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Annual Reports to Parliament 2001-2002

The Privacy Commissioner of Canada
112 Kent Street
Ottawa, Ontario
K1A 1H3

(613) 995-8210, 1-800-282-1376
Fax (613) 947-6850
TDD (613) 992-9190

Cat. No. IP30-1/2002
ISBN 0-662-66668-2

January 2003

The Honourable Daniel Hays
The Speaker
The Senate of Canada

 

Dear Mr. Hays:

I have the honour to submit to Parliament my Annual Report which covers the period from April 1, 2001 to March 31, 2002 for the Privacy Act and from December 1 to 31, 2001 for the Personal Information Protection and Electronic Documents Act.

I had originally intended this report to be released last spring. The year 2002 was a tumultuous one for privacy, however, and I was reluctant to report to Parliament while major issues, particularly issues involving the crucial balance between privacy and security in the aftermath of September 11, remained unresolved. In keeping with my mandate as an ombudsman for the privacy rights of Canadians, I continued to seek resolutions of these issues with ministers and senior public servants. To date, despite repeatedly extending my deadlines, I have not been successful. Obviously, I cannot ask Parliament to wait indefinitely, and must submit my report despite this inconclusive and unsatisfactory state of affairs.

I will report on the experience with the second year of the Personal Information Protection and Electronic Documents Act in my next annual report.

Yours sincerely,

signature

George Radwanski
Privacy Commissioner of Canada

January 2003

The Honourable Peter Milliken
The Speaker
The House of Commons

 

Dear Mr. Milliken:

I have the honour to submit to Parliament my Annual Report which covers the period from April 1, 2001 to March 31, 2002 for the Privacy Act and from December 1 to 31, 2001 for the Personal Information Protection and Electronic Documents Act.

I had originally intended this report to be released last spring. The year 2002 was a tumultuous one for privacy, however, and I was reluctant to report to Parliament while major issues, particularly issues involving the crucial balance between privacy and security in the aftermath of September 11, remained unresolved. In keeping with my mandate as an ombudsman for the privacy rights of Canadians, I continued to seek resolutions of these issues with ministers and senior public servants. To date, despite repeatedly extending my deadlines, I have not been successful. Obviously, I cannot ask Parliament to wait indefinitely, and must submit my report despite this inconclusive and unsatisfactory state of affairs.

I will report on the experience with the second year of the Personal Information Protection and Electronic Documents Act in my next annual report.

Yours sincerely,

signature

George Radwanski
Privacy Commissioner of Canada

Table of Contents

Commissioner's Overview

Part One - Report on the Privacy Act

Introduction

Investigations

Complaints under the Privacy Act

Definitions of Findings under the Privacy Act

Summary of Select Cases under the Privacy Act

Incidents under the Privacy Act

Public Interest Disclosures

Privacy Practices and Reviews

In the Courts

Part Two - Report on the Personal Information Protection and Electronic Documents Act

Introduction

The Definition of Personal Information: Broad but not Infinite

Systemic Problems

Positive Responses to my Recommendations

Definitions of Findings under the PIPED Act

Privacy Practices and Reviews

In the Courts

Communications and Public Education

Part Three - Corporate Services

Resources

Detailed Expenditures

Corporate Structure

Top of Page Commissioner's Overview

photo - George Radwanski
George Radwanski
Privacy Commissioner
of Canada
It is my duty, in this Annual Report, to present a solemn and urgent warning to every Member of Parliament and Senator, and indeed to every Canadian:
The fundamental human right of privacy in Canada is under assault as never before. Unless the Government of Canada is quickly dissuaded from its present course by Parliamentary action and public insistence, we are on a path that may well lead to the permanent loss not only of privacy rights that we take for granted but also of important elements of freedom as we now know it.

We face this risk because of the implications, both individual and cumulative, of a series of initiatives that the Government has mounted or is actively moving toward. These initiatives are set against the backdrop of September 11, and anti-terrorism is their purported rationale. But the aspects that present the greatest threat to privacy either have nothing at all to do with anti-terrorism, or they present no credible promise of effectively enhancing security.

The Government is, quite simply, using September 11 as an excuse for new collections and uses of personal information about all of us Canadians that cannot be justified by the requirements of anti-terrorism and that, indeed, have no place in a free and democratic society.

As of the date this Report went to press, January 17, the Government has shown no willingness to modify these initiatives in response to privacy concerns. Whether the Government's awareness of the imminence of this Report will have brought about any change by the time the Report is tabled, I cannot foresee.

I wish to emphasize at the outset that I have never once raised privacy objections against a single actual anti-terrorist security measure. Indeed, I have stated repeatedly ever since September 11 that I would never seek as Privacy Commissioner to stand in the way of any measures that might be legitimately necessary to enhance security against terrorism, even if they involved some new intrusion or limitation on privacy.

