Privacy Commissioner of Canada's Appearance before the Subcommittee on National Security of the Standing Committee on Justice and Human Rights

February 10, 2003
Ottawa, Ontario

George Radwanski
Privacy Commissioner of Canada

I very much appreciate the opportunity to meet with this committee today.

There's both irony and appropriateness in meeting with the committee on security to discuss the concerns I have, irony for this reason, that the government initiatives, whether current or contemplated, that concern me the most are not about security at all. That's what they have in common, that they are not really about security, although they are under the guise of anti-terrorist security. In another sense, I think it's tremendously important to speak to this committee, because I believe this is a body that can play a real role in drawing the line between what is legitimate in the name of security and what is not.

As I said in my annual report, recently tabled, in Canada today the fundamental human right of privacy is under unprecedented assault. A series of government initiatives, either under way or being contemplated, threatens to cut the heart out of privacy as we know it. We are at risk of losing privacy rights we have long taken for granted. These government initiatives grew out of a call for increased security after September 11, and anti-terrorism is their purported rationale. I use the word purported advisedly, because the aspects that present the greatest threat to privacy either have nothing at all to do with anti-terrorism or they will do nothing to enhance security. The government, quite simply, is using September 11 as an excuse for a number of measures that have no place in a free and democratic society.

I want to be very clear on one crucial point. As Privacy Commissioner, I have always emphasized that I will never stand or seek to stand in the way of measures that are necessary to protect us against terrorism, even if they do involve some new intrusion or limitation on privacy. The simple fact is that I have not, in reality, raised privacy objections against a single genuine anti-terrorist measure. What I have opposed, and what I must oppose, given the responsibilities entrusted to me by Parliament, is the extension of anti-terrorism measures to unrelated purposes and intrusions on privacy whose value as anti-terrorism measures has not been at all demonstrated.

I'm talking specifically about the Canada Customs and Revenue Agency's new Big Brother passenger database; the provisions of proposed section 4.82 of the Public Safety Act; the lawful access proposals to enhance state powers to monitor our communications; the proposal for a national ID card with biometric identifiers; and the government support of police video surveillance of public streets. These initiatives, in and of themselves, are all cause for deep concern because of the way they violate our privacy, but they're even more disturbing because of the thresholds they cross and the doors they open. Each of these measures sets a dangerous precedent. They redefine privacy and redraw the lines of what's an acceptable invasion of privacy. What has long been unthinkable in a free society threatens to become not just thinkable, but a fait accompli.

With the CCRA database, the state will, for the first time, create dossiers of personal information on law-abiding citizens for almost any governmental purpose. What we're talking about here is a database of all the information on all our foreign travels as law-abiding Canadians, where we go, for how long, with whom we travel, how we pay for our tickets, even including our credit card numbers, what seats we select on the plane, what contact numbers we provide, and even any dietary preferences we may indicate to the airline, whether kosher or halal, which may indicate religion to the government, or salt-free or what have you, which may indicate medical conditions. All this information will be kept for six years and be available for an almost limitless range of governmental purposes under the information sharing provisions of the Customs Act, including being available, to give just one example, for routine income tax investigations, or to try to infer possible criminality completely unrelated to terrorism simply from our travel patterns.

Bill C-17, the Public Safety Act, will introduce a requirement that we, in effect, identify ourselves to the police when we travel. What I'm referring to here is the fact that when you board a flight these days, even a domestic flight, you have to show photo ID to the airline to confirm your identity. Bill C-17 will make all passenger information available to CSIS and the RCMP. I have no objection to this for the primary stated purpose, which is obviously to look for known or suspected terrorists. I doubt that will be very effective, but I don't object to it. What I do object to, as I must, is the provision that also permits the RCMP to scan passenger information for anyone wanted on a warrant for any of a wide range of Criminal Code offences completely unrelated to terrorism and to notify local authorities to have that individual picked up. First, that amounts, in the circumstances, to de facto self-identification to the police. As we go about our normal law-abiding business in Canada, unless we're carrying out a licensed activity, such as driving, we don't have to identify ourselves to the authorities, but if the police can check passenger lists to see who's wanted for an offence unrelated to terrorism on an airplane, why not when we take a train or a bus or rent a car or check into a hotel? Why, once the principle is accepted, should the police not be able to pull cars over and check the identity of all the passengers and look in the database to see if they're wanted for anything? It opens a door that should not and need not be opened and has nothing to do with the stated purposes of anti-terrorism.

The lawful access proposals involve giving state authorities, both police and security, greatly enhanced and facilitated access to records of e-mails we receive and send, our Internet browsing, including not only what website, but what page we open, cell phone information, and so forth. They're measures to gain access to our information that don't exist in the case of regular letter mail or buying books. So again, this opens doors that should not be opened.

The proposed national ID card, which is being promoted by Minister Coderre, would remove our right to be anonymous in our day-to-day lives and gravely infringe on privacy, for no readily apparent purpose.

Police video surveillance, as it's practised by the RCMP on the public streets of Kelowna, allows the state's agents to observe and monitor law-abiding citizens as they go about their everyday business in public. As you may know, I have initiated a charter challenge to that video surveillance, and the Minister of Justice is trying to prevent it coming to trial on the merits by questioning the right of the Privacy Commissioner to ask the courts to determine whether a grave intrusion on privacy is contrary to the privacy protections in the Charter of Rights and Freedoms.

I want to close my opening remarks by saying that if these measures are allowed to go forward and the principles they represent are accepted, there is a very real prospect that before long Canada will scarcely be recognizable as the kind of free society we know today.

Thank you very much.

The Chair: Thank you, Mr. Radwanski.

We'll go now to questioning. I would remind colleagues that Mr. Radwanski's focus is privacy, being the Privacy Commissioner. Our focus at this committee comes from the perspective of security and the federal agencies that work in that envelope. So I would ask that you attempt to keep within the envelope that deals with the security agencies. It's not a problem if we go beyond it, but let's try to keep the focus for the benefit of the committee, and that will keep our record somewhat cohesive.

So I'll start with Mr. Sorenson, opening round for seven minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, and thank you, Mr. Radwanski, for coming today. I'm sorry that I missed a great deal of your presentation. I was in the House making some presentations.

A number of times you've come before the different committees, more appropriately maybe the justice committee, with some grave concerns about the anti-terrorism law, and I'm not going to dwell on that one today. The chairman has already tried to restrict us to national security. But there are a couple of things.

