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Canada Dashboard Digest | Notes from the IAPP Canada Managing Director, May 14, 2021 Related reading: Notes from the IAPP Canada Managing Director, May 7, 2021

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“So, how do you really feel, commissioner?”

I imagine many of you were thinking the same thing as you read Commissioner Therrien’s whopping, highly prescriptive and somewhat unusual 83-page submission to the ETHI committee on Bill C-11.

It’s certainly not news that the OPC has some concerns about the law proposed to replace PIPEDA. The extent of the concerns and proposed changes is, however, quite remarkable.

Many have been saying that if Therrien keeps it up, the new law might die, given our minority government, where we are on the parliamentary calendar and the possibility of an election. Some — who have been saying from the start that PIPEDA is just fine as it is, thank you very much — may rejoice at this idea.

What’s clear after reading the submission is that Therrien believes C-11 is a step backward and leans too heavily in favor of commercial interests. I suggest you take some time to read it and come to your own conclusions. There are several handy graphics to illustrate the key points the OPC is raising.

We really should not be surprised by Therrien’s position. I remember it raised a couple of eyebrows when he stated at the outset of his mandate in 2014 that his primary focus would be to increase the control Canadians have over their personal information. He’s certainly been consistent about that point and in his calls for privacy to be seen as a human right in Canada.

This is where things get stuck. Sure, there’s a certain grounding in the Charter regarding our relationship with the government, but our private sector law’s impetus and origins lie in trade and commerce, and the department responsible is ISED. Of course, there will be an important consideration of business interests, and I would imagine the department is also mindful of adequacy, given the potential impact on trade.

Anyway, I’ve seen every commissioner raise the human rights angle, going back decades. All you have to do is read the statements by Interim Commissioner Bernier, Commissioner Stoddart, Commissioner Radwanski and even Commissioner Phillips

So, privacy as a human right is not a new argument — Canada’s privacy commissioners tend to feel this way — and it’s important to know that. But let’s remember it’s a point of view and, in our system, it’s up to Parliament to decide.

As every week goes by, it seems less likely we’ll have a chance to air these issues in the proper forum. The OPC made a submission to a committee that asked for his views but hasn’t even been charged with reviewing the bill. Meanwhile, the question was raised in the House of Commons this week, and the Minister of Public Safety responded — and vaguely, at that — rather than the minister responsible for the bill, so the brief exchange just fell flat.

One of the reasons I think changes are needed — one way or another and even if imperfect — is that day in and day out, I see so many organizations wanting to do the right thing. They know their customers expect it, and the rules we have now are confusing, opaque and lack any real incentive.

I know I said it last week, and I’ll say it again. Let’s get this thing to a parliamentary committee — ETHI or INDU, frankly — before Parliament rises so that all views can be properly considered by those charged with enacting our laws. It’s the least MPs can do, considering this week’s reaffirmation that they’re not even subject to these laws themselves.

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