I have objected only to the extension of purported anti-terrorism measures to additional purposes completely unrelated to anti-terrorism, or to intrusions on privacy whose relevance or necessity with regard to anti-terrorism has not been in any way demonstrated. And still the Government is turning a resolutely deaf ear.

Specifically, I am referring to: the Canada Customs and Revenue Agency's new "Big Brother" passenger database; the provisions of section 4.82 of Bill C-17; dramatically enhanced state powers to monitor our communications, as set out in the "Lawful Access" consultation paper; a national ID card with biometric identifiers, as advanced by Citizenship and Immigration Minister Denis Coderre; and the Government's support of precedent-setting video surveillance of public streets by the RCMP.

These initiatives are all cause for deep concern because of the intrusions on privacy that they directly entail. But they are even more disturbing because of the thresholds they cross and the doors they open. Each of these measures establishes a devastatingly dangerous new principle of acceptable privacy invasion.

The CCRA's database introduces the creation of personal information dossiers on all law-abiding citizens for a wide variety of investigative purposes. Section 4.82 of Bill C-17 requires, for the first time, de facto mandatory self-identification to the police for general law enforcement. The "Lawful Access" paper advocates the widespread monitoring of our communications activities and reading habits.

A national ID card would remove our right to anonymity in our day-to-day lives. The RCMP's video surveillance constitutes systematic observation of citizens by the police as we go about our law-abiding business on public streets.

These are not abstract or theoretical concerns. If these measures are allowed to go forward and the privacy-invasive principles they represent are accepted, there is a very real prospect that before long our lives here in Canada will look like this:

  • All our travels outside Canada will be systematically recorded, tracked and analyzed for signs of anything that the Government might find suspicious or undesirable. "Big Brother" dossiers of personal information about every law-abiding Canadian - initially travel information, but eventually supplemented by who knows what else - will be kept by the federal Government and will be available to virtually every federal department and agency, just in case they are ever handy to use against us.

  • Any time we travel within Canada, we will have to identify ourselves to police so that their computers can check whether we are wanted for anything or are otherwise of interest to the state.

  • Police and security will be able to access records of every e-mail we send and every cellular phone call we make. Information on what we read on the Internet, every Web site and page we visit, will likewise be readily available to government authorities.

  • We will all be fingerprinted or retina-scanned by the Government. This biometric information will be on compulsory national ID cards that will open the way to being stopped in the streets by police and required to identify ourselves on demand.

  • Our movements through the public streets will be relentlessly observed through proliferating police video surveillance cameras. Eventually, these cameras will likely be linked to biometric face-recognition technologies that will match our on-screen images to file photos - from such sources as drivers' licences, passports or ID cards - and enable the police to identify us by name and address as we go about our law-abiding business in the streets.

I am well aware that these scenarios are likely to sound, to most people, like alarmist exaggeration. Certainly, the society I am describing bears no relation to the Canada we know. But anyone who is inclined to dismiss the risks out of hand should pause first to consider that the privacy-invasive measures already being implemented or developed right now would have been considered unthinkable in our country just a short year ago.

I am not predicting that all this will necessarily happen. But I am warning with all the intensity at my disposal that, in each instance, once the principle has been accepted and the precedent has been established, further intrusions on privacy are only a matter of degree. That makes them virtually inevitable.

The place to stop unjustified intrusions on a fundamental human right such as privacy is right at the outset, at the very first attempt to enter where the state has no business treading. Otherwise, the terrain will have been conceded, and the battle lost.

Consequently, if the Government's current initiatives are allowed to go forward, there is a very real risk that privacy as we know it will soon become a distant, irretrievable memory.

The situation is made all the more worrisome by the fact that the Government is doing all this in blatant, open and repeated disregard of the concerns that it is my duty to express as the Officer of Parliament mandated to oversee and defend the privacy rights of all Canadians.

This disregard threatens the privacy rights of Canadians not only directly through the intrusive measures in question, but also indirectly by undermining the whole edifice of privacy protection that has been in place in this country for nearly two decades.

Regrettably, this Government has lost its moral compass with regard to the fundamental human right of privacy.

It appears to have become convinced that privacy must be sacrificed bit by bit, day by day, in pursuit of greater goods: reassuring a public frightened by the outrages of September 11; mollifying an insistent U.S. government; meeting the wishes of police, security forces and other Government institutions that have recognized the aftermath of September 11 as an opportunity to expand their powers.

As well, the Government has become inappropriately willing to brush aside all criticism of its assault on privacy rights, apparently regarding such criticism as simply a cost of doing business. This criticism has come not only from me in the exercise of my mandate from Parliament to oversee and defend the privacy rights of Canadians, but also from a great many others who have publicly endorsed my concerns. These include seven provincial and territorial Information and Privacy Commissioners from across Canada, the Canadian Civil Liberties Association, the B.C. Civil Liberties Association, the B.C. Freedom of Information and Privacy Association, the Ligue des droits et libertés, Electronic Frontier Canada, the Commonwealth Centre for e-Governance, the Public Interest Advocacy Centre, and the Manitoba Association of Rights and Liberties.

