ETHI Committee Report

Bloc Québécois Dissenting Report

April 23, 2007

The Bloc Québécois played an active and responsible role in the study of Part I of the Personal Information Protection and Electronic Documents Act (PIPEDA). Although we had suggested a number of amendments to “limit the damage,” the Bloc Québécois wishes to reiterate its complete disagreement with this act, which was adopted in 2000 and was widely criticized by the Government of Québec, businesses, consumers, the Québec Employers’ Council, editorial writers, constitutional experts, etc.

PIPEDA: an example of raiding by the federal government

Let us recall that the PIPEDA was passed during the controversy in the late 1990s, when Bill C-6¹ received royal assent. The Government of Québec and the provinces argued essentially that while the federal government claimed legitimacy for the PIPEDA pursuant to its jurisdiction over the regulation of trade and commerce, the protection of personal information falls under the jurisdiction of Québec and the provinces by virtue of the constitutional power over property and civil rights. In this regard, a constitutional expert from Québec noted:

“In my opinion, Bill C-54 violates the letter and the spirit of the division of powers as it must be understood in this country. It takes an arrogant and intrusive approach to provincial areas of jurisdiction. […]  The protection of privacy is essentially a matter of provincial jurisdiction. In Québec, for instance, property and civil rights, the Civil Code and the Québec act apply, in addition to the Canadian and Québec charters.”

Jacques Frémont, constitutional expert, Université de Montréal

In Québec, personal information is protected

The federal act merely overlaps with existing provisions in Québec:

Moreover, businesses under federal jurisdiction with dealings in Québec were already covered by the Québec act. Québeckers’ right to the protection of privacy is protected by the Québec act, whether in dealings with a business under provincial or federal jurisdiction. The Task Force on the Future of the Canadian Financial Services Sector devoted an entire volume to the protection of personal information in this sector, written by Richard Owen and published last September. It states:  

“On a literal reading, the Act applies to banks as well as other financial institutions. (…) In the absence of federal legislation on a particular subject matter, validly enacted provincial law may apply to a federal undertaking unless the law prevents the federal undertaking from managing its operations or generally accomplishing its ends.”² 

Moreover, the report states that Québec law already applied to interprovincial and international trade as well. 

“Moreover, the effects of the Québec Act will not be confined to the province. National institutions will face the Act's restriction on the extra-provincial transfer of information (about Québec residents).”³

The PIPEDA gives the federal government the power to render a Québec law invalid

The federal act applies to all financial activities unless the Governor in Council orders, if satisfied that a province has adopted similar legislation, that it be exempted in whole or in part.

In December 2003, the federal government issued an exclusion order⁴ applicable to organizations in Québec. Unfortunately, not only is the power set out in paragraph 26(2)b⁵ left to the government’s sole discretion, but it applies only to information within Québec and held by companies under provincial jurisdiction. 

Pursuant to this paragraph, the Governor in Council could therefore if it wishes order that the laws of Québec be declared partially or wholly invalid, without even referring the matter to Parliament. This is unacceptable to the Bloc Québécois.