated, could become a barrier to access. Even as amended, Bill C-54 continues to recognize the expenses incurred by an organization responding to requests for personal information.

The Chair: Are there any other comments?

Madame d'Auray, maybe you could address this.

Ms. Michelle d'Auray: The government has tabled an amendment to remove the item under paragraph 9(3)(b), which is the concept of an organization charging prohibitive costs. It has left to subclause 8(6) the idea that an organization can inform the individual of the cost of providing the information, although access under the schedule is provided at minimal to no cost. If there is a cost to be charged or a cost incurred by the organization with regard to the sorting of the information—say there are archival records that are paper-based and do require some cost—the organization can put them forward. These issues are also subject to complaint to the commissioner, and therefore to investigation, and they can also be taken to court if the complainant so desires or the commissioner wishes to do so.

Mr. Jim Jones: Which amendment is that? Where is it? You said there was an amendment?

Ms. Michelle d'Auray: There is an amendment to delete. It's in your package, if I can find the reference.

It's G-17, on page 41.

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Mr. Jim Jones: G-17, on page 41.

The Chair: Mrs. Barnes, did you wish to—

Mrs. Sue Barnes: I just want to query the officials as to whether the reasonable person test would also apply in this instance. Normally, we're thinking it's one way under the act, but does it also go the other way? I just ask for a clarification there.

The Chair: Madame d'Auray.

Ms. Michelle d'Auray: It doesn't specifically refer to this, but you have the schedule that says, “at minimal to no cost”, which is the first instance. If there are costs, which are what subclause 8(6) covers, that allows an organization to identify the costs but also inform the individual. If the individual does not agree with the costs, that issue can be taken to the privacy commissioner. More often than not, it will be arbitrated between the commissioner and the organization.

What we have seen to date with existing legislation with most of the companies or organizations is that when the commissioner does step in, the costs are reduced significantly or there are minimal to no costs provided. There are some instances, however, in which there would be a requirement. An electronic search could not be made, or there is an extensive paper search that has to be undertaken by which costs would be deemed to be reasonable.

Mrs. Sue Barnes: Thank you.

Mr. Jim Jones: Even with your amendment, couldn't it be possible that the costs would exceed what is currently regulated by the federal and provincial governments?

Ms. Michelle d'Auray: As in terms of the photocopy costs per page?

Mr. Jim Jones: Yes, their fees.

Ms. Michelle d'Auray: The commissioner would immediately step in.

Mr. Jim Jones: Why would we want the commissioner to step in? Why wouldn't we just have something in the act to say what the costs should be?

Ms. Michelle d'Auray: It actually caps the notion of fees, and you may in fact have some circumstances in which an organization can legitimately identify the cost. There may be a means at that point for the commissioner or other sources of funding to be provided. If you put a cap on it, you could in fact end up costing organizations a fair amount of money, particularly in having to do a search when, for example, there is a significant archival search that needs to be done and the database is not made electronic.

What we also find is that the government amendment to paragraph 9(3)(d) prevents a company or organization from refusing access on the basis of prohibitive costs. So, if you will, the assumption is that the costs will never be too prohibitive to provide access to information, and you also have the schedule, which already clearly says that it should be at minimal to no cost to the individual.

The Chair: Mrs. Barnes.

Mrs. Sue Barnes: I just want to also put on the table to my colleague across the floor that there may be instances in which some provinces have costs that other people do not consider reasonable. Photocopying costs in some provinces, I believe, are not as reasonable as they could be at this point in time. There are some ways in which your clause and your intention in the clause actually could be counterproductive to the actual fact of the reality that may be going on in some jurisdictions. For that reason, I won't be supporting it.

The Chair: Are there any other comments or questions?

An hon. member: Can we have a recorded vote?

The Chair: We're taking a recorded vote on PC-5, Mr. Jones' amendment.

(Amendment negatived: nays 8; yeas 2—See Minutes of Proceedings)

The Chair: Are there any other questions on clause 8?

(Clause 8 agreed to)

(On clause 9—When access prohibited)

The Chair: We have several amendments to clause 9, beginning with Mr. Lastewka and G-15.

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Mr. Walt Lastewka: Madam Chair, I move amendment G-15.