In the nearly 20-year history of privacy protection since the position of Privacy Commissioner was created under the Privacy Act in 1983, a convention has been established that when the Privacy Commissioner points out that a practice or an initiative is inconsistent with privacy rights, the Government pays heed.

That's the way the system is supposed to work. I am an ombudsman, mandated by Parliament, whose role with regard to the federal Government is normally carried out primarily through persuasion and co-operative discussion behind the scenes. Like my predecessors, that is the way I have sought to operate since my appointment. I have recommended to ministers and senior Government officials specific solutions to enable them to achieve their legitimate policy objectives in ways that are more respectful of privacy rights. This has produced many successful outcomes which, by the very nature of the process, do not come publicly to light.

But in its approach to the aftermath of September 11, the Government has increasingly been turning its back on the cooperative nature of the federal privacy protection system by flatly refusing to pay attention. In each of the instances where I have been obliged to publicly criticize the Government for failing to respect the privacy rights of Canadians, it was only after I had first made every effort to persuade the minister responsible with carefully reasoned arguments and had my expressions of concern ignored or brushed aside.

Now I am informing Parliament that there is every appearance that governmental disregard for crucially important privacy rights is moving beyond isolated instances and becoming systematic. This puts a fundamental right of every Canadian profoundly at risk. It is a trend that urgently needs to be reversed.

If the Government can, with impunity and without provoking the strongest response from Parliament, simply brush aside the Privacy Commissioner's warnings and do as it pleases, then privacy protection in this country will be progressively weakened, and worse and worse intrusions will be inevitable.

In the months immediately following September 11, I was in fact quite optimistic that, with regard to privacy, the Government was on the whole being balanced and thoughtful in its response. But now the floodgates appear to have burst.

Now "September 11" is invoked as a kind of magic incantation to stifle debate, disparage critical analysis and persuade us that we live in a suddenly new world where the old rules cannot apply.

If Parliament and the public at large have been slow to react, it is probably because for most people, most of the time, privacy is a pretty abstract concept. Like our health, it's something we tend not to think about until we lose it - and then discover that our lives have been very unpleasantly, and perhaps irretrievably, altered.

But though we tend to take it for granted, privacy - the right to control access to ourselves and to personal information about us - is at the very core of our lives. It is a fundamental human right precisely because it is an innate human need, an essential condition of our freedom, our dignity and our sense of well-being.

If someone intrudes on our privacy - by peering into our home, going through the personal things in our office desk, reading over our shoulder on a bus or airplane, or eavesdropping on our conversation - we feel uncomfortable, even violated.

Imagine, then, how we will feel if it becomes routine for bureaucrats, police officers and other agents of the state to paw through all the details of our lives: where and when we travel, and with whom; who are the friends and acquaintances with whom we have telephone conversations or e-mail correspondence; what we are interested in reading or researching; where we like to go and what we like to do.

A popular response is: "If you have nothing to hide, you have nothing to fear."

By that reasoning, of course, we shouldn't mind if the police were free to come into our homes at any time just to look around, if all our telephone conversations were monitored, if all our mail were read, if all the protections developed over centuries were swept away. It's only a difference of degree from the intrusions already being implemented or considered.

The truth is that we all do have something to hide, not because it's criminal or even shameful, but simply because it's private. We carefully calibrate what we reveal about ourselves to others. Most of us are only willing to have a few things known about us by a stranger, more by an acquaintance, and the most by a very close friend or a romantic partner. The right not to be known against our will - indeed, the right to be anonymous except when we choose to identify ourselves - is at the very core of human dignity, autonomy and freedom.

If we allow the state to sweep away the normal walls of privacy that protect the details of our lives, we will consign ourselves psychologically to living in a fishbowl. Even if we suffered no other specific harm as a result, that alone would profoundly change how we feel. Anyone who has lived in a totalitarian society can attest that what often felt most oppressive was precisely the lack of privacy.

But there also will be tangible, specific harm.

The more information government compiles about us, the more of it will be wrong. That's simply a fact of life.

Several years ago, after the existence of Human Resources Development Canada's "Longitudinal Labour Force File" was brought to light by my predecessor, many people demanded to see the information that had been held about them. They were astonished by the number of factual errors. That was only a research database, so its inaccuracies probably would have remained relatively benign even if it had not been dismantled.

But if our privacy becomes ever more systematically invaded by the state for purposes of assessing our behavior and making judgments about us, wrong information and misinterpretations will have potential consequences.