It's been in the papers, in the media, the news that they weren't sure when the report was coming down, it was going to be late--maybe you touched on that in your presentation. I wonder if you can touch on why it was late. And I think you're due to report again, in June is it?

Mr. George Radwanski: I'll report again in the spring.

Mr. Kevin Sorenson: So everything's on schedule there.

As a member of Parliament, I probably receive more letters still on the gun registry than on any other issue--farmers, ranchers, hunters frustrated with the fact that they've never broken a law in their life, and now they're forced into a registry. It's not just that we're registering who owns firearms, who owns long rifles, but we're recording how many they own and the serial numbers of the ones they own. I'm wondering if you could elaborate a little on what you have said in the past about the integrity of the registry, the invasion, I believe, of privacy rights there.

With Minister Coderre coming out on the national identity card, is that going to be an invasion of privacy, recognizing the importance of transborder trade with the United States, our largest trading partner, and having a very quick way of getting across the border. How else can we do it? The status quo obviously isn't going to work. The United States has made it very evident that what they have now is not acceptable. They may be concerned about Canada and some of its policies, and so in order to maintain the integrity of the States, they're wanting to see something beefed up here. I think Mr. Coderre has come out with this national identity card as a quick fix. Many concerned citizens are stepping forward and saying it's invasion of privacy. How can you satisfy both security concerns and privacy concerns?

Mr. George Radwanski: That's an excellent set of questions. The first one I didn't remark on today, but I do address it in the annual report. The reason it is late is that I have been trying intensively to achieve some progress on the issues I was summarizing today and have been in discussions with the government. I had hoped to be able, in my report, to say progress has been made or some issues have been resolved, others have not. There always seemed to be a point where I was hopeful that something would be achieved, so I wanted to wait, and at some point I couldn't wait any longer, so I went forward.

With regard to the gun registry, without getting too involved in that today, as you know, my office and I reviewed the firearms registration program and made more than 30 recommendations. Not one of those has yet been accepted by the Department of Justice. We are continuing to monitor the integrity of the program, outsourcing, and so forth. I don't want to get drawn, if I can help it, with the agreement of the committee, too deeply into that today, only because one could talk about that issue at great length, and I wouldn't want to deflect from the broader issues I'm raising.

With regard to the identity card, you raise the question of transborder trade and access to the U.S. A document already exists that is appropriate for crossing borders, whether it be with the U.S. or any other country, and it's a passport. Some people may have no interest in going to the U.S., for example. There's no reason at all they should be subjected to retina scanning or fingerprinting by the Government of Canada.

Is it an invasion of privacy? Absolutely. First, for the government to fingerprint or retina-scan every citizen in some kind of program--even if it's initially voluntary, it would no doubt soon become mandatory--would be a huge invasion of privacy. Second, we are not a society where the police can stop you on the street and say, your papers, please, as is the case in some other countries of the world. Many people have come to Canada and made it their home precisely because we're not that kind of society. If you have an ID card, naturally, there will be movement towards requiring its production for more and more purposes. Even Mr. Coderre is already talking about how it could be used for a whole variety of functions, anything from drivers' licences to health records. It could cause a consolidation of information about individuals that, again, would be a huge intrusion on privacy.

The cost would be, quite frankly, astronomical. Based on the analysis I've seen for proposals for a similar kind of card in Great Britain--which are running into very stormy waters, I might add--I would estimate that the cost of not only the card program itself, but also installing readers, because a biometric card without a great many readers to read the card is of no use at all, is in the vicinity of $3 billion. You can imagine how much good could be done with that money, for health care, for the cities, for defence, for a whole variety, rather than for needlessly intruding on the privacy of Canadians.

I'll stop there.

Mr. Kevin Sorenson: Thank you.

The Chair: Monsieur Lanctôt, for seven minutes.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman. Thank you, Commissioner.

I will concentrate my questions on the identity card and your concerns, and not on your recommendations, since one suspects that the recommendations will not be implemented.

The other commissioners, auditors and the Commissioner responsible for the Access to Information Act may be somewhat forthright in their recommendations and concerns about the issues they deal with, but the government always takes their suggestions a little more into consideration than yours, in the sense that it tries to make changes. It does not happen quickly, but there is an effort made, whereas your recommendations and concerns are well-known. Even though the report was late and was not made public, we had a fairly good idea of what you were thinking, which is normal. In a free and democratic society like ours, bills such as C-36, C-17 and S-23 are bound to provoke a reaction from you that this is really an intrusion into people's privacy.

I agree with you that people may have chosen places where they live or where they would like to live. I am wondering what the situation is like elsewhere. How many countries are using identity cards with biometric data, fingerprints or retina scans?

I think that we have gone a long way down this road. People have used the Big Brother analogy. It was already hard to believe that so much information was collected about Canadians and Quebeckers. Now it is being done overtly. The information is being collected openly, and the RCMP or CSIS have access to information about you and me. It started with information about our air travel, but it is getting even more specific. If the identity cards are brought in, it means that all of us, even our children, can be tracked when going to different places. The authorities will know what kind of country we have visited.

Does that correspond to our vision of a free and democratic society? I am sure that you will answer that it does not, but what are the commissioner's real recommendations? Yes, you are going pubic. That is a good idea because people need to know, but what can you do-and I know that you do not have the power to force the government-to ensure that your recommendations and concerns are treated seriously so as to prevent-I use the word intentionally-certain bills from becoming law and Canadians being told that they were passed because of terrorist acts that have taken place? Why not specify the connection with actual terrorist acts? We are in the realm of fiction, with the scenario being that everyone is considered a potential terrorist in our society.

I'm not sure if that is the kind of country I want to live in.

Mr. George Radwanski: I completely agree with you, but as you say, I do not have the power to force the government to accept my recommendations. You, as parliamentarians, have that power. It is up to you to pressure the government. In every case, I have made quite specific recommendations in my report, and I am simply not being listened to. The argument is always that these measures are needed for security in the fight against terrorism. When I try to explain that the initiatives that I take issue with have nothing to do with terrorism, the government simply ignores my explanations. That is the problem that I am bringing to your attention. I am doing everything that I can. Except for raising these considerations and explaining the problem, there is frankly nothing I can do, unfortunately.