The Chair: Are there any comments?

Mr. Walt Lastewka: Madam Chair, we heard about a number of situations in which it is desirable that organizations be able to refuse disclosure to an individual. This will make it possible, but also will require notification to the commissioner.

The Chair: Are there any comments on amendment G-15?

An hon. member: No comments.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We next have amendment G-16.

Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I move amendment G-16.

The Chair: I believe this is a technical amendment to have the French match the English.

Mr. Walt Lastewka: It should be the French translation, yes.

Mr. Jim Jones: What is amendment G-16?

The Chair: Madame d'Auray, maybe you could just tell us what amendment G-16 is about.

Mr. Jim Jones: I have both of them in French.

The Chair: It's the same.

Ms. Michelle d'Auray: They are amendments to the French text, in order to make them consistent with the English. They're to correct drafting imprecisions.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We move to amendment G-17.

Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I move amendment G-17.

The Chair: Is there any discussion on what you're doing, Mr. Lastewka?

Mr. Walt Lastewka: It basically removes line 16 on page 8, deleting paragraph 9(3)(d). It will remove the ability to deny access because of excessive costs. It goes back to the previous discussion Mr. Jones had with officials.

The Chair: Are there any other comments on amendment G-17?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Jones, do you wish to move amendment PC-6?

Mr. Jim Jones: Is it fair to say that this has been covered by the previous motion here, the government motion? If so, I withdraw it.

The Chair: PC-6 is withdrawn.

Are there any other questions on clause 9?

(Clause 9 as amended agreed to)

(Clause 10 agreed to)

(On clause 11—Contravention)

The Chair: For clause 11, I have motion REF-4.

Mr. Jaffer.

Mr. Rahim Jaffer: This is pretty straightforward. It's just an amendment to replace lines 4 and 5 with “Division 1”, and to take out what follows that. I think what follows just complicates it. There's no need to have that in there.

The Chair: Madame d'Auray, could you respond to that?

Ms. Michelle d'Auray: We believe that would limit the ability of complaints to be filed with the commissioner, because there are some recommendations in schedule 1 that would be of interest to the commissioner and to organizations in terms of being able to carry out better information management practices. The bill is constructed so that the filing of complaints, the investigations, and the audits can be done on all aspects of the schedules. Where the limitations are put in, that is where an issue can be taken to court. They are, strictly speaking, on the obligations rather than the recommendations.

If you're looking at the overall management practice of an organization, in some instances it is difficult to sever the recommendation for the purposes of a complaint or an audit. Speaking to the complainant, our view is that it is of better interest both to the organizations, the commissioner and the citizen, the individual, to be able to file a complaint to the commissioner on all aspects of the schedule.

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Mr. Rahim Jaffer: I guess my only concern was that in looking at that, couldn't it encourage people to abuse that when it comes to the complaint process?

Ms. Michelle d'Auray: Under paragraph 13(2)(d), on page 11, it says that he is not to file a report if “the complaint is trivial, frivolous or vexatious or is made in bad faith”. We have therefore provided for excessive complaints or frivolous complaints, and the commissioner can deal expeditiously with those issues.

Mr. Rahim Jaffer: But doesn't this just provide extra balance by limiting it? Allowing this change doesn't necessarily take away from the bill, I would imagine.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: By doing what you're doing, you're taking away from the bill.

The Chair: Madame d'Auray.

Ms. Michelle d'Auray: The schedule provides both the companies or organizations and the commissioner with guidance on how to comply with the obligations. There are some very good recommendations in there. There's some counsel, if you will, that is provided.

The schedule was developed by consumers organizations and some government or some public representation. We are of the view that it provides the core of the legislation and the core of the key element for privacy protection. It allows for best practices to emerge as a result of complaints being filed and organizations being sensitized to different information management practices or better information management practices. The entire schedule is a better application of that than just severing out bits and pieces would be, in order to deal with complaints, investigations, and audits.

When there is a direct issue of an order or a fine, those issues are dealt with on the obligations, strictly speaking, and they go to the courts. When there is a distinct problem for the organization or the complainant, for example, the court is deemed to be the best place for that to be resolved. Through the power of education as well as the power to review complaints, the commissioner then has the power to look at the entire application of the schedule and therefore allow for a better balance of both the obligations and the best practices.