If information that is actually about someone else is wrongly applied to us, if wrong facts make it appear that we've done things we haven't, if perfectly innocent behavior is misinterpreted as suspicious because authorities don't know our reasons or our circumstances, we will be at risk of finding ourselves in trouble in a society where everyone is regarded as a suspect. By the time we clear our names and establish our innocence, we may have suffered irreparable financial or social harm.

Worse yet, we may never know what negative assumptions or judgments have been made about us in state files. Under exemptions to the general right of access under the Privacy Act, Canadians do not have the right to see the personal information that the Government holds about them if it pertains to national security or an ongoing investigation.

Decisions detrimental to us may be made on the basis of wrong facts, incomplete or out-of-context information or incorrect assumptions, without our ever having the chance to find out about it, let alone to set the record straight.

That possibility alone will, over time, make us increasingly think twice about what we do, where we go, with whom we associate, because we will learn to be concerned about how it might look to the ubiquitous watchers of the state.

  • You stopped briefly in Thailand during a business trip, and liked it so much that you're thinking of going back on a vacation. But might repeat travel to Thailand get you flagged by the Government's analysts as a possible pedophile going there for the child sex trade? Could you find yourself detained for questioning every time you travel? Might you be denied security clearances, or refused entry into the United States?

  • You're passing time browsing on the Internet and you're idly curious about what kind of propaganda in favour of al-Qaeda various extremists might be putting out. But could visiting such Web sites get you identified as a potential terrorist yourself and bring CSIS or RCMP officers knocking on your door?

  • You're stopped on the street by a stranger asking for directions. But if by then proliferating street video surveillance cameras are linked to biometric face-recognition technology, what if the system immediately identifies the stranger as a known or suspected terrorist? If the police officer then calls up your name and address by matching your onscreen image to your driver's license or passport photo, will you go into security files yourself as a suspicious individual who had a street meeting with a terrorism suspect? Would you do better to keep walking whenever any stranger tries to talk to you?

The bottom line is this: If we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about it, analyze it, judge it, possibly misconstrue it, and somehow use it to our detriment, we are not truly free.

That sort of life is characteristic of totalitarian countries, not a free and open society like Canada. But that is where we are inexorably headed, if the Government's current initiatives are allowed to proceed.

Let me very briefly address the specifics of these objectionable initiatives, before suggesting some broader considerations that I believe should guide us in the post-September 11 environment.

The CCRA "Big Brother"database

In late 2001, under amendments to the Customs Act, Customs officers of the CCRA were given access to Advance Passenger Information (API) and the far more detailed Passenger Name Record (PNR) about every passenger flying into Canada from a foreign destination. The stated purpose of this was to facilitate identifying individuals who merit more careful questioning or examination on arrival.

When this legislation was before Parliament, I sought and received a formal written undertaking from the CCRA that, except in those relatively few instances where this API/PNR information did in fact cause an individual to be identified for secondary screening, it would all be destroyed within 24 hours. On the basis of this unequivocal undertaking that there would be no widespread retention, I did not express any privacy objection to providing Customs with this passenger information and did not find it necessary to appear before the House and Senate committees that studied the proposed amendments.

Last summer, the CCRA informed me that, contrary to its past undertaking, it has decided to keep all API/PNR information about Canadian travellers for six years in a massive new database.

All this personal information - more than 30 data elements including every destination to which we travel, who we travel with, how we pay for the tickets (sometimes including credit card numbers), what contact numbers we provide, even any dietary preferences or health-related requirements we communicate to the airline - will be available for an almost limitless range of governmental purposes under the broad information-sharing provisions of the Customs Act.

Those purposes, by the Government's own account, include everything from routine income tax investigations to trying to flag Canadians as potential pedophiles or money launderers solely on the basis of their travel patterns.

This is unprecedented. The Government of Canada has absolutely no business creating a massive database of personal information about all law-abiding Canadians that is collected without our consent from third parties, not to provide us with any service but simply to have it available to use against us if it ever becomes expedient to do so. Compiling dossiers on the private activities of all law-abiding citizens is the sort of thing the Stasi secret police used to do in the former East Germany. It has no place in a free and democratic society.

The CCRA's purported reason for creating this database is "forensic": In the event that there is a terrorist attack and some of the perpetrators are known, it wants to be able to use this database in search of any accomplices or associates. The CCRA has absolutely no mandate under the Customs Act to gather information for this sort of after-the-fact anti-terrorist forensic investigation.

But I have repeatedly asked Revenue Minister Elinor Caplan at least to limit the uses of this database to this exceptional anti-terrorist purpose, by strictly exempting it from the normal information-sharing provisions of the Customs Act. She flatly refuses.

The creation of this CCRA database lacks Parliamentary authority. It contravenes the Privacy Act. And there is overwhelming reason to believe that it is contrary to the Canadian Charter of Rights and Freedoms.