Mr. Robert Lanctôt: You have a thankless task.

Mr. George Radwanski: It is a challenge.

Mr. Robert Lanctôt: As to how much...

Mr. George Radwanski: I am in an ombudsman position. That is usually the way it works, but it can only work if the government accepts the rules of the game. When an ombudsman makes a recommendation or raises serious enough concerns, the government should not reject them without careful consideration.

Mr. Robert Lanctôt: And what do you have to say in response to the specific question I asked: which countries use this type of national identity card containing fingerprints, biometric data, retina scans and so on? Do you know if there are countries already using this type of card?

Mr. George Radwanski: There are some European cards that have had an identity card for a long time, but without any biometric data. This is new technology. I do not know of any countries that are already doing this. It would certainly not be a large country, because it is extremely expensive, apart from any other considerations.

[English]

The Chair: Thank you, Monsieur Lanctôt.

Mr. Borotsik, for seven minutes.

Mr. Rick Borotsik (Brandon-Souris, PC): Thank you, Mr. Chair.

Thank you, Mr. Radwanski, for being here. I'm a fan of yours, and I hope more people listen to your message, sooner rather than later. Just as a comment, I recently had the opportunity of visiting Cuba, and I can assure you that they do have a situation there where they can pull people off the streets and ask for their papers. A number of people who were speaking to a Canadian said the one thing they valued Canada for was its freedoms. I would hate to see those freedoms lost, and I do ask you to be a sentinel, if you will, to protect those freedoms for us as Canadians.

On the CCRA database, we've experienced something just recently in western Canada, where there was a database that was stolen, from The Co-operators. There are huge implications, huge problems. I know you can't speak to the security of databases, but if the CCRA database that is being proposed is in fact put into place, do you see potential there for something similar? Again, you can't talk to the security of the database, but we thought it wouldn't happen with Co-operators either. Could it happen, and if it did happen, what are the ramifications of that kind of information becoming the property of somebody who perhaps has other uses?

Mr. George Radwanski: While I have very grave concerns about that CCRA database, the security of the base itself, in this instance, isn't a particularly big concern, because the CCRA does have a very good record of protecting the security of things they have. There's certainly no question of farming it out, outsourcing, keeping this database, and so forth. The worry, which is even greater in a sense, is not what could be done illegitimately with all this personal data, it's what can be done legitimately, because of the broad range of uses. The ostensible reason for keeping it was forensic anti-terrorism. If there should be another terrorist act, the government wants to be able to look through the six-year database for accomplices and what not. And I took the position that if that's all they wanted to do, I wouldn't object, although I was doubtful, but then they insisted it had to be available for limitless other governmental purposes under the information sharing provisions.

Mr. Rick Borotsik: Let's segue into that. You mentioned that what starts off with information gathered from the airlines quite simply could be expanded to other modes of transportation.

Mr. George Radwanski: They intend to.

Mr. Rick Borotsik: That's the slippery slope you speak of when you start gathering that kind of information. Who's driving this process? We talk about the minister, who obviously is throwing up some roadblocks for your place, but who, in your opinion, is driving this process? Is it the police? Is it the U.S., as we've heard from some others? Is it the bureaucrats? I'm nervous and concerned about it, but in your opinion, who's the driving force?

Mr. George Radwanski: I honestly can't tell on that database. The U.S. certainly has an interest in the information being kept for that forensic anti-terrorist purpose, but the U.S. is indifferent as to whether it's used for routine income tax investigations or whether, as the minister has said they would, they try to deduce things from your travel patterns--for instance, if you take a certain number of trips to a country like Thailand, where there's a flourishing child sex trade, you might be flagged as a possible pedophile. I don't think the U.S. is asking us to do that.

Mr. Rick Borotsik: So who's driving it?

Mr. George Radwanski: I suspect it's simply a combination of institutional pressures or opportunism, in the sense that once there is information available, government departments and law enforcement bodies say, if it's going to be there, we may as well have access to it, and so there's an unwillingness to accept any restriction. But frankly, what makes no sense about this is, if there was no perceived need for this information for other than anti-terrorism purposes before September 11, and there explicitly was not, why the devil would there be now? It makes no sense.

Mr. Rick Borotsik: I have a very serious question. Why are Canadians not listening? You have a message you've been putting out there, and this committee, the opposition in particular, is trying to help you with that message. Why are Canadians not listening? Some are, but generally, Canadians aren't listening to your message.

Mr. George Radwanski: In part I would say they are. I've had very supportive editorials in every major paper in the country, right, left, middle, you name it. I have a stack, still growing, of letters and e-mails from people across the country. Part of it is an unwillingness to believe our political leaders, who are perceived as, and are, ordinary decent people, not fascists or tyrants, would do the kinds of things that have such dangerous implications as I'm describing. A second factor is that there's fear of terrorism, and it's easy, without reflecting very carefully, to just say, whatever makes us safer, and they wouldn't be doing it if it didn't make us safer.

Finally, I must add, the thing has not had the kind of parliamentary take-up I would hope for. I don't know if it's made an issue in caucus by government members, but it's certainly not in the House. If my colleague the Auditor General raises any indication that the government has been careless with some of our money, there's a tremendous uproar in Parliament. I have said in the clearest possible terms that the government is being careless with our fundamental human right of privacy, from which so many of our other rights follow, and there have been maybe two questions in question period. There is simply not the outcry from the people to whom I report and who really are the recipients of my message. So part of my intent in meeting with you and any other committee that'll hear me is to ask Parliament to take seriously the job I am doing on its behalf. It's not for me here to ask questions of you, but I'm puzzled why there is not an uproar in Parliament when the officer of Parliament mandated to oversee privacy rights on your behalf says this thing is going off the rails.

The Chair: Thank you, Mr. Borotsik.

Mr. McKay, seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Radwanski--articulate, as usual.

I just was reading a submission on Bill C-17 by the Canadian Bar Association, and I'm assuming that your sentiments are parallel to theirs, since they quote you extensively.

Mr. George Radwanski: I would agree with the parts where they quote me.

Mr. John McKay: All of the quotes are with approval. Their first and probably most significant recommendation has to do with the warrants that are issued, and they're right to say, as airline lists get scoured, you can't help but think they're going to get used. I think they say it's naive to think they won't be used for purposes other than terrorist activities. Immigration comes to mind, and tax evasion comes to mind, and probably ordinary criminality comes to mind. Their proposal is quite Draconian, and it recommends that all references to warrants be eliminated from Bill C-17. Am I to assume that would be your view as well?

