Opinion by Mr. Roger Tassé, O.C., Q.C.

November 21, 2002

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

Dear Mr. Radwanski:

You have requested our opinion with respect to the collection, use and disclosure of personal information obtained by Canada Customs and Revenue Agency (CCRA) during the course of CCRA's Advanced Passenger Information (API)/Personal Name Record (PNR) Initiative. This opinion constitutes our analysis as to whether that Initiative may contravene the Canadian Charter of Rights and Freedoms.

THE ISSUE

The issue to be addressed, in particular, is whether the API/PNR Initiative of CCRA under the aegis of the Customs Act, as amended, is objectionable on constitutional grounds, because it contravenes the requirements of the Canadian Charter of Rights and Freedoms. The aspects of the API/PNR Initiative that call for particular attention include the breadth of the information collected, the period for which it is retained, and the disclosure of the information to a variety of different federal and provincial officials.

More specifically, we would state the issues in the form of two questions:

Does the collection, use and disclosure of information pursuant to Canada Customs and Revenue Agency's (CCRA) Advance Passenger Information (API)/Passenger Name Record (PNR) Initiative infringe or deny the rights and freedoms of Canadians guaranteed by section 7 of the Canadian Charter of Rights and Freedoms?

If yes, can the API/PNR Initiative be demonstrably justified in a free and democratic society, as a reasonable limit to the rights and freedoms guaranteed by section 7, pursuant to section 1 of the Canadian Charter of Rights and