I have provided to Minister Caplan and to the Government, and made public, three separate independent legal opinions from the most eminent of authorities: retired Supreme Court Justice Gérard V. La Forest, who wrote many of the Court's most important decisions on privacy rights; former federal Deputy Minister of Justice Roger Tassé, who played a key role in drafting the Canadian Charter of Rights and Freedoms; and Hon. Marc Lalonde, who was a highly respected Minister of Justice in the Trudeau cabinet. All three state that this database clearly appears to be in violation of the Charter. This unprecedented trilogy of opinions has met with apparent indifference.

It is difficult to imagine a more flagrant disregard for the rights of Canadians. This database is legally wrong and morally wrong. If the Government can get away with systematically logging and analyzing all the foreign travel activities of every law-abiding citizen, then no other private activity will long be safe from being included in the same personal dossiers - our shopping, our banking, our communications, our movements within the country. The "Big Brother" society will be irrevocably upon us.

Bill C-17, the Public Safety Act, 2002

In the Public Safety Act, 2002, Bill C-17, the Government has reintroduced, with only minimal changes, a provision from the previous Bill C-55 that would give the RCMP and CSIS unrestricted access to the personal information held by airlines about all Canadian air travellers on domestic as well as international flights.

I have raised no objection to the primary purpose of this provision, section 4.82, which is to enable the RCMP and CSIS to use this passenger information for anti-terrorist "transportation security" and "national security" screening. But my concern is that the RCMP would also be expressly empowered to use this information to seek out persons wanted on warrants for Criminal Code offences that have nothing to do with terrorism, transportation security or national security.

The implications of this are extraordinarily far-reaching. In Canada, it is well established that we are not required to identify ourselves to police unless we are being arrested or we are carrying out a licensed activity such as driving. This right to anonymity with regard to the state is a crucial privacy right. But since we are required to identify ourselves to airlines as a condition of air travel and since section 4.82 would give the RCMP unrestricted access to the passenger information obtained by airlines, this would set the extraordinarily privacy-invasive precedent of effectively requiring compulsory self-identification to the police.

I am prepared, though I seriously doubt its effectiveness, to accept this as an exceptional measure that can be justified in the wake of September 11 for the limited and specific purposes of aviation security and national security against terrorism. But I can find no reason why the use of this de facto self-identification to the police should be extended to searching for individuals who are of interest to the state because they are the subject of warrants for Criminal Code offences unrelated to terrorism. That has the same effect as requiring us to notify the police every time we travel, so that they can check whether we are wanted for something.

If the police were able to carry out their regular Criminal Code law enforcement duties without this new power before September 11, they should likewise be able to do so now.

If we accept, instead, the principle that air travellers within Canada can now in effect be forced by law to identify themselves to police for scrutiny against lists of wanted suspects, then there is nothing to prevent the same logic from being applied in future to other modes of transportation. Particularly since this provision might well discourage wanted individuals from travelling by air, why not extend the same scrutiny to train travellers, bus passengers or anyone renting a car?

Indeed, the precedent set by this provision could ultimately open the door to practices similar to those that exist in societies where police routinely board trains, establish roadblocks or stop people on the street to check identification papers in search of anyone of interest to the state.

This is why I have recommended amending the bill to remove all reference to warrants and thus limit the police to using this passenger information only to watch for individuals who are of concern specifically on grounds of anti-terrorism and national security.

When the Government reintroduced this legislation as Bill C-17, it made a number of changes. But my recommendations regarding section 4.82 were ignored. Instead, the Government made two changes that are at best cosmetic, and that appear aimed more at misleading Canadians than at addressing the real issues that are at stake.

The Government now proposes to have regulations limiting slightly the Criminal Code offence warrants for which the RCMP will be searching. But this does nothing to address the fundamental point of principle that the police have no business using this extraordinary access to personal information to search for people wanted on warrants for any offences unrelated to terrorism.

As well, in the new bill the Government has removed the "identification of persons for whom a warrant has been issued" as a "purpose" for accessing passenger information under the legislation. But this is meaningless, since the RCMP would remain empowered to match this information against a database of persons wanted on warrants and to use such matches to bring about arrests.

Senior Government officials have repeatedly told me that the reference to warrants is necessary, because otherwise the RCMP would be powerless to act if they "incidentally" came upon the name of a dangerous wanted criminal while scanning a passenger list for possible terrorists. This argument is totally unpersuasive for two reasons.

First, if RCMP officers are to examine passenger information for the sole stated purpose of looking for terrorists and security risks, they shouldn't be checking passenger names against the huge general CPIC database, which contains a very wide variety of information including the names of people wanted on all sorts of warrants completely unrelated to terrorism. They should be looking for matches against the much more specific database that is limited to information only on known or suspected terrorists and other individuals identified as security risks.