The Chair: Can I just interrupt? It would be helpful if we could clarify what type of warrant we're talking about, because there are warrants to go and do things, warrants to pick up, warrants to arrest.

Mr. John McKay: Only Mr. Lee would know all the kinds of warrants.

The Chair: Back in the justice committee earlier, or sometime last week, there was still a confusion. So perhaps, Mr. Radwanski, you could address that in your answer.

Mr. George Radwanski: I'd be very happy to. My concern is only with one specific proposed section of Bill C-17, 4.82, most specifically subsection 4.82(11), and in an ancillary way, subsection 4.82(1), where there's a definition of warrant that I also would like to see deleted. Other issues in other parts of the bill may touch on civil liberties, but they don't touch on privacy, so I'm not addressing those. For proposed section 4.82 the problem is that this provision of giving the RCMP and CSIS access to passenger information is for purposes of transportation security and, obviously, anti-terrorism. That means they should be looking in the database that contains information about known or suspected terrorists or security risks, the SCIS database. They shouldn't, in the first place, be hunting in the much broader CPIC database, which has all this information about warrants and everything else, because it's not limited to that purpose.

The argument the government uses is, if, while looking for terrorists, we incidentally came upon a wanted murderer sitting in the seat next to you, the RCMP should surely have the power to notify local authorities and cause the person to be arrested. Of course they should, but for that you don't need the reference to warrants, because every police officer has not only a common law right, but a duty to do whatever is necessary to effect apprehension if he becomes aware that someone wanted on a warrant for a major criminal offence is around. So you don't need it if it's incidental. Where there's a reason they might have put it in is if it's not incidental, if they're going to be looking systematically for people wanted on warrants. If you're fishing in CPIC, for example, and find someone wanted on a warrant for a Criminal Code offence, that's as incidental as throwing your fishing line into a pond stocked with trout and pulling out a trout.

So I do argue that there's absolutely no need for reference to individuals wanted on a warrant in that provision. I can't comment on other parts of Bill C-17, but in this one the fix is to take out the reference to warrants, and everything that's necessary for transportation security and anti-terrorism can still be done. If there's truly an incidental finding of criminals wanted for something else, the common law powers of the peace officer are abundantly sufficient to do what needs to be done.

Mr. John McKay: Do you have an opinion with respect to the argument that was put forward by the CBA to the effect that the period of time for destruction of the documents should be shrunk from seven days to 24 hours? You have to think that if they're keeping them around for seven days, they're passing them around to various organizations to sit in their various data banks and be correlated to other information. What's your view on that?

Mr. George Radwanski: I recommended that with regard to the previous bill, Bill C-55 I guess it was, and the recommendation still stands, but I've narrowed what I'm insisting on and emphasizing. The far greater problem is the broad principle that's being established. When we have CCRA keeping information for six years, the seven days seems a little less daunting. I did recommend that it only be held for 24 hours. They're not free to pass it around to other bodies, there's no provision in the bill that would allow that. If they started doing that, it would be a very serious matter. Their argument, as I understand it, is that because there is a provision whereby they can retain the information longer, for up to a year if they document the cause pertaining to an individual and they want to look for a pattern, they need time to look at the stuff and figure out if they need to make a case for retention.

I'd prefer 24 hours. I wouldn't go to the wall on it. What I am going to the wall on, to the extent that I'm able, is this issue of the warrants.

The Chair: Thank you.

Did we establish, then, that we're talking about arrest warrants that police use or bench warrants that courts issue when individuals fail to show up? That's the kind of warrant we're talking about.

Mr. George Radwanski: We're talking about a warrant pertaining to lists of Criminal Code offences that will be specified by regulation. I saw a draft list, and it ranges all the way from violent offences, such as murder and kidnapping, all the the way to procuring or forgery.

The Chair: These are arrest warrants.

Mr. George Radwanski: Arrest warrants, yes.

The Chair: Warrants for the arrest of individuals who are before the courts or have been convicted.

Mr. George Radwanski: Yes. In the previous version, Bill C-55, it was all offences punishable by five or more years imprisonment. All they've really done now is draw up a few of the more blatantly ludicrous things to include in that, such as altering the brands on cattle or misappropriating driftwood timber, which I was using as examples in my speeches on Bill C-55.

The Chair: Thank you.

Mrs. Jennings. We're now at five-minute rounds.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce-Lachine, Lib.): Thank you, Mr. Chair.

I want to touch on two issues, one of which we discussed at the justice committee, the other we did not, but you raised it in your presentation, so I'm going to raise it with you, the national identity card. You have made clear your view that you are simply opposed to it and find it to be an intrusion on the privacy of Canadians. You make the statement that there are European countries that have had national identity cards for a long time. My understanding is that it's now being looked at by one of the standing committees. What I've actually heard the minister talk about is that it could very well be a voluntary thing. If it's voluntary, what is your view on that?

Mr. George Radwanski: I find that, to be honest, quite disingenuous.

Mrs. Marlene Jennings: Why?

Mr. George Radwanski: Because if any initiative of this kind were voluntary, you'd still be talking about a massive investment, not only in the technology, but in the readers and so forth. It's my experience, and I'm sure yours, that with all these sorts of things, what starts off as voluntary very quickly becomes mandatory, whether by law or by subtle pressure. Look at something as simple as automated teller machines. When they were first introduced in banks, it was just another option for customers. It didn't take long for the number of tellers to be reduced and the number of options available to be reduced, so that what's nominally voluntary, becomes mandatory.

Mrs. Marlene Jennings: But, Mr. Radwanski, you will agree there is absolutely no legal obligation in Canada for someone to self-identify. That's what the whole privacy thing is. Police officers at this time have no legal authority to oblige any person to self-identify, unless they have reasonable grounds to believe the individual has committed an offence.

Mr. George Radwanski: Yes.

Mrs. Marlene Jennings: So even if we had a national identity card, whether it had biometrics or non-biometrics attached to it, if it's voluntary, I do not have to self-identify unless the police officer clearly states to me the grounds upon which he or she is asking me to identify myself, and it has to be that they have reasonable grounds to believe I've committed some kind of offence that allows them to identify me. Even if I'm walking around with a national ID card, I don't have to show it, right?

