The Information and Privacy Commissioner for British Columbia, David Loukidelis, sent the following letter to the Honourable Elinor Caplan, Minister of National Revenue, on the issue of CCRA's Advance Passenger Information/Passenger Name Record program.

November 19, 2002

Hon. Elinor Caplan
Minister of National Revenue
555 Mackenzie Avenue
Ottawa, ON K1A 0L5

Dear Minister Caplan:

Canada Customs & Revenue Agency ("CCRA") - Advance Passenger Information ("API')/Passenger Name Record ("PNR") program - OIPC File No. 16234

I respond to the November 13, 2002 letter (received today) from Denis Lefebvre, Assistant Commissioner of the CCRA. That letter responds to my October 3, 2002 letter to you.

I regret to see that, once again, the CCRA is willing to use the terrible events of September 11, 2001 as a cover for activities that go well beyond protecting Canadians from terrorism. The Assistant Commissioner's letter confirms that the CCRA will use API and PNR information for "intelligence analysis for identifying potential future threats relating to security, public health and criminal activity." The letter mentions pedophiles, money laundering and "public health".

This affirms, of course, that the database and the CCRA's related activities are an open-ended program of surveillance of ordinary Canadians without reasonable grounds for doing so. As I have said in earlier correspondence on this and related matters, I readily support those tailored activities and measures as are demonstrably justified and necessary to combat terrorism. For this reason, I did not object to proposed enactment earlier this year of provisions that would allow RCMP and CSIS officers to have time-limited access to passenger information for anti-terrorist purposes.

I continue to strongly condemn, however, the CCRA's broader program of surveillance entailing retention of personal information, especially since it has ill-defined objectives and shifting justifications. It is one thing to use API/PNR information for secondary-screening purposes at border entry points, with that information being destroyed immediately after viewing, but quite another for CCRA to retain it for years and to use it to data-mine for surveillance purposes where there are no reasonable grounds for doing so in a given case.

The Assistant Commissioner's letter says the Supreme Court of Canada last year ruled, in Smith v. Canada, that "this practice is both acceptable and appropriate" and goes on to say, apparently citing Smith as authority, that

"... [i]nformation may be disclosed to other agencies for purposes such as fighting
terrorism and preventing terrorist attacks, helping law-enforcement agencies track
pedophiles, preventing money laundering, and protecting the health and safety of Canadians."

The Supreme Court of Canada said none of these things. In Smith v. Canada (Attorney General), [2001] S.C.J. No. 85, the Supreme Court of Canada dealt with a program of matching of E311 data disclosing individuals' dates of departure from and arrival in Canada with data of employment insurance claimants. In very brief reasons, the Court dismissed an appeal from the decision that the E311 data-matching program did not violate s. 8 of the Canadian Charter of Rights and Freedoms. In a companion case, Privacy Act (Can.) (Re), [2001] S.C.J. No. 86, the Supreme Court of Canada dismissed an appeal from a decision that the same data-matching program was authorized under s. 108(1)(b) of the Customs Act and did not violate s. 8(2)(b) of the Privacy Act.

There is no basis whatsoever in these decisions, including at the lower court and tribunal levels, for the claims the CCRA has made of them in the Assistant Commissioner's letter and publicly:

1. From a technical yet relevant perspective, those cases dealt with s. 108(l)(b) of the Customs Act, not the 2001 amendments to the Customs Act on which CCRA now relies for its surveillance activities. The situation under the 2001 amendments is therefore an open question. I infer that the CCRA has had legal advice that these earlier decisions support the CCRA's present activities.
2. On that important point, a program of, as the Assistant Commissioner concedes, "intelligence analysis" that looks for patterns of various kinds is very different from a simple 'yes/no' list-matching of the kind in issue in the earlier cases. The CCRA's analyses of data for patterns will almost certainly entail creation of derived data i.e., entirely new, secondary data. Such data may be false, highly pejorative and prejudicial. The dangers of false analysis are of special concern when the surveillance activities are ill-defined and open-ended, as in the case of the CCRA's program.
3. The earlier cases apply the analysis in R. v. Plant, [1993] 3 S.C.R. 281, which involves balancing the seriousness of an offence against any reasonable expectation of privacy. This analysis may well not apply in, at me very least, the case of the CCRA's surveillance of Canadians for ill-defined "public health" reasons. Further, the Plant analysis is not the only or most appropriate analysis one could apply to the CCRA's surveillance and there is no guarantee it will be applied in relation to the recent Customs Act amendment or the CCRA's activities.

Both you and your officials are quoted by the media as justifying this unprecedented surveillance of ordinary Canadians as being necessary to catch pedophiles, drug dealers and other criminals. The Assistant Commissioner's letter adds that CCRA's surveillance will protect the "health and safety of Canadians" and "public health". I would hope there is no suggestion that the end always justifies the means. Were that the case, the state ought to dispense now with constitutional and legal protections respecting search and seizure, wiretapping, arrest without warrant, detention without bail, the right to silence, presumption of innocence and other obstacles to protecting Canadians.

The tragic events of September 11, 2001 warrant such measures and laws as are demonstrably necessary and carefully tailored to combat terrorism. Those events do not, however, justify CCRA's surveillance of ordinary Canadians for the purposes now advanced. I have no hesitation in continuing to condemn the CCRA's actions as an unwarranted and unacceptable infringement of the hard-won civil rights and liberties of Canadians.

As regards CCRA's refreshed offer of a briefing in this matter, I will have my office contact Andrea Spry to see if something can be arranged.

Yours sincerely,

(Original signed by)

David Loukidelis
Information and Privacy Commissioner
for British Columbia