Greetings All. On Tuesday 30 May 2000, Privacy Commissioner Bruce Phillips addressed the Senate, as he did last year. He responded to questions from the Senators, including some relating to our efforts to obtain access to Historic Census records. The extract from Hansard is presented here. Due to it's length, the extract is presented in several parts. Gordon ---------------------------------- Privacy Commissioner Received in Committee of the Whole The Senate in Committee of the Whole in order to receive the Privacy Commissioner, Mr. Bruce Phillips, for the purpose of discussing the work of this office. The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Rose-Marie Losier-Cool in the Chair. [Translation] The Chairman: Honourable senators, before hearing the witness in Committee of the Whole, allow me to draw your attention to rule 83, which states, and I quote: When the Senate is put into Committee of the Whole every Senator shall sit in the place assigned to that Senator. A Senator who desires to speak shall rise and address the Chair. The last time Canada's Privacy Commissioner appeared before the Committee of the Whole, it was decided to dispense with this rule. Is it your pleasure, honourable senators, to dispense with rule 83? Hon. Senators: Agreed. [English] Senator Hays: Honourable senators, I move that Mr. Bruce Phillips, Privacy Commissioner, be escorted to a seat in the chamber. The Chairman: Is it your pleasure, honourable senators, to adopt the motion? Hon. Senators: Agreed. [Translation] The Chairman: On behalf of all senators, I welcome Mr. Phillips, Canada's Privacy Commissioner. [English] Mr. Phillips, do you have an opening statement? Mr. Bruce Phillips, Privacy Commissioner: Honourable senators, thank you very much for having me back. I think the most enjoyable thing I have done since I took on this job was coming to a session of the Committee of the Whole Senate about a year and a half ago. I am not trying to flatter you; I mean it. It is kind of fun to come to a committee where people are actually talking to the witness instead of to each other most of the time. That is no reflection on any other place. Second, this may well be my valedictory to the Senate since, unless some miracle intervenes, I will be packing my bags in a few months to take retirement. Well deserved? Well, some other people will have to decide that. Last year, I gave you, at the outset of my presentation, a 10-minute disposition on the philosophy and ethics of privacy. I do not propose to repeat it in any great detail. I want to remind you of one or two basic points. First, with respect to my position, for those of you who may not have been here last year or heard me speak on other occasions, the Office of the Privacy Commissioner is one of a very few number of offices in the entire federal establishment that exists and requires a vote of approval for the nominee by both Houses of Parliament. The reason for that is to certify their independence of any particular government department or agency since all of us are involved in matters that require an arm's-length relationship. Some others are the Information Commissioner, the Chief Electoral Officer and the Auditor General. It is a wonderful position to occupy because it keeps the incumbent focused on the issue that he or she is there to serve. There is no other consideration in a good commissioner's mind than serving that issue and protecting the credibility and the independence of the office. The issue of privacy is frequently misunderstood. People think it is essentially denoting "a means of hiding things." Privacy is not the business of hiding things. Privacy is a shorthand word that covers a very complex and comprehensive set of rights which touch almost every aspect of human life. If you think of privacy in the context of being able to control matters concerning yourself and what it is that you wish the world to know about you, you begin to come closer to the notion of privacy. Privacy has its origins in the very beginning mists of human history. The ancient British notion of a man's home being his castle - now a person's home being his or her castle - very much expresses the idea. If you really respect someone, you will grant that person a right to privacy. If that person respects you, that person will give you a right to your privacy. Supreme Court Justice Gerard La Forest expressed it best when he said, "Privacy is the concept that lies at the heart of freedom." I think that is right. "Privacy" is just another word for freedom. I will quickly review some of the issues that arose during the past year. Quite apart from one or two more recent events, we have had an extraordinary year in this field. The most important development in the privacy field in the last 15 or 20 years in this country occurred in the course of last year, partly and significantly due to this particular chamber. I am referring to Bill C-6, the Protection of Personal Information and Electronic Documents Act. The genesis of Bill C-6 goes back some distance to the publication of privacy guidelines by the Organization for Economic co-operation and Development, issued roughly 20 years ago, which set forth principles for government to govern themselves by in the collection, use and disclosure of people's personal data. The privacy guidelines were accepted by the Government of Canada. Departments of the government were urged to follow them, as was the private sector. The government had more success with the public sector than it did with the private sector, which largely ignored them. However, the government acted by passing the Privacy Act that has governed, for many years, the collection, use, disclosure and retention of information by the Government of Canada. The private sector, with the advantages of modern technology, was leaping ahead with ever more massive collections and use of data. It essentially became an informational jungle, where there were no rules. All of the jaw-boning and arm-twisting that was attempted by people such as myself had very little effect. Some institutions - notably financial - responded by passing voluntary codes of privacy practice, which helped, but only a little. The Canadian Direct Marketing Association and others were, I think, outstanding in the field of policing their activities during that period. However, it became evident three or four years ago that if businesses were to continue to enjoy the confidence and trust of the clientele and consumers of Canada, something more had to be done. Another compelling reason was the adoption by the European Community several years ago of a common data protection set of principles that were applicable to all states of the European Community. That set of principles essentially authorized them to withhold data transfers to states where, in their view, adequate data protection did not exist. At that stage of the game, Canada certainly was one of those countries. Partly in an effort to defend Canada's trade abroad and to guarantee continuing rational data flows from country to country, and partly because of the increasing clamour in Canada, Bill C-6 was born. Those honourable senators who were not directly involved at the legislative