Mr. George Radwanski: In a perfect world that would be true.

Mrs. Marlene Jennings: We don't live in a perfect world--

Mr. George Radwanski: Exactly.

Mrs. Marlene Jennings: --but the overwhelming majority of Canadians do not self-identify, and the overwhelming majority of police officers do, in fact, respect the law.

Mr. George Radwanski: Yes, but let me give you an example. When the CCRA originally got amendments to the Customs Act to obtain all passenger information, they undertook in writing that it would be destroyed within 24 hours, there would be no database. Now look where we are. It's in the nature of these things that once--

Mrs. Marlene Jennings: Was the undertaking in the legislation? No.

Mr. George Radwanski: First of all, legislation can be amended by any Parliament at any time.

Mrs. Marlene Jennings: True.

Mr. George Radwanski: My point is quite simply that once you go down the path of identity cards, it's a short step from voluntary to mandatory, and second, there may be no law at this point requiring self-identification, but you'd better believe, when people start carrying these cards, it won't take long for law enforcement to argue that it's crazy not to be able to check people's identities. The thing just takes on a life of its own. What I say in my report is that the place to stop inappropriate or unnecessary intrusions on privacy is at the very first step, because if you don't, it just becomes harder at each point along the way. And the case simply has not made.

I'll admit to not understanding what Mr. Coderre is doing, because, frankly, it's a moving target. One day he raises one argument, the next day he raises another. He's proposing this, he's not proposing it. We should have a debate. There'll be no database behind it. Well, there might be a database behind it. It's very difficult to comment on what is not even a proposal. On the other hand, it's hard for me to believe a minister of the Crown raises an initiative like this or a parliamentary committee goes to this much trouble studying it unless the government has some intention to do it. You and I may disagree, you may see no problem with it. From the perspective of my responsibilities, I'm appalled by it.

Mrs. Marlene Jennings: Do I have any more time?

The Chair: That's the five.

Mrs. Marlene Jennings: Put me down for another round.

The Chair: Okay.

I have a question I want to throw out. This may seem counterintuitive, but of all the agencies we've referred to here today, Mr. Radwanski, the one that is constrained in gathering together information about individuals, private or otherwise, is CSIS. Even though these databases exist, it is, as I understand it, pretty clear in law that CSIS doesn't have access to any of it unless it has gone through its own processes, opened a file, obtained appropriate warrants, and followed the procedures there. And CSE wouldn't go to these databases at all, because they simply gather signals intelligence. So in a very strange way, the two agencies that have been and in law are apparently the most intrusive upon our privacy don't have the legal ability to go and use this stuff we're all concerned about. It is the other agencies whose hands are apparently not tied, the CCRA, agencies with whom they have MOUs, the RCMP, who are not apparently constrained, except on a policy basis, in their security offences directorate. Could you comment on that? Have I got a good picture of that?

Mr. George Radwanski: I think you do. We are carefully looking at and monitoring what CSIS is doing, and we're currently reviewing, in the wake of September 11, what is being done, to make sure it's all appropriate. As I've said, I would, apart from anything else, never seek to stand in the way of legitimate security measures designed to protect us against terrorism or other threats to national security. The activities of CSIS are relatively easy to understand with regard to the intelligence function and the security function. Where the problem arises is with other agencies and bodies invoking security and September 11 for purposes that really do not relate to security. So your point is well taken, and it's ironic, in a way, that the body that has the clearest mandate for security isn't seeking, for instance, in Bill C-17 indefinite retention of everything, it's CCRA, which has no mandate, certainly for after-the-fact anti-terrorist forensics. I don't know where they came up with the idea that they have that mandate. Then they'll share it with everybody else for other purposes. It's such entities that are invoking September 11 as a blanket reason to do whatever they want.

The Chair: I saw a recent notation, I guess in the statute itself, that one of the reasons CCRA does collect this information and maintain its database is for the health and safety of Canadians. Is that narrow enough for you?

Mr. George Radwanski: There's no statutory authority for this database, period. In fact, I believe they lack parliamentary authority. As you know, I've had opinions from three of the most eminent legal experts in the country, a retired justice of the Supreme Court, a former Deputy Minister of Justice, who helped draft the charter, and a former Minister of Justice, all saying this thing is contrary to the charter and lacks parliamentary authority.

But when you talk about health, I know Minister Caplan raised this argument: suppose a plague-carrier comes into Canada, we have to be able to track it back. First of all, there aren't a heck of a lot of plagues with a six-year incubation period that you can contract on an airplane. But setting that aside, the airlines and Health Canada already have procedures for when there's an incident of someone having come aboard with some highly contagious disease. They have a process whereby they're able to track other passengers on the flight and so forth. Airlines do keep manifests for a limited period. So that again is completely spurious.

The Chair: Thank you.

Just for the record, when I asked you the question, my tongue was so firmly in my cheek I almost bit it.

Mr. Sorenson, do you have another round?

Mr. Kevin Sorenson: I don't think so.

The Chair: We'll go to Mr. McKay.

Mr. John McKay: The last time you appeared before the justice committee, you talked about Kelowna.

Mr. George Radwanski: Yes.

Mr. John McKay: I know you've worked hard on that since. You've actually instituted litigation about it. I see the government is challenging your authority to instigate litigation. I'm curious as to how that works. What's the basis for the government's challenge to your authority to instigate litigation?

Mr. George Radwanski: The Minister of Justice is saying that as Privacy Commissioner, I am a statutory body created by the Privacy Act, and therefore I am limited to doing only those things that are spelled out in the Privacy Act. Since the Privacy Act says nothing about mounting charter challenges, I have no right to do it. Of course, the Privacy Act also says nothing about appearing before committees like this, nothing about the government consulting me about various initiatives before the fact, nothing about the Treasury Board policy of privacy impact assessments, which are now to be developed by departments for any new initiative that has privacy implications and, under the policy, are to be submitted to my office for review and comment. The Privacy Act says nothing about the PIPED Act. So to me, it's an absurd position, and my lawyers are confident that we can prevail, but there's a philosophical difficulty and there's a practical difficulty.

The philosophical difficulty is that I find it deeply disturbing that the justice minister of Canada, on behalf of the Government of Canada, is taking the position that the Privacy Commissioner of Canada, the officer of Parliament mandated to oversee and defend privacy rights, should not or does not have the right to ask the courts to determine whether a grave intrusion on privacy, described as such by retired justice La Forest in the opinion he provided to us, contravenes the privacy protections in the Charter of Rights and Freedoms. That is deeply disturbing.