The Chair: Do you withdraw your...?

Mr. Rahim Jaffer: No, I'll let it stand, Madam Chair.

The Chair: Okay.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Mr. Jaffer, I believe you have a second amendment.

Mr. Rahim Jaffer: Yes, that's right.

This amendment adds on after line 18 in clause 11. If I'm not mistaken, it gives greater clarity to when the commissioner would have to report to a particular organization that a complaint has been made and when he would not have to. I think it also strengthens the position of the commissioner.

The Chair: Madame d'Auray, maybe you could address that.

Ms. Michelle d'Auray: With this amendment, it basically would say that the commissioner, if he or she is not going to give a report, is not going to give notice to the organization that a complaint has been made. In a sense, that is precluding an organization from being informed that a complaint has been made even if a report won't be filed. If a report won't be filed, there is a capacity under subclause 13(2) for the commissioner to identify to the complainant. There is also a government amendment, G-19, that would also make sure the commissioner reports to the organization that there will not be a report. Otherwise, if there is no report, with this amendment the organization is not even going to know that there was a complaint filed against it.

We think if a complaint has been filed with the commissioner, the organization should at least be warned that a complaint has been issued. If there is no report to be issued, then both the complainant and the organization should be told that.

Mr. Jim Jones: When you say there are complaints filed against organizations, they only know there are complaints filed; they know nothing about the individuals.

Ms. Michelle d'Auray: That's correct.

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This just basically forewarns the organization that a complaint has been made against the organization. It therefore allows the organization to be ready to deal with the commissioner if the commissioner comes in and asks a series of questions. Otherwise, when the commissioner comes in, there's no notice.

Mr. Rahim Jaffer: Obviously, it doesn't necessarily change the power of the commissioner as such; it just simply allows him to go through another step of warning the company, so to speak.

Ms. Michelle d'Auray: If I were a company and a complaint had been filed with the commissioner, I would want to know that a complaint had been filed with the commissioner even if there's no report. If there is no report, the commissioner will inform both parties that there is no report.

Mr. Rahim Jaffer: Even if the commissioner is letting the organization know about the complaint, it may not necessarily mean there will be any other further steps taken.

Ms. Michelle d'Auray: That's correct. It is just a notice that a complaint has been received by the privacy commissioner with regard to that organization.

Mr. Rahim Jaffer: Okay. I can withdraw that then.

(Clause 11 agreed to)

(On clause 12—Powers of Commissioner)

The Chair: Moving to clause 12, we have amendment PC-7.

Mr. Jim Jones: I move this amendment, which would require the privacy commissioner to obtain prior judicial authorization and approval before the commissioner exercises his search and seizure powers. The rationale is that Bill C-54 already provides the privacy commissioner with broad investigative and audit powers to summon and enforce appearance of persons under oath; converse with any person; compel the production of documents; and receive and accept any evidence in the same manner and to the same extent as a Superior Court.

There's a need for additional safeguards in Bill C-54 when it comes to the privacy commissioner or his delegates actually entering the premises of a private organization and seizing records. The person authorizing search and seizure powers should not be the same person executing those powers. The authorization should be granted by a neutral third party, as is the case for criminal investigations. It is therefore not unreasonable—especially since clause 28 of Bill C-54 includes criminal sanctions—to require the privacy commissioner to obtain the permission of a court to use his search and seizure powers under clauses 12 and 18.

The Chair: Mr. Jaffer, you may wish to address this at the same time, because your Reform motion is almost identical to what Mr. Jones is putting forward.

Mr. Rahim Jaffer: Yes, it's exactly the same.

I think we heard this from especially a number of telecommunications corporations that brought up this particular issue. They felt this gave the privacy commissioner a fair amount of power, even above that of the law. As my colleague has just mentioned, this adds more balance with regard to giving a check on the privacy commissioner before he or his delegates could enter a premise or before he could start searching through private information.

The idea that the commissioner has to obtain the proper documents or go through the courts is, I think, a fair amendment. It gives protection equally to private organizations, because I think they made it quite clear that there could be a potential abuse by the commissioner if this is not included in the bill.

