Senator Hays: The long title of Bill C-6 is rather more helpful than its short title. The "Personal Information Protection and Electronic Documents Act" has the provision of not coming into force for a period of time. That time delay was extended by the Senate with respect to medical records with the hope that a consensus will develop and that there will be amendments to the act that will make it better in that respect. Could I have your comment on how you see that playing out? Do you think a consensus will develop? What will happen if a consensus does not develop? Mr. Phillips: As I understand the way that Bill C-6 was ultimately passed, all that has happened with respect to health information is that it has been exempted from the application of the bill for an additional year, beyond January 1, 2001. Unless something happens between January 1, 2001 and January 1, 2002, health information will be covered by this bill, no matter what else happens. I expect that the Senate committee examining this will come up with some suggestions during the course of 2000-2001. We must wait to see where it goes from there. There is a school of thought that says that health information should be looked at differently from all other kinds of personal information because it is sensitive. That is true, it is sensitive, but sensitivity is very much in the eye of the person to whom the information relates. Therefore, it is very difficult to make any kind of a case on those grounds. There may be a case on the grounds of the complexity of the health information field because there are so many players in it, both in the public and private sectors. My own preference would be for medical information to be covered by a general privacy bill. I see no compelling case for why it should not be covered by such a bill, at this stage in any event. We will just have to wait for the findings of the committee. Does that answer your request? Senator Hays: That is helpful. A specific subject subset of that would be information on one's genetic code. There is a great potential to use that to determine future health prospects. There is a desire on the part of many to gather information in that area. The insurance industry, for the obvious reason of selecting lower risks or higher risks for different treatment, is quite interested. Would you comment on how you see that playing out? Mr. Phillips: I think the misuse of such information as DNA coding for possibly discriminatory decisions being made about the individuals concerned by such people as insurers and employers, you name it, has got to be dealt with in a statutory way. We certainly have to face that issue. That issue is upon us now, because the human genome project is coming to completion much faster than expected. It will now be finished in a year, whereas the earlier projections were for several years to come. Unless there is a strict prohibition against the use of that information for determining a person's insurability or employment, and matters of that kind, it will happen. You can count on it. A real problem of both law and ethics is now in front of our society. You have put your finger right on the issue. Senator Hays: Do you feel good about what you expect will happen in Canada? Obviously, you have been advising the government on this issue and your expression of concern is heard here. Are you optimistic that we will have something to deal with this problem in the near future? Mr. Phillips: I would be more optimistic if a Senate committee put out a strong report saying we had better do something about it. Senator Finestone: Mr. Phillips, I am delighted that you are here. I am sorry to learn that you might be leaving. Your rational arguments and your sensitivity to human issues were the impetus for a standing committee on human rights and the disabled to come up with a report. That report has been the backbone of a large amount of work that has been done on privacy rights. On the issue of privacy rights, where do you stop? You have given rational arguments and you have been sensitive to all the issues that are in the newspapers every day. They are on the Internet every day, with convergence and with technology. I believe we are all very concerned. I am glad that my colleague, Senator Hays, asked you the question about Bill C-6. The human genome and surveillance technology fall into that. Bill C-6 refers to implied consent. It does not refer to informed consent. Are you comfortable with that still? Mr. Phillips: Bill C-6 contains a number of ambiguities, senator, and we could spend much time going over them. I have never been personally happy with negative consents, implied consents, comprehensive consents in perpetuity of the kind that you find on credit applications, and so on. However, I try not to be an absolutist and I try to see each case on its merits. I try to find a formula for consent and other privacy issues that will suit the case and make it possible to continue to do business. Bill C-6 is a new concept for Canadian business. It will not always be easy for them to put themselves in a position of compliance if the compliance involves major changes in long-standing ways of doing business and collecting customer information. I do not believe it was the intention of this Parliament, and certainly not the intention of this office, to behave in an impatient or arbitrary fashion that will force businesses to shut down and put people out of work. We must approach this issue with a good deal of care and give business adequate room and time to get itself into line. I will, with your understanding, decline to get involved in a discussion of some of the minutia of Bill C-6. Our legal counsel, for example, confesses similarly to the point that the bill itself, given the unusual nature of the statute, is essentially a set of recommendations developed by a voluntary body. Those recommendations were simply taken holus-bolus and thrown into a statute, and laws are not often written that way. As a consequence, although the drafters of the act did try to make things a little clearer, there