What is even more disturbing than the philosophical aspect is that if the government is committed to this path, assuming that the motion to have it thrown out of court fails, as my legal advisors believe it will, simply by appealing all the way to the Supreme Court, the government can keep this issue from being heard on the merits for two to three years. Not only is that inappropriate in principle, it's also unfair to municipalities and police forces across the country, some of which are very interested--wrongly, in my view--in installing street video surveillance and are waiting for this matter to be disposed of by the courts. If the government believes this thing cannot withstand a charter challenge, let it say so and let it order the RCMP to wind up the cameras. If it believes it is not contrary to the charter, the role of the government is surely to permit the courts to make that pronouncement.

Mr. John McKay: The other thing has to do with Bill C-36, which was a piece of legislation embraced with a great deal of haste. I wonder at times whether we're going to repent. I'd be curious as to how you see Bill C-36 operating, now that we're nearly a year and half on.

Mr. George Radwanski: There were a lot of issues in Bill C-36 on which I might have had an opinion as an individual, one who's been concerned about civil liberties, but as Privacy Commissioner, I had only a very small number of issues to engage my official attention. They centred around an ill-considered provision that would have effectively permitted the government to abolish all privacy law, as you may recall, at the stroke of a pen. It took quite a lot of effort and the help of parliamentarians on that one, for sure, and that provision was in fact rolled back to what was the government's stated intent, so I actually had occasion to thank the government for having done the right thing on that one. I haven't had specific privacy concerns about the operation of Bill C-36, although I repeat, that does not involve commenting on other aspects of the bill that may engage the interests of civil libertarians, but don't involve privacy per se.

Mr. John McKay: Thank you.

The Chair: Mrs. Jennings, and then Mr. Lanctôt, for five minutes each.

Mrs. Marlene Jennings: Thank you, Mr. Chair.

To come back to Bill C-17, which you raised in your presentation, you presented before the justice committee at the same time as Mr. Clayton Ruby, I believe.

Mr. George Radwanski: Not on Bill C-17. I haven't appeared before the justice committee. That was a special committee

Mrs. Marlene Jennings: Excuse me, the legislative committee.

Mr. George Radwanski: I didn't appear at the same time as he did, but I appeared.

Mrs. Marlene Jennings: Immediately preceding.

Mr. George Radwanski: Yes.

Mrs. Marlene Jennings: Mr. Ruby stated that in his view, proposed section 4.81 would meet the charter provisions, is constitutional, that proposed section 4.82 would not meet a charter challenge, but he stated that if the offences you could disclose to a peace officer on the basis of a warrant were specifically related to air transportation security or national security, it might. He also stated that if there was a prior judicial order allowing access to that information, if it was collected under section 4.81, for any criminal offence for which an arrest warrant had been issued, it would meet a charter challenge. Are you in agreement with that?

Mr. George Radwanski: I'd have to study the 4.81 argument. I wouldn't want to comment on the point about the preceding judicial order.

Mrs. Marlene Jennings: You're not prepared to comment on that.

Mr. George Radwanski: That one's new to me, so I wouldn't want to get into it.

As to warrants related to threats to national security and so forth, that takes us right back to where we were. If the police were only looking in the database pertaining to national security, that's where they would find reference to such warrants and so forth, and obviously, again, you don't need a reference to warrants to take the appropriate action. My concern is that by putting the reference to warrants in there, you're opening all kinds of doors you don't need to open.

Mrs. Marlene Jennings: Even if the reference is not there, if a police officer goes before a judge to get an arrest warrant issued and makes an argument that he or she has reasonable grounds to suspect that the person for whom an arrest warrant is going to be issued may be travelling by air, once the legislation goes through, they can request a judicial order that would order the person designated under the law to collect that information to look for that person's name.

Mr. George Radwanski: They've been able to do that without this.

Mrs. Marlene Jennings: That's what I just said.

Mr. George Radwanski: But before Bill C-17, the police have always taken measures, when somebody is wanted, to go to the airlines--

Mrs. Marlene Jennings: Exactly.

Mr. George Radwanski: --so you don't need that provision in the act for that purpose either. I think we're saying the same thing.

Mrs. Marlene Jennings: Right, but given that they already have that possibility, what is the problem if it's specified in the legislation?

Mr. George Radwanski: It is that it gives them a great many other possibilities. If it's redundant, the government should have no objection to dropping it. If it's not redundant, ask the government why the devil it's so keen on keeping it. That would be my argument.

Mrs. Marlene Jennings: Thank you.

The Chair: Monsieur Lanctôt, for five minutes.

[Translation]

Mr. Robert Lanctôt: I know that we are generally on the same wavelength regarding these issues. But since C-36 was passed, have your investigations or those of your team brought to light specific information that was provided or transmitted and that should not have been, either from one department to another or to individuals? Do you have a mandate to do that kind of investigation?

Mr. George Radwanski: We do audit the activities of CSIS, the RCMP and the CSC to check that they are doing only what is legally permissible. For the moment, however, I would say that we have not found anything. Up to this point, I do not have anything to report to you.

Mr. Robert Lanctôt: How many employees do these audits? Are they public servants or private firms, or is the work contracted out? How does it work?

Mr. George Radwanski: The work is done by investigators from my office.

Mr. Robert Lanctôt: How many investigators are there?

Mr. George Radwanski: I would prefer not to get into the details and say how many investigators we use for this or that case. That gets into our internal operations.

Mr. Robert Lanctôt: Are we talking about hundreds or dozens of investigators?

Mr. George Radwanski: I have about 40 investigators in my office, but I would prefer not to reveal how many investigators are involved in one case or another. Frankly, it is a matter of internal operations and I would prefer not to discuss it.

Mr. Robert Lanctôt: In cases that you have already dealt with, when you have come across something of concern, have you assigned more investigators to the case?

Mr. George Radwanski: We assign as many investigators as we can, depending on the case and the rest of the workload. We oversee the implementation of two statutes and we receive a large number of complaints; we do our best with the resources we have.

Mr. Robert Lanctôt: You have not had any complaints with respect to C-36 up to this point?

Mr. George Radwanski: No, not specifically.