To say that trolling in CPIC might cause the RCMP to "incidentally" find individuals wanted on warrants for Criminal Code offences, is like saying that there is something "incidental" about tossing a fishing line into a pond stocked with trout and pulling out a trout.

Second, my legal advisors have confirmed that peace officers including the RCMP have a well-established Common Law power - indeed a duty - to take appropriate action to apprehend any potentially dangerous individual they discover to be wanted on a warrant. The reference to warrants in section 4.82 of Bill C-17 is therefore quite redundant and unnecessary - unless, of course, the RCMP are to make a systematic practice of searching passenger information for individuals wanted on outstanding warrants, contrary to the stated purpose of giving them access to this information.

The "Lawful Access" Initiative

Under the "Lawful Access" proposals that have been put forward jointly by the Minister of Justice, the Solicitor General and the Minister of Industry, the Internet activities and cellular phone communications of all law-abiding Canadians would be subject to unprecedented scrutiny by the state.

I have responded formally, publicly and in detail to these proposals, and will not do so again here. But I have received absolutely no indication that the grave privacy concerns I have expressed will be heeded, and I have considerable reason to fear that the Government intends to simply press ahead.

The interception and monitoring of private communications is a highly intrusive activity that strikes at the heart of the right to privacy. If Canadians can no longer feel secure that their Web surfing and their electronic communications are indeed private, this will mark a grave, needless and unjustifiable deterioration of privacy rights in our country.

The Government has presented no evidence to demonstrate why the massive new intrusions it proposes are necessary.

I recognize that new information technologies may pose a challenge to conventional interception and surveillance techniques used by police forces and national security agencies. It appears reasonable that law enforcement and national security agencies should have the same ability to intercept and monitor e-mail and cellular telephone communications, with the same kind of judicial authorization based on the same criteria, as is now the case with regard to letter mail and conventional telephone communications.

But agents of the state in Canada cannot order Canada Post to photocopy the address on every envelope we send, nor can they order bookstores to keep a record of every book we buy, let alone of every page of every magazine we leaf through. There is no reason why they should be able to exercise such powers with regard to every e-mail someone sends or every Web site he or she visits.

I do not see any reason why e-mails should be subject to a lower standard of privacy protection than letters or telephone calls. And I do not see why Internet browsing should be subject to a lower standard of protection than book purchasing or researching in a reference library. Canadians should not be subject to greater state monitoring or scrutiny just because they choose to use new communication technologies.

In a free and democratic society like Canada, the interception and monitoring of private communications carries extraordinarily strong symbolic and psychological implications, in addition to the obvious practical ones. Dramatically increasing that interception and monitoring, without any clearly demonstrated need or justification, is unacceptable.

Identity Cards

It is a matter of very considerable dismay that Citizenship and Immigration Minister Denis Coderre, presumably on behalf of the Government, is pressing for a "debate" on establishing a mandatory national identity card, complete with biometric identifiers, for all Canadians.

Given the Government's current behavior on other privacy matters, it is difficult to avoid fearing that this means that it wishes to introduce such a card.

That would be another huge blow to privacy rights. In Canada, we are not required to carry any identification - let alone to identify ourselves on demand - unless we are carrying out a licensed activity such as driving. Introducing a national identity card, even if it were "voluntary" at first, would push us toward becoming the kind of society where the police can stop anyone on the street and demand, "Your papers, please."

The notion of the Government of Canada fingerprinting or eyeball-scanning every citizen for such a card is, of course, all the more abhorrent.

I can find no justification for a national identity card, especially since it is absolutely useless as an anti-terrorist measure. As the perpetrators of the September 11 attacks demonstrated, terrorists are not necessarily previously identifiable as such. Every citizen would be able to obtain and display an identity card, regardless of his or her possible terrorist proclivities, but of course it wouldn't list occupation as "terrorist." And short-term visitors to Canada wouldn't have such a card at all.

Rather than a "debate" about a grave and needless intrusion, Canada needs clear acknowledgement by the Government that the fundamental privacy right of anonymity as we go about our day-to-day lives is too important to abrogate for no apparent reason.

Video Surveillance

I have been trying for more than a year to persuade the Government to direct the RCMP to stop its continuous video surveillance of law-abiding citizens on a public street in Kelowna, British Columbia.

I believe that general video surveillance of our public streets and public gathering places by the police or other public authorities is an enormous threat to the fundamental human right of privacy in our society.

We have the right as Canadians to walk along our public streets without being systematically observed by police. If we lose that, we lose a crucial part of our privacy and our freedom.

Last March, I sought the advice of retired Supreme Court Justice Gérard La Forest, who wrote many of the Supreme Court's most important decisions on privacy rights. Mr. La Forest advised me that, in his learned opinion, what the RCMP is doing in Kelowna is not only a serious violation of privacy rights, but is also a clear contravention of the Canadian Charter of Rights and Freedoms.

