Private member’s bill aims to give privacy commish more powers

OTTAWA — As the House of Commons rose for summer break Wednesday afternoon, Liberal MP Nathaniel Erskine-Smith tabled a private member’s bill to give the privacy commissioner greater enforcement powers. “What we have right now is an ombudsman; what we need is a regulator,” Erskine-Smith told reporters on Parliament Hill. The bill aims to give the privacy commissioner stronger enforcement powers, including to make orders and impose fines, and to give the commissioner broader audit power. “Right now, the commissioner can only audit companies where there’s been a complaint,” Erskine-Smith said, adding that the changes would also give the commissioner’s office the discretion to choose which complaints to investigate and which to refuse. The bill would also impose fines of up to $15 million or $30 million, depending on the severity of the offence, if the organization “knowingly or recklessly contravenes” section five of the Personal Information Protection and Electronic Documents Act (PIPEDA). Erskine-Smith said he chose to go ahead with the bill — even though the government stated this week it plans to consult on the issue before deciding whether to support such changes — because he hopes the bill will help focus that conversation. “The goal here in introducing this piece of legislation is to set a marker as to how the privacy commissioner’s powers should be developed,” he said, adding he hopes “we’ll be able to have a fulsome debate with legislation before us as opposed to speaking about these matters in general terms.” The announcement came the day after the government tabled its response to a February report from the house Ethics committee — which Erskine-Smith vice-chairs — that recommended the government give the privacy commissioner enforcement powers and that those powers include the ability to make orders and impose fines. The privacy commissioner has repeatedly asked for those changes. In its response to that report, the government said that it’s time to look at how to improve enforcement of PIPEDA, and that it wants to study the issue in a comprehensive way. “To determine the optimal model for compliance and enforcement, the government must assess the viability of all options to strengthen the compliance and enforcement regime” of PIPEDA, the government response said. “As part of this assessment, the government must look at other models of compliance and enforcement as options and must consider the potential impacts of these models on the overall mandate of the , the principles of fundamental justice, and the countervailing risks associated with increased enforcement powers, notably the impacts on open dialogue between businesses and the OPC.” It also noted that the Senate transport committee previously called for the OPC to be able to “proactively investigate and enforce industry compliance.” That response came the same day that Innovation Minister Navdeep Bains launched a summer-long consultation on data and privacy. He said in response to a question from The Wire Report on Tuesday that “issues around strengthening the privacy commissioner, working with changes to PIPEDA, are the kind of feedback that we’re looking for” as part of that consultation. The consultation will include both rountables with representatives from industry, academia and other groups and an online consultation with Canadians. Erskine-Smith said that the government's response indicated that it’s open to the idea of boosting the OPC’s powers. He chose to introduce a private members’ bill on this issue, as opposed to some of the other recommendations the ethics committee had, because it had the most consensus around it, he said, including from current and former privacy commissioners in both Canada and other jurisdictions. It was also the only recommendation to be included in both the ethics committee’s February report on PIPEDA and this week’s interim report on Facebook Inc. and Cambridge Analytica. In response to a question about why the changes are being introduced as a private members’ bill, as opposed to the government itself proposing legislation, Erskine-Smith noted it wasn’t an issue his party ran on. “The government has a long list of priorities, and we see those reflected in the mandate letters,” he said, adding he hopes that if the government doesn’t make any legislative changes by the next election, these measures are included in the Liberal platform in the 2019 election campaign. “I would certainly like to see the privacy commissioner’s powers strengthened as soon as possible,” he said. He said that there may be a way to include some of his proposed measures before the next election, such as through the next budget bill, but a more realistic outcome is including them in a policy proposal during the election campaign, with substantive change coming after that. Erskine-Smith’s bill, C-413, will begin to make its way through the legislative process when Parliament reconvenes in the fall — about the same time a report from Bains’ data consultation is scheduled to be released. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Ahmad Hathout at ahathout@thewirereport.ca

Private member’s bill aims to give privacy commish more powers

News | June 21, 2018

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Private member’s bill aims to give privacy commish more powers

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