Mr. Robert Lanctôt: Does that surprise you?

Mr. George Radwanski: I do not have any opinion on that, frankly. We will see; after all, that is just beginning. We have not received any up to now, but that can change from one day to the next.

Mr. Robert Lanctôt: Thank you.

[English]

The Chair: Thank you.

Could I address some specifics in this legislation, to make sure we have it on the record properly?

There are now being put together or evolving databases of personal information. One of them is being developed by CCRA under Bill S-23. Is that correct?

Mr. George Radwanski: Yes, though I would say it's not under the legislation, it's going beyond the legislation.

The Chair: Okay. Anyway, it's in process.

Then there is another database that was developed under one of the air transport statutes to collect the passenger lists, so that we could turn them over to the American agencies when Canadian flights flew into the U.S. Is that correct?

Mr. George Radwanski: That's not a database per se. I refer to a database as something keeping and holding information. That one simply empowers the airlines to provide the information to American authorities about pilots on in-bound flights. The Americans may have a database on this, but there is no Canadian database resulting from that.

The Chair: Are you sure?

Mr. George Radwanski: The whole point of my intervention in that instance was that Canada not benefit by a back door in receiving this stuff in any systematic way. Of course, if it gets reported with regard to a specific individual who is a security concern or something, that would be entered into, but it's not all disgorged back into Canada.

The Chair: Okay.

Then we get to Bill C-17, which does create a database from the passenger lists.

Mr. George Radwanski: Not exactly. A lot of people get confused between the CCRA database and Bill C-17. Bill C-17, for the most part, involves reviewing this information in real time, holding it for a maximum of seven days, and then destroying it. So it's not a database in the true sense of the word. Some information on some individuals would be retained to look for patterns or whatever. It would have to be documented why it's being retained. It would have to be authorized at the highest levels and reviewed annually. So my issue with Bill C-17 is not a database issue, but a warrant issue. It's that issue about inspecting in real time, but looking not for terrorist threats, but for general law enforcement. They are two very separate issues, but people get confused because they both refer to passenger information, and there's a spillover and people think I'm objecting to things I'm not, for instance, with regard to the Bill C-17 database. Others think what the CCRA is doing involves some kind of database aimed at looking in a prospective way for terrorists. Interestingly enough, they've never made that argument. The only argument they've made is that it would be useful in a forensic way after a terrorist incident. So they're quite separate issues.

The Chair: Mr. Lanctôt, would you like to piggyback on that issue right now?

[Translation]

Mr. Robert Lanctôt: Yes.

[English]

The Chair: Go ahead.

[Translation]

Mr. Robert Lanctôt: I would like to continue along the same lines. A maximum of seven days is a very short time to keep a data base. How do they check that the information obtained has really been destroyed? Is there an investigation or internal audit, or do people wait and expect that there will be an audit at some point to see if the information has really been destroyed? What is the system for this? Is there a system?

Mr. George Radwanski: I have the right to check any time I want. If Bill C-17 is passed in its present form, we will of course do everything necessary to ensure that there are no new data bases that should not exist.

Mr. Robert Lanctôt: Apart from your office, is there an internal audit and monitoring process?

Mr. George Radwanski: Apart from our office, there is the Public Complaints Commission for the RCMP and the Security Intelligence Review Committee for CSIS. I could not tell you what else exists.

[English]

The Chair: Mr. McKay.

Mr. John McKay: I'll piggyback on Mr. Lee's brief conversation with you. You made a curious statement there, but I'm not sure I understood it. You said information that's being gathered is really for forensic purposes after the fact. I understood that the bill was, if you will, for terrorism. Before the fact, terrorists are in-bound on flight 241, and you should be checking into this right away.

Mr. George Radwanski: That's Bill C-17. I'm talking about the CCRA six-year Big Brother database.

Mr. John McKay: Okay. Then I was confused about that.

Mr. George Radwanski: To be totally clear, well before September 11 Bill S-23, which had a number of amendments to the Customs Act, gave them access to this passenger information, ostensibly at the time solely for the purpose of identifying people for secondary screening on arrival. The reasoning was that if, for instance, you buy your ticket at the last minute, pay cash, have no checked baggage, and meet a few other parameters, maybe you're more likely to be a smuggler, so the computer would identify, say, five people on a flight who met that profile, and they would be pulled over for secondary inspection. I was assured in writing by the Deputy Commissioner of the CCRA that except for those few cases where people were identified for secondary inspection, which is an administrative use of the information, it would all be destroyed within 24 hours. There would be no retention, no database.

On the basis of that assurance, I didn't even feel the need to appear a parliamentary committee on the issue. It seemed reasonable. It was only this past summer they informed me that they've now decided to keep it all for six years. The purpose they gave me when I asked was--the only purpose I was given-- forensic. What do you mean by forensic? If there's a terrorist act and, let's say, we know the perpetrators, we'll be able to look back through this information and see who they might have travelled with or contact numbers they might have provided and so on, to help catch any accomplices and so forth. I then said, in that case, you surely wouldn't object to sealing it for solely that purpose--in case of terrorism, break glass, kind of thing--but not making it available for any other reason. They said, no, it's customs information, and under the information sharing provisions of the Customs Act it can be used for a whole range of purposes. I said, would you make it available if the income tax side asked for it for routine investigations, and their answer was yes. Then, of course, the minister started talking about catching pedophiles, and we asked what that meant. If you take a certain number of trips to certain countries, you may be flagged as a potential pedophile. If you take a certain number of trips to the Bahamas, maybe you'll be flagged as a possible money launderer.

What's pernicious about this kind of thing is that you would have no way of knowing about it. While normally, under the Privacy Act, you can see your personal information, there are specific exceptions, both for security and for ongoing investigations. So they would almost certainly invoke those, which means you wouldn't be able to explain that you have relatives in Thailand or you like the food or you like the golf or what have you. Meanwhile you might find yourself denied a security clearance or be hassled every time you arrive at a border. God knows who they'll share this stuff with. Any number of other unpleasant things could happen, and you wouldn't have a way to clear your name.

Mr. John McKay: So the aid worker who's with World Vision gets tagged as a pedophile.

Mr. George Radwanski: It's a real possibility. Of course, it has nothing to do with anti-terrorism or security, which brings me back to my point to this committee that it's very much my hope that you can apply the razor and say, here's what's security, here's what's not security. If it's not security, the government ought not to and must not invoke security as a justification for these measures. They shouldn't be wrapped up in this guise of September 11.