I made that legal opinion public last April, and it too was ignored by the RCMP and the Government. Since as Privacy Commissioner I am mandated by Parliament to oversee and defend the privacy rights of Canadians, and since I have the strongest possible reason to believe that what the RCMP is doing in Kelowna not only violates privacy rights in general but is unconstitutional, my only remaining recourse is to ask the courts to put a stop to it.

Accordingly, in July I initiated in the Supreme Court of British Columbia in Kelowna, an action to declare the RCMP's video surveillance activities in Kelowna unconstitutional as a violation of the Canadian Charter of Rights and Freedoms and international covenants.

Remarkably, the Government has taken the position that it challenges my right to take this action. It takes the position that as Privacy Commissioner I am a "statutory body" limited to doing only what is expressly spelled out in the Privacy Act.

My legal advisors inform me that they are confident that this position is not correct in law. But I have strong reason to believe that if my right to initiate this Charter challenge is upheld by the court, the Government intends to file a series of appeals with a view to preventing this important case from being heard on its merits for years to come.

That would be reprehensible. At a time when video surveillance of public streets is becoming a fad that appeals to many municipalities across Canada, Canadians are entitled to have this important question about their privacy rights under the Charter adjudicated without delay. As well, police forces and municipalities across the country should themselves not be subjected to prolonged and needless uncertainty about the constitutional legality of what they are contemplating. They want and need a court decision.

I have therefore repeatedly asked the Minister of Justice and Attorney General, Mr. Cauchon, to withdraw this procedural objection and allow the case to be promptly determined on its merits. I have recently been informed that he refuses to do this.

Instead the Government, through the Minister of Justice, is taking the extraordinary position that the Privacy Commissioner of Canada should not have the right to ask the courts to determine whether a grave intrusion on privacy violates the privacy protections in the Canadian Charter of Rights and Freedoms.

I urge the Government to reconsider.

With regard to all these initiatives except street video surveillance, Government officials have repeatedly told me privately that pressure from the United States government is a strong motivating factor.

Let me be blunt: "The United States made us do it" cannot be a sufficient or acceptable justification for the Government to intrude on a fundamental right of Canadians.

Canada is a sovereign country.

Throughout our history, there have been important instances where Canada has found it necessary to take a position different from that of the United States on matters involving rights or values. It is surely no exaggeration to say that if our leaders had instead consistently succumbed to U.S. pressures to adopt that country's approaches as our own, there would today be no distinct Canada as we know it.

The same is true with regard to appropriate respect for fundamental rights in the wake of September 11. If the U.S. government is indeed exerting pressure on Canada to take steps that cannot be justified on their merits in accordance with our Canadian values and rights, then Canadians are entitled to expect that the Government will remain steadfast in meeting its responsibilities rather than trample on their rights out of fear of U.S. retaliation.

Canadians are entitled, as well, to expect that the Government will think very carefully and critically before accepting the U.S. premise that we are all "at war" against terrorism and that it is therefore reasonable to impose wartime restrictions on privacy and other rights.

The difficulty is that terrorism is not an enemy, but a phenomenon. Wars that are fought between nation-states, or even civil wars that are fought within a country, are finite. They may drag on for a long time, but eventually someone wins and someone loses or a stalemate is identified, and the terms of peace are established.

But if we apply the premises of war to the challenges of dealing with terrorism, we will by definition be committing ourselves to a "war" with no possible end - because there is no single, definable enemy. Any group of individuals, or even any single individual, that is willing to commit public mayhem in support of any particular cause is thereby a terrorist. And so for every particular group or faction of terrorists that is neutralized, another one may readily spring up.

This means that there can never be a moment when it will be possible to declare a definitive victory in a "war" against terrorism. In fact, such a "war" will be eerily reminiscent of Orwell's 1984, which takes place against the background of a mysterious chronic war in which it is never clear just who the enemy is or who is winning or losing.

We need to recognize, therefore, that any intrusions or limitations on the fundamental human right of privacy that are imposed as a purported wartime measure against terrorism will likely never be rescinded. What we are confronting is the prospect of a permanent redefinition of Canadian society.

And what will this redefinition achieve in terms of protecting us?

The reality is that there are no security measures that can provide complete protection against murderous individuals or groups who are willing to lose their own lives to make their point. Even the most repressive, authoritarian regimes have not been able to immunize themselves fully against terrorism. At the same time, we also need to keep the risks in perspective: In any scenario, the average Canadian is far more likely to come to harm in a traffic accident than at the hands of terrorists.

This is not to suggest that we should take a cavalier approach to terrorism, but rather that we must take a balanced one.