The Chair: Madame Jennings, and then Mrs. Barnes.

[Translation]

Ms. Marlene Jennings: I cannot support the amendments moved by either Mr. Jones or Mr. Jaffer.

First of all, it's important to note that this legislation and the powers of the Commissioner are not subject to criminal law, but rather civil law. We're talking about common law or administrative law here.

Here in Canada, we have a long and rich history of administrative organizations with powers similar to the ones set out in this bill. I think that's very important.

The Commissioner has talked about playing the role of ombudsman himself. If you look at the duties of a number of ombudsmen, not only in Canada, but around the world, whether we're talking about England, Belgium or Australia, you will see that they have exactly the same powers.

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If we're talking about former colonies of England or Great Britain or Commonwealth countries, the powers are exactly the same, because we are not dealing with criminal law here. We are dealing with administrative law that is covered by civil law.

Secondly, even professional corporations or orders have the same powers; whether we're talking about the College of Physicians, professional associations representing dentists or nurses, or provincial bars, they all have exactly the same powers.

The Supreme Court has already ruled that disciplinary law is subject to administrative law, rather than criminal law. So-called constitutional protection cannot be associated with the criminal law; it falls within the jurisdiction of administrative law.

I believe that if we want the Commissioner to fulfil his mandate and responsibilities as an ombudsman, we have to give him these powers, which are not excessive. They do not exceed reasonable limits as justified in a democratic society. That has already been demonstrated by other administrative organizations, both federal and provincial. It's already in place. Those powers have resisted previous challenges, even before the Supreme Court of Canada.

[English]

The Chair: Mrs. Barnes.

Mrs. Sue Barnes: Thank you, Madam Chair. I'll just reinforce some of the comments made by my colleague. I believe there is a large distinction accepted in Canada between civil and criminal law. There are no criminal sanctions inside this piece of legislation.

I'm also concerned that we're creating a commissioner who is being mandated to do many different types of tasks, including education. I'm also concerned about being very realistic in today's world, knowing that governments are not going to give blank cheques on resources to any body that is created here. There will be severe limitations financially, I would think. I don't want to see a piece of legislation that has a very valid purpose tied up procedurally and with expenses that I think are very warranted in some situations, but not in this one.

I see a balancing of interests here. I see the government using a CSA model that's looking for more voluntary acceptance and a cooperative effort. I see many reasons that we go in lightly to try to deal with the organization to try to work things out as a first step.

Many of the witnesses gave conflicting testimony here. The one I hold of great value was the testimony given last week by Mr. Johnston. He pointed out that for securities regulations, for example, that had a far greater power when administered than what is contained in this. So we're trying to create the balance; we are not trying to create a court dynamic in which there's great expense. We're trying to tread lightly.

So I think there are difficult balances here, and this is one of them in this area. I will therefore vote to defeat this motion, although I do understand why my colleague raises it. I think it has been an area of important discussion surrounding this bill, but at the end of the day I do want the privacy commissioner to have some teeth in this area. Without this section, it would essentially go a long way towards emasculating the goals we are trying to achieve. I understand my colleague's need to put forward this amendment. It's certainly one that I've had to mull over and consider, on the balance of fairness to both sides.

In our discussions, I also noted how it could very much be a David and Goliath fight here in terms of resources. I think we have to take that into account too and look at this with some faith that there won't be any abuse.

The Chair: Thank you, Mrs. Barnes.

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Mr. Jaffer, and then Mr. Jones.

Mr. Rahim Jaffer: Talking about the same point of balance, maybe this is where I could use some clarification. It seems to me that this in fact isn't going to remove the teeth from the privacy commissioner. As Mrs. Barnes said, the amendment is just adding balance with the fact that.... As Madame Jennings said, hopefully we won't see an abusive commissioner or anything like that. But just to be able to put in a provision that would allow balance—which Madame Barnes talked about—and not affect the teeth of the privacy commissioner or the enforceability of this, wouldn't that just be a positive thing to add into the legislation? It doesn't take away anything. That's my feeling on it.