are still problems that require time and care. That is the best answer I can give. Senator Finestone: It was important to note, in light of the rapidity of the change, that we cannot expect culture shock all in one shot. That is one of the things I have appreciated about your approach, which leads me to page 83 of the document. Mr. Commissioner, I notice with a degree of humility that you have mentioned a privacy rights charter, which I am hoping to bring into this house if I can ever finish the legal drafting and the translation. It has been almost a year of work. I think a great deal about privacy rights these days. The census question demands personal information, and you believe - and I understand why you believe this - that we have made a contract with even those who are dead. Therefore, one cannot dishonour the dead. I agree with that. How can we can dishonour the living so easily when we see 300 protocols signed by Revenue Canada with God knows who, and one's information is travelling all over the place? It is apparently okay for the census, and we should not explain and we should not interfere, but with my personal information and your personal information, Revenue Canada can go wherever it wants with 300 protocols. Do you not find that a little strange? We should keep you on in your position so that you could investigate that? Mr. Phillips: I will do what Parliament tells me, senator. Yes, I think that is a good point. There is an enormous amount of information moving back and forth. There is an enormous amount of information that must move back and forth. The government needs that information in order to do its business. The whole thing turns on the way this is done. Is it done in a way that respects the principle of the Privacy Act? The only exceptions that are invoked to that act are in the cases of absolute, overwhelming public necessity. One can make no other argument for abrogating people's rights. Merely having a group of middle-level managers, for example, say that it will be a good idea to do this is not, in my opinion, enough. We must buttress and fortify these information holdings with more clearly defined rules and a more rigorous process for overseeing what is done with that information. Minister Stewart's program that she brought forward the other day goes a long way to meeting those objectives. It could be a template, and I am anxious to see how it works out. Senator Finestone: I hope that template is something you will want to put in the charter. Mr. Phillips: I am glad you have drawn my attention to what I said about your charter in the report. In an effort to telescope my opening remarks, I overlooked mentioning that. That is a useful development because it cannot help but have the effect of increasing the profile of the issue and broadening public awareness. I have been asked what is the main privacy problem in the country, and I would say it is ignorance. People simply do not know what is going on. They do not know their rights. If there are not a great many complaints, it is frequently because people do not know who to complain to or do not know what is happening and, as a consequence, cannot complain. Therefore, your charter has been a good piece of work and I was glad to have been a part of it. Senator Stratton: Mr. Phillips, we shall miss you. I enjoy your presentations here each year. I am assuming you are gone, I am not certain of that fact. I should like to talk about the Canadian Firearms Registry, if I may. A few years ago, sir, you made 40 recommendations pertaining to the Canadian Firearms Centre. Eight of those recommendations addressed potential privacy problems in forms that gun owners must fill out to obtain their licences. Have all these recommendations been addressed? Mr. Phillips: I cannot answer that because we are doing an audit right now. Sufficient public interest and a sufficient number of complaints were received to warrant going over to the firearms centre and saying we would like to have a look at the management of their data in relationship to the Privacy Act before the thing gets up and running and too far down the road. If there are any problems there, we will try to fix them. Senator Stratton: Are you in the process of doing that? Mr. Phillips: Yes, and I will ask the staff to take note of your question and get you an answer as soon as possible. Senator Stratton: I appreciate that. There are 1,400 Canadians employed there now. How well do these people understand the privacy issues involved, or can you again not answer that question because of the audit process? Mr. Phillips: That is right. Senator Stratton: Finally, can gun owners access their personal file? If so, is this access governed by the Access to Information Act or the Privacy Act? Mr. Phillips: If it is their personal information, it would be covered by the Privacy Act. Senator Stratton: I believe I know the answer to this question, but can you guarantee that the information contained in those personal files will never be used or distributed elsewhere? Mr. Phillips: I cannot give that guarantee. As I have said, Privacy Act rules do give government agencies a fair degree of latitude in using information for unrelated purposes. You need only look at the statute yourself. Given the kinds of data involved, given the context in which the centre was created, given our ongoing interest in it and a number of other matters of that kind, I would expect staff to be particularly conscious of the sensitivity of the issue and to be very careful. However, that is only an expectation. Senator Taylor: Mr. Phillips, it is my understanding that people can access information in the provincial tax base, and if there is any misunderstanding it can be cleared up. However, one cannot access the federal tax information. What should be done or what are you recommending? Mr. Phillips: My view is that any information that comes into the possession of the Government of Canada of a personal nature comes under the purview of the Privacy Act, unless it is information obtained from a provincial government