Regulations Amending the Privacy Regulations: SOR/2022-151

Canada Gazette, Part II, Volume 156, Number 14

Registration
SOR/2022-151 June 21, 2022

PRIVACY ACT

P.C. 2022-715 June 20, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, makes the annexed Regulations Amending the Privacy Regulations under paragraph 77(1)(d) of the Privacy Act footnote a.

Regulations Amending the Privacy Regulations

Amendments

1 Item 10.2 of Schedule II to the Privacy Regulations footnote 1 is replaced by the following:

2 Item 15 of Schedule II to the Regulations is replaced by the following:

Coming into Force

3 These Regulations come into force on the day on which they are made.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Two designations in Schedule II of the Privacy Regulations need to be updated to reflect reorganizations that have occurred in recent years in relation to the Canadian Passport Program and the change of name at the Office of the Commissioner of Canada Elections. These inaccurate designations limit the ability of the Passport Entitlement and Investigations Division at Immigration, Refugees and Citizenship Canada and the Enforcement Directorate of the Office of the Commissioner of Canada Elections to obtain some of the information they need to adequately carry out their investigative mandates.

Background

Schedule II of the Privacy Regulations contains a list of the investigative bodies within federal government institutions that have been designated for the purposes of paragraph 8(2)(e) of the Privacy Act. This designation makes it possible for government institutions to disclose personal information to the designated investigative bodies for the purposes of law enforcement or carrying out a lawful investigation without having to obtain consent from the concerned individuals. It does not compel government institutions to disclose personal information, but enables them to exercise their discretion to disclose when all of the other conditions for the application of paragraph 8(2)(e) of the Privacy Act have been met.

The list of investigative bodies in Schedule II was last updated in 2018, when the Regulations Amending the Privacy Regulations (SOR/2018-39) came into force.

The Standing Joint Committee for the Scrutiny of Regulations has raised the importance of ensuring that the references to investigative bodies in the Privacy Regulations are up to date. In particular, it has raised the need to update the reference to the “Security Bureau, Passport Canada, Department of Foreign Affairs and International Trade” to reflect the organizational changes that have occurred in recent years.

Up until 2013, the Security Bureau, Passport Canada, Department of Foreign Affairs and International Trade was an investigative body that carried out, as one of its main functions, investigations in relation to passport entitlement. In 2013, responsibility for administering the passport program was transferred from the Department of Foreign Affairs to Immigration, Refugees and Citizenship Canada (IRCC). While its organizational structure initially remained intact after the transfer, the Security Bureau’s name subsequently changed and, as of January 3, 2017, its components were integrated into various branches of IRCC. However, the outdated reference to the Security Bureau of Passport Canada at the Department of Foreign Affairs and International Trade remains in the regulations to this day. IRCC has identified the Passport Entitlement and Investigations Division (IRCC-PEID) as one of the units within IRCC that continues to carry out, as its main function, investigations in relation to passport entitlement.

Further, the reference in Schedule II to the “Investigations Division, Office of the Commissioner of Canada Elections” is now outdated and that investigative body now exists under the name “Enforcement Directorate, Office of the Commissioner of Canada Elections” (OCCE-ED). The main functions of this body, to conduct investigations in relation to the enforcement of the Canada Elections Act and the Referendum Act, remain unchanged.

Objective

These amendments update the list of investigative bodies in Schedule II of the Privacy Regulations to ensure that federal departments and agencies are authorized to disclose personal information to the Enforcement Directorate Commissioner of Elections Canada and the Passport Entitlement and Investigations Division Immigration, Refugees and Citizenship Canada in accordance with paragraph 8(2)(e) of the Privacy Act.

Description

The regulatory amendments modify Schedule II of the Privacy Regulations as follows:

(1) By removing the name of an entity which no longer exists:

(2) By removing the name of the following entity:

Regulatory development

Consultation

A written consultation was undertaken with the Office of the Privacy Commissioner of Canada (OPC) in April 2022. The OPC did not raise any concerns with respect to the name change of the “Investigations Division, Office of the Commissioner of Canada Elections”. It also indicated that it did not see any significant risk with respect to replacing the designation of the “Security Bureau, Passport Canada, Department of Foreign Affairs and International Trade” with IRCC-PEID.

The OPC also indicated that it would like to be consulted on future regulatory initiatives to designate other units at IRCC that have taken over investigative functions of the former Security Bureau. In response, Justice Canada officials confirmed that they would consult the OPC on other future initiatives to designate those units as investigative bodies for the purpose of the Privacy Regulations.

These regulations were not pre-published in the Canada Gazette, Part I, given the amendments are non-controversial, do not involve the spending of public funds and do not prejudicially affect the rights of persons.

Modern treaty obligations and Indigenous engagement and consultation

No impacts have been identified in respect of the Government’s obligations in relation to Indigenous rights protected by section 35 of the Constitution Act, 1982, or its modern treaty obligations.

Instrument choice

The issue is best addressed by a regulatory amendment, as the baseline scenario (no action) would not address the issue identified and an exclusively policy-level approach would not be consistent with the requirements of paragraph 8(2)(e) of the Privacy Act. For paragraph 8(2)(e) to apply, the investigative body to which personal information is to be disclosed must be designated in the Regulations.

Regulatory analysis

Benefits and costs

Benefits

These amendments will reduce confusion concerning the identity of the investigative bodies to which personal information can be disclosed. Adding IRCC-PEID and the OCCE-ED to Schedule II of the Privacy Regulations avoids situations where they could be limited in their ability to obtain some of the personal information they need to carry out their investigative mandates because other federal government institutions may be reluctant to disclose personal information to IRCC-PEID or the OCCE-ED pursuant to the authority under paragraph 8(2)(e) of the Privacy Act due to the fact that their names are not accurately designated in the regulations.

Costs

There are no costs associated with the regulatory amendments.

Small business lens

Analysis under the small business lens concluded that the amendments will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply to this initiative, as there is no change in administrative costs to business.

Regulatory cooperation and alignment

These amendments do not relate to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified.

Rationale

An update to the investigative body designations that became outdated following a name change or a reorganization of the federal institution to which the investigative body belongs prevents any confusion concerning the identity of the authorized bodies to which personal information can be disclosed. In particular, IRCC-PEID has experienced difficulty obtaining some of the information that it requires to carry out investigations that maintain the integrity of the Canadian passport program due to the fact that it is not currently designated as an investigation body for the purposes of paragraph 8(2)(e) of the Privacy Act. These amendments will clarify that government institutions are authorized to disclose personal information to the two designated entities for the purposes of carrying out lawful investigations or enforcing laws, in accordance with paragraph 8(2)(e) of the Privacy Act.

Implementation, compliance and enforcement, and service standards

Implementation

The amendments come into force upon registration. The bodies in question already carry out investigations and law enforcement activities. The necessary staff and infrastructures are already in place and new resources will not be required.

Compliance and enforcement

No new compliance and enforcement measures are required to support implementation of the amendments.

Contact

Carolina Mingarelli
Director and General Counsel
Centre for Information and Privacy Law
Department of Justice Canada
284 Wellington Street, 3rd Floor
Ottawa, Ontario
K1A OH8
Telephone: 343‑997‑5607