Ms. Michelle d'Auray: I think it does remove some teeth from the commissioner, and it also adds a time constraint. For example, if you are dealing with the potential destruction of documents, you have to be able to move very quickly. If you're dealing with a court procedure in which you have an organization that is going to use every recourse to contest—as Mrs. Barnes has pointed out—in the area of privacy protection, you do have to be able to move very flexibly and very quickly. This does give the privacy commissioner an ultimate tool, if you will, to go to a company if the company is not forthcoming with the information.

So in terms of the balancing and the teeth all the way through, in our opinion, leaving the provision in does provide the necessary balance. The commissioner is not issuing fines and is not issuing orders, and this is not a criminal procedure, but you do have to give the commissioner some ultimate recourse to get access to the information if you have blockage all the way through from an organization. When it is in the mandates of other or similar types of bodies, it is used sparingly, obviously, but it does exist in other types of bodies. The securities commissions are one such type, and the same powers apply to food inspection and fish inspection agents. In terms of the privacy protection, one would assume it is at the same level of importance and that it does give the commissioner the ultimate recourse in dealing with an organization that refuses to cooperate.

The Chair: We have a couple of others, including Mr. Jones and then Ms. Jennings. However, I would just like to know if I have the committee's consent to continue. We are past 1 p.m., but we did have an interruption.

Mr. Jim Jones: I have a meeting in ten minutes.

Mrs. Sue Barnes: I think it would be very worthwhile if we tried to make up the time lost during the vote this morning. I certainly would be willing to sit until 1.50 p.m. or something like that.

The Chair: Mr. Jones, you're not able to do that?

Mr. Jim Jones: I've scheduled another meeting.

Mr. Rahim Jaffer: I have conflicting things as well.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I understand that opposition members have another meeting to go to, but could we make it such that our afternoon session would be extended to make up for all the time lost this morning?

The Chair: Is everyone in agreement with that if we need to do so?

Mr. Walt Lastewka: We would just carry on.

The Chair: Can we just resolve this one clause before we adjourn?

Mr. Jim Jones: Since the session...we've been getting along fairly well. I don't think there's any intent to hold this up. After 3.30 p.m., we can come back and do the job.

I do respect Madame Jennings and Mrs. Barnes, but I don't agree with this situation in which you have all the power in the hands of the privacy commissioner. He could just go in there and seize all the documents of a corporation without any good reason...well, maybe not necessarily a corporation, because that would be a lot, but at least a small company. That's the power we're giving this person.

The concerns have not just been from the telecommunications industry. They've been from the Canadian Chamber of Commerce, the Alliance of Manufacturers, the Canadian Daily Newspaper Association. There are many people who are concerned about this. Right now we might have a very good, folksy, down-to-earth privacy commissioner, but the next guy could abuse his powers. Therefore, I'm not prepared to give him those powers. Out of the 2,000 complaints that he gets in a year, maybe there's no need with a high percentage of them. But we're moving into a new era now. We're moving into the electronic commerce area, with everything being done on-line. I just think it's appropriate that if he's suspicious that a company is doing something drastically wrong, then he should be taking the necessary steps to get a third opinion from the courts and to invoke the search and seizure powers he has.

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The Chair: Ms. Jennings.

Ms. Marlene Jennings: I do appreciate your concerns and those of Mr. Jaffer, but I did not say the commissioner's powers were abusive. I said the contrary.

Mr. Rahim Jaffer: No, but you said they could become abusive. I'm sorry, I don't—

Ms. Marlene Jennings: Fine, but I don't want to get into that discussion.

What I want to address is the issues you've just raised, Mr. Jones, about the commissioner being able to enter at any time; about him being able to seize any documents and how that could have a damaging effect on a small organization; and that while the present commissioner is a nice, folksy guy who seems to have at heart both the interests of the organizations, employers, and those of the consumer, who knows what the future can bring?

Notwithstanding comments that we received from our Bloc candidates about how badly drafted this legislation was, along with selective quotations from other witnesses who came before us, most witnesses recognize the level of difficulty of the actual work of drafting legislation that is in any way coherent in this particular sphere of activities. Almost to a one, it was almost unanimous that they complimented the government and the bureaucrats who were given the responsibility of drafting this legislation.