The Chair: Thank you, Mr. McKay.

Can I ask you to focus on Bill S-23 again from a security point of view? CCRA is the agency that screens everyone entering Canada through a point of entry, and that seems pretty reasonable. As people go through that screen, they deliver up elements of their identity; it might be a passport, it might be a photograph. I think Canadians accept that when people enter Canada, whether they're Canadians or not, their entry is going to be recorded. Up to now perhaps not all entries have been recorded, but I rather think we're getting into a stage where all entries are going to be recorded in some fashion. So if you present your passport coming back--although, technically, you don't need a passport to come into Canada, you do need identification--if they run that passport through a reader, and they do now, you're going to be recorded. I don't whether the colour of your eyes is included, but your date of birth, the time of entry, etc. are going to be recorded, along with whatever other information. I think Canadians accept that. That is our screen. CCRA, of course, doesn't record people leaving Canada, not in the ordinary course.

If those data are going to be there, and some has already been there, and if Canadians accept that they do collect the data, isn't the trick here to ensure that the data are used properly and only for the purposes the law would allow, security or other purposes? I think most Canadians would accept that. What's missing in our discussion today is how CCRA would be required, by law or otherwise, to protect the data and access to them. How do we know any public servant who gets into the computer system from the department of whatever can't gain access to it? We don't know. We don't know what MOUs have been entered into between government departments. Wouldn't that be the objective here, other than perhaps your suggestion that there's too much information, more than is needed? The screen on people entering is going to be there. Shouldn't we be providing more focus on the management protection of that personal information and destruction of it in due course?

Mr. George Radwanski: Forgive me, but we're talking about two different kinds of information here. You're quite right, the basic information about entering the country, even the country from which you enter and all that, is now available and recorded. In fact, we all fill in the little customs form when we enter the country, and they do keep that information and record it. But that's a minimum of information, where you've been, when you left the country, when you return, what you're bringing back. There's a world of difference between that and a database that records, in effect, with whom you travel, for who else you buy the ticket, with whom you sit, whether you travel economy or business class, whether you travel on points, what kind of food you order, whether you tell them you need a wheelchair. All these are elements of personal information the government has no business gathering about anybody.

If they can gather and keep that kind of personal information--and this is where the precedent comes in--other than for the most extraordinary purpose of anti-terrorist forensics, which is pretty dubious to me, but as I said, I wouldn't want to stand in the way of anything that might help a little there, once you accept that, you're really into the point where the government can keep dossiers of personal information about individuals obtained from third parties, in this case the airlines, because those things are not on your passport, not to provide you with specific service, like getting information to pay an old age pension, but simply to have it available in case it ever becomes expedient to somehow use it against you. That has no place in a free society. If you can do that with regard to our travel activities and who we travel with, why not who we stay with in hotels in Canada, why not who we associate with, why not what our interests are? You're talking, for the first time in Canadian history, about creating dossiers of personal information on individuals, sometimes sensitive information.

The Chair: Of course, Mr. Radwanski, this is derived from their in-bound travel, not their domestic travel.

Mr. George Radwanski: Yes, but so what? It's still not what you'd normally provide to the government. Who you travel with is none of the government's business, what you eat is none of the government's business, what credit card you paid with is none of the government's business. None of this has been heretofore available when we travel into Canada, and there's no justification for keeping that kind of information for six years just in case. If it's for anti-terrorism, limit it to that. If it's not, the written undertaking the government made prior to September 11, when this was before Parliament, should still be binding. To me, to the extent that they're not abiding by that undertaking, which they made to an officer of Parliament, which caused me not to object before Parliament as I would have, I would argue that they've misled Parliament, not just the Privacy Commissioner. And I have made that argument to them, needless to say.

The Chair: All right.

Although there are many other issues, colleagues may want to take up the issue of privacy as a pervasive one. You referred to a fundamental right of privacy. I would not, from a purely technical point of view, have described it as a right, as in a constitutional right, I would have described it as a pretty fundamental and important amenity in a free and open society. But you described it as a right. Can you frame for us the basis on which you describe privacy as a right for Canadians?

Mr. George Radwanski: Sure. It's the Universal Declaration of Human Rights of the United Nations and other international covenants that describe it as such. And there are the privacy protections in the Charter of Rights and Freedoms.

The Chair: Where are they?

Mr. George Radwanski: They are basically the unreasonable search and seizure provisions sections 7 and 8 of the charter, and the freedom of the person. As I say, I would direct you to two opinions I now have from former justice La Forest, who wrote most of the Supreme Court's most important decisions on privacy for many years.

The Chair: I was just thinking the bedrock statement of the privacy right is an extrapolation from our existing Constitution.

Mr. George Radwanski: And the United Nations declaration of human rights, to which Canada is a signatory.

The Chair: I appreciate the valuable work the United Nations does in the field, but we make our own law here in this Parliament.

Mr. George Radwanski: Are you disputing privacy as a fundamental human right? I'm sorry if you are.

The Chair: I'm questioning its description as a fundamental right in Canada.

Mr. George Radwanski: It's in the Charter of Rights and Freedoms, with all respect.

The Chair: If that is the case, we are abused from birth. It's probably one of those principles that is not an absolute right, but a goal.

Mr. George Radwanski: Well, all rights in the charter are subject to the provision at the beginning, limits that are reasonable in a free and democratic society. The problem is that the issues I'm raising here, I have it on eminent authority, are not reasonable in a free and democratic society, but the government would not want to allow me to go to court to litigate that, so we have an additional problem.

The Chair: My colleagues in the House also have views on this, and the House, of course, has its important role.

You've been helpful here today, and seeing no further issues coming up with members, I want to thank you very much for coming and for elaborating on the public record on these very important privacy issues. I'm hopeful that you, together with the House, for which you work, will carry on discussion of these issues into the future, so that we can keep a handle on them and do the best thing for Canadians.

Mr. George Radwanski: Thank you very much for your and the committee's kind interest in this matter.

The Chair: Thank you for coming today.

This is an excerpt of the committee transcript. For a transcript of this meeting in its entirety go to: http://www.parl.gc.ca/InfoComDoc/37/2/SNAS/Meetings/Evidence/SNASEV02-E.HTM