When people are worried about their safety, when we have seen the horrors of which today's breed of terrorists are capable - and there may be more - it's easy to lose perspective. It's easy to fall into the trap of thinking that security is all that matters and that human rights such as privacy are a luxury.

But such extremes can only reward and encourage terrorism, not diminish it. They can only devastate our lives, without commensurately safeguarding them.

Of course we all want to be safe. But we could be safer from terrorism - perhaps - if we permanently evacuated all the high-rise office towers, if we closed down the subways, if we forever grounded all airplanes.

Yet no reasonable person would be likely to argue for adopting such measures. We'd say, "We want to be safe, yes - but not at the price of sacrificing our whole way of life."

The same reasoning should apply, in my view, to arguments that privacy should indiscriminately be sacrificed on the altar of enhanced security.

The essence of terrorism is the impact it is intended to have on those who witness it - the capacity to frighten, to demoralize, to sap the will of a society to resist whatever it is that the terrorists want.

In the case of the September 11 breed of terrorists, by all accounts it is the whole nature of American society, and by extension of all our Western societies, that they seek to attack and undermine. Our freedoms and values, very much including privacy, are precisely the target.

To keep that from becoming a reality for Canada, we must guard against falling prey to the illusion that wholesale erosion of privacy is a reasonable, necessary or effective way to enhance security.

We must guard against the demonstrated tendency of the Government to create new databases of privacy-invasive information on justified, exceptional grounds of enhancing security, and then seek to use that information for a whole range of other law enforcement or governmental purposes that have nothing to do with anti-terrorism - simply because it's there.

And we must guard against the eagerness of law enforcement bodies and other agencies of the state to use the response to September 11 as a Trojan horse for acquiring new invasive powers or abolishing established safeguards simply because it suits them to do so.

Perhaps it will be necessary to accept some new intrusive measures to enhance security. But these choices must be made calmly, carefully and case by case. The burden of proof must always be on those who suggest that some new intrusion or limitation on privacy is needed in the name of security.

I have suggested that any such proposed measure must meet a four-part test:

It must be demonstrably necessary in order to meet some specific need.

It must be demonstrably likely to be effective in achieving its intended purpose. In other words, it must be likely to actually make us significantly safer, not just make us feel safer.

The intrusion on privacy must be proportional to the security benefit to be derived.

And it must be demonstrable that no other, less privacy-intrusive, measure would suffice to achieve the same purpose.

Necessity, effectiveness, proportionality, and lack of a less privacy-invasive alternative - this is the four-part test that I believe can allow us to take all appropriate measures to enhance security, without unduly sacrificing privacy. It is a test on which I believe all of us - every Canadian, and particularly every Member of Parliament and Senator, of every party and every political philosophy - must resolutely insist.

One of the clearest lessons of history is that the greatest threats to liberty come not when times are tranquil and all is well, but in times of turmoil, when fidelity to values and principle seems an extravagance we can ill afford. History also teaches us that whenever we have given in to that kind of thinking, we have lived to regret it.

At the time, the loss of freedom might seem small, trivial even, when placed in the balance of the security we seek. And yet these incremental threats are the ones we must be most vigilant in resisting. The 18th Century political philosopher Edmund Burke understood this danger when he wrote, "The true danger is when liberty is nibbled away, for expedience, and by parts."

U.S. Supreme Court Justice Thurgood Marshall eloquently made the same point much more recently when he said: "History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."

We are now living in such a time. Canada has, over the course of its history, developed a very healthy balance between the powers of the state and the rights of the individual. Our crime rates have been comparatively low and our social order has been strong, while individual freedom and diversity have flourished to a degree that is the envy of much of the world. That is why immigrants from so many other societies have chosen to make Canada their home.

But now we face having that successful balance changed, by having Canada transformed into a society where the state is much more intrusive and where individual rights and freedoms are correspondingly reduced. And we face having this transformation occur without the analysis, debate or even understanding that it deserves.

Sadly, most of the ministers who are making these decisions are not thinking sufficiently about the deeper implications of what they are doing. While I am continuing to maintain dialogue with the relevant officials in pursuit of appropriate changes, at the time this Report goes to press no discernible progress has been made.

Even with the help and support of my provincial and territorial colleagues, other privacy advocates and many thoughtful members of the news media - to all of whom I am profoundly grateful - as an ombudsman I do not have the power to stop what the Government is doing in its unprecedented assault on privacy.

That power lies in Parliamentary insistence and public outcry. It is my hope that these will be exercised with the greatest urgency. It is also my hope that, even at this late moment, the Government will have the courage and the good sense to recognize that there is no shame in rethinking and revising insufficiently-considered policies. There can be shame only in insisting, instead, on treading needlessly on a fundamental right of Canadians.

For my part, my role and my duty are to bear true witness to what is taking place, and to fight against it with every appropriate means available to me. This I will continue to do ceaselessly, and with all the vigour at my disposal.

 

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