A budget implementation bill is an unlikely – and many would say inappropriate – place to make major changes to Canadian privacy law. Yet Bill C-59, the government’s 158-page bill that is set to sweep through the House of Commons, does just that.
The omnibus budget bill touches on a wide range of issues, including copyright term extension and retroactive reforms to access to information laws. But there are also privacy amendments that have received little attention. In fact, the Privacy Commissioner of Canada was not even granted the opportunity to appear before the committee that “studied” the bill, meaning that privacy was not discussed nor analyzed (the committee devoted only two sessions to external witnesses for study, meaning most issues were glossed over).
My weekly technology law column (Toronto Star version, homepage version) notes that the bill raises at least three privacy-related concerns. First, the retroactive reforms to access to information, which are designed to backdate the application of privacy and access to information laws to data from the long-gun registry, has implications for the privacy rights of Canadians whose data is still contained in the registry. By backdating the law, the government is effectively removing the privacy protections associated with that information.
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The government’s omnibus budget implementation bill (Bill C-59) has attracted attention for its inclusion of copyright term extension for sound recordings and the retroactive changes to the Access to Information Act. Another legislative reform buried within the bill is a significant change to PIPEDA, Canada’s private sector privacy law. The bill adds a new Schedule 4 to PIPEDA, which allows the government to specify organizations in the schedule to which PIPEDA applies. Bill C-59 immediately adds one organization: the World Anti-Doping Agency (WADA), which is based in Montreal.
The change to PIPEDA is designed to address European criticism that WADA is not subject to privacy laws that meet the adequacy standard under EU law. WADA is currently subject to Quebec’s private sector privacy law, which meets the “substantial similarity” standard under Canadian law, but has not received an adequacy finding from Europe. In June 2014, the EU Working Party that examines these issues released an opinion that raised several concerns with the provincial law. The goal of the criticism appears to be to deem Montreal unfit to host WADA and transfer its offices to Europe. The Canadian government wants to stop the privacy criticisms by deeming PIPEDA applicable to WADA. Since PIPEDA has received an adequacy finding, presumably the hope is that the legislative change will address the European concerns.
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