The reason I'm raising this is that if one looks at clause 12 in its entirety, there are very clear controls that have been put on the commissioner's power to enter a premise other than a dwelling, and on the types of information or documents the commissioner can legally require copies of. That information has to be relevant to the complaint.

In my former life, I had personal experience in utilizing those kinds of powers. I can tell you that, first thing, any commissioner worth his or her straw will sit down with representatives of all of the different domains of activities to work out protocols. The commissioner will do so precisely to ensure that he or she isn't finding his- or herself in front of a court while being challenged on every single utilization of the powers the legislation gives. That's the first thing.

Secondly, where there are disagreements as to the interpretation of legislation.... For instance, if the company says something is not relevant to the complaint the commissioner has before him and is not relevant to the investigation of the complaint, but the commissioner insists that it is relevant, that organization will immediately proceed to court. Corporations have done so in every other domain in which you have an administrative body with these kinds of powers.

The third thing is that precisely because these powers have been challenged before the courts and have withstood those challenges in virtually all cases, the courts have established a body of jurisprudence that determines what is, for instance, relevant to a complaint. They have actually created the parameters. All of those associations and individuals.... For instance, Madame Jones runs her own company, has five employees, and becomes subject to a complaint. She may not have the resources to withstand the commissioner, but the Canadian Chamber of Commerce certainly does, the Conseil du patronat certainly does, and the sectorial associations certainly do. They will ensure that their members are informed as to where to go if they have a problem with the commissioner. That's the first thing, and those associations will then be more than happy to take that battle on.

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The second thing is that will encourage those associations to broaden their membership. So if they haven't entered into the field, if they only have 50% of the businesses in this particular sector that are members, they will redouble their efforts to try to sign up 100%, so that they will in fact be able to represent them.

This legislation actually provides the parameters—I'm going over the five minutes; I'll have to go back to school—and I think creates an incentive for all of those associations to do their homework, to do the public education within their own sectors. It will be beneficial because they'll collect more dues, they'll become a little richer, etc.

The Chair: Thank you. Unless there is something different, I'd like to move to the question.

Mr. Jim Jones: I respect what Madame Jennings has said, but I still don't feel any more comfortable in this area. I will call for a recorded vote.

The Chair: Well, I don't think we're going to resolve it here. I shouldn't say “resolve”, but I don't think we're going to come to an agreement here.

We'll now vote on Mr. Jones' amendment PC-7.

(Amendment negatived: nays 7; yeas 2)

The Chair: The next amendment on clause 12 is Reform amendment 6, which is almost identical to amendment PC-7. So the vote applies to that as well.

(Amendment negatived: nays 7; yeas 2)

The Chair: You can't try again, I'm sorry. I have to move on to amendment PC-8.

Mr. Jim Jones: I thought we were adjourning.

The Chair: We're going to deal with clause 12.

Mr. Jim Jones: Okay.

The Chair: Can we not finish clause 12? I apologize, Mr. Jones. Amendment PC-8 is your amendment, I believe, Mr. Jones.

Mr. Walt Lastewka: Having defeated amendment PC-7, does that not make amendment PC-8 defeated?

The Chair: Let's just ask our legislative clerk. There's a slight difference, Mr. Lastewka.

Mr. Jones, do you still wish to proceed with PC-8?

Mr. Jim Jones: Well, we'll just vote on it, because I know we don't have to do a lot of discussion. I'll have a recorded vote.

The Chair: We'll have a recorded vote on amendment PC-8.

(Amendment negatived: nays 7; yeas 2)

The Chair: Reform motion 7 is again identical, so the vote would apply. Is that correct? Yes, it would apply, so it as well is defeated.

(Amendment negatived: nays 7; yeas 2)

Mr. Jim Jones: I want a recorded vote.

The Chair: You want a recorded vote on clause 12, Mr. Jones?

(Clause 12 agreed to: yeas 8; nays 2)

The Chair: You cannot leave your own personal papers here.

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Just to let you know, we are going to be able to stay in this room. Originally we had to move to 536 Wellington. The clerk has just confirmed that there is no committee here this afternoon, so we will be able to stay here.

We'll have security lock the door. You can leave your belongings here.

There will be an amended notice sent to all your offices. We're now adjourned until 3.30 p.m.