end of the process must realize that Bill C-6 was not an easy exercise. It was strenuously opposed - sometimes publicly, while on other occasions not so publicly - by many special interests groups. I must say, in as non-partisan a way as possible, that it took a good deal of resolve on the part of the government of the day, with the help, I am sure, of people on all sides, to ensure that Bill C-6 came to pass. It will become law at the end of the year. Three years hence, unless the provinces act in conformity with the principles in Bill C-6, it will cover provincial informational traffic, as well as that which now falls under the jurisdiction of the Parliament of Canada. That is almost akin to a revolution. Canada is the only country in North America that has such a comprehensive statute covering the private sector. There are continuing issues, such as the problems in respect of the social insurance number. We are aware of the opinion of the Auditor General on that issue. In spite of the efforts to fix the issue, the underlying problem of the social insurance number has not been addressed. When the social insurance number became a card to certify eligibility for certain government programs in the 1960s - I was present in the galleries listening to those debates - fears were expressed that the card would be used as an everyday working identification card. Qualified assurances were given that such a thing could not happen, but it did. Everyone now knows that you can hardly get on a bus and go to a store without your social insurance number. The problem is that the government has never stipulated in law that it would be unlawful to demand the production of that card for other than specified uses. Although I believe that was recommended again during the course of the last study, it has not been acted upon. As a consequence, the social insurance number will continue to be as much a nuisance as a help to us. I am aware that the Senate is seized of the whole debate about privacy and its relationship to health information. That is probably the next privacy battleground, although I can think of one or two others that we might discuss this afternoon. We, in our office, are baffled, to a certain extent, by the health privacy debate. That is largely because of the immensity of the volume of information involved, and the very large number of players that are in the field, both in the public and private sectors. We must candidly admit that we do not know how all of this information is managed. We have much anecdotal evidence and information from a variety of sources. Many doctors tell us that they are terribly concerned because they feel that the historic, Hippocratic oath-bound principles of patient-doctor confidentiality are no longer alive because the information is now used by too many hands for payment purposes, verification purposes, government studies and so on. Even the doctors cannot tell you with any assurance where all of the information is used. The first problem in dealing with the health information issue is to find out where it originates, who has it, and where it goes. The committee of the senate that proposes to study this issue will be pioneering in this field. I believe that if, as some people advocate, health information is to be treated by a separate statute, other than Bill C-6, the kind of thing that you are about to do is absolutely sine qua non - a prerequisite - to that exercise. We will be as interested as anyone else in the evidence that is given to that committee. I do not know whether to venture into the minefield of the census data now or later. It arose at our meeting one year ago and continues to be a concern of mine. I was treated gently by the Senate, much more gently than I was in other quarters, with respect to the census issue. My first concern is with the confidentiality issue. No one has been able to satisfy me on this point in respect of census information. There are two regulations on the books covering the 1906 and 1911 censuses that state that census data shall be kept confidential and not used for any other purpose. There is a 1918 law on the books that states essentially the same thing. Information printed on each of the millions of census forms distributed to the Canadian public states that they are enjoined to fill out the form, no matter how intrusive they might feel it is, under pain of the penalty of the law. However, that form also provides an unqualified guarantee of secrecy and confidentiality. The case could be presented by someone - and I have never disputed the legitimate interest of historians and genealogists in this type of information, although I may feel differently about their right to it - to get rid of that guarantee because the information is extremely valuable to them. What then becomes - and I do not speak alone because the Chief Statistician would say this more emphatically than I - of the confidence and the trust of the Canadian public in the given word of its elected government? If, having given all of this information with that undertaking clearly before it, the public is now told, "Well, things have changed so retroactively that we will wipe out the information," then that raises an ethical question that must be addressed and answered by those people who would seek to set the information aside. The question of the merits of the case for access by historians and genealogists is something else. I appeared before the expert panel that was appointed by the Minister of Industry to look into this question of what to do about census records in response to the strong representations that were made by the historical and genealogical committee. Whatever they may make about the confidentiality guarantee, I suggested to them that, if they still wish to recommend access to this census data, then surely a distinction must be drawn between census data and other types of personal information. The long form on the Canadian census since 1971 is the single most comprehensive gathering of intimate personal data about Canadians ever conducted. It includes all kinds of information that people normally might be extremely sensitive about disclosing. I am talking about sex, sex preferences - which was asked in the latest one I saw - family histories, income and lifestyle. There is an enormous amount of data on that census. It is no longer simply a census of the population. It is a socio-economic study of the most comprehensive kind. No one would fail to understand why that would be of interest to historians and academics. My point, therefore, is that if they are to make more census data public, surely it must be restricted to census data, that is, a count of the population, name, address, and so on, as is contained in the earlier censuses. That distinction has yet to be drawn. I did not hear it made at the expert panel on this subject. It is possibly the beginnings of a compromise answer to this problem. I would now defer to honourable senators. If the honourable senator from Fredericton is here, I am sorry that I do not have your star pupil with me today. He is out of town giving a speech. I know you wanted to single him out because he is a very bright fellow. I thank honourable senators.