under guarantees of confidentiality to the originating source. That is what we are trying to sort out here. That is my view and not necessarily the view of everyone in the office. Senator Taylor: My understanding is that the provincial government will let you look at your file to see if it is correct. If you ask the federal government, they will not let you look at your own file. Mr. Phillips: That is the problem with this. Is the file itself a meld of both provincial and federal information? If it is, the government would have the responsibility of severing out the information it obtained on a confidential basis. Senator Taylor: Is there any possibility, seeing so much of the interest in census records seems to be tied to health, of splitting the census form into - I do not know what it would be called - data that was releasable and data that should not be released? That form is huge now. Why do you have to take the whole thing under secrecy? Why could you not allow the person filing to do one thing or the other, similar to donating one's organs? Instead, one would donate one's medical history. Mr. Phillips: Senator, I have got this good privacy award here in my pocket and I have just found the person I would like to pin it on. In that question, you have just expressed the whole issue of privacy in the informational context, which is getting the consent of the person whose information is involved. If, in filling out a census form, I could mark a little check-off box for the information I was prepared to have made public and the information I was not, and my wishes would be respected, that is the end of the issue. In fact, with respect to the matter you just raised, there is a problem with the child disability issue. There is no consent involved in that transaction, quite apart from who has jurisdiction over the information. Section 7 of the Privacy Act states that information collected for one purpose will not be used for another purpose without the consent of the person concerned. Section 8 sets out a number of exemptions. Senator Fairbairn: Welcome, Mr. Phillips. Our paths have crossed in interesting ways over the years. I have been sitting here this afternoon with an increasingly sinking feeling. Since I came to this place 16 years ago, I have spent a great deal of my time working with and advocating for people with literacy problems and learning disabilities. As I listen to the questions and the answers, I am thinking of over 40 per cent of our adult citizens, maybe over 7 million adult Canadian citizens, who, right off the bat, are in an incredibly vulnerable position. These are people who, with respect to any of the forms that have been discussed, would have great difficulty in either reading them, understanding them or filling them out. As you say, one of the major difficulties is that they do not know their rights. This is a sizeable part of our population in what we think of as a prosperous and caring country. In all of your work on the privacy issue, and some of the enormous opportunities and fear that surround that issue, have you ever had occasion to look at that group of Canadians and the position that they are in, almost from the beginning, of having to share their private information with someone else, even to get it on the record? It really is a Catch-22 situation, and I would like your thoughts. Mr. Phillips: Senator, I will level with you. No, we have not done a special study or devoted any substantial part of our resources to that question. Having said that, it is more because we do not have all that many resources. Handling the traffic that comes to us that we must deal with on a statutory basis just about chews up everything we have. There is a privacy issue involved in people who are not literate, because they have no choice. You said it. They have to give up their information just so they can understand what information they have to give up, if you want to put it that way. We should look at that issue. In the enlarged mandate of the office now, I hope we can find the personnel and the resources to take a good, hard look at it. It may not require a whole lot of hard research. I do not know. I can see someone here who can already tell us a lot about it. We will get in touch with you on that. It is something we will have to look at. Senator Fairbairn: Maybe this would be a future project for you. Mr. Phillips: That is what I am saying. I can see one good resource right here. Senator Kinsella: Commissioner, have you appeared or have you been invited to appear before the Senate committee examining Bill C-22, the money laundering bill? Mr. Phillips: Yes, we have, and we will be there, senator. Our intervention will be short. We do not have a whole lot to say about it, but there are a couple of important points we wish to make, yes. The Chairman: Commissioner Phillips, I thank you very much for your availability to come to the Senate. As you can tell from all the questions that were asked, privacy is a very important issue for all senators and for all Canadians. Mr. Phillips: Thank you, Madam Chair and honourable senators. Senator Hays: I get the last word, Mr. Commissioner. I should like to add my thanks for your appearance today and also for your good service to Canada over the years that you have served as Privacy Commissioner. If you do leave that position, given your activism, I am sure that we will see you here again in one role or another in the not too distant future. In any event, honourable senators, I move that the committee rise, that the chair report, and that we conclude our deliberations. The Chairman: Is it your pleasure, honourable senators, to adopt the motion? Hon. Senators: Agreed. The Chairman: Carried. [Translation] Report of Committee of the Whole Hon. Rose-Marie Losier-Cool: Honourable senators, the Committee of the Whole, to which was referred the discussion about the work of the Office of the Privacy Commissioner, has directed me to report that the committee has concluded its deliberations. The Senate adjourned until Wednesday, May 31, 2000,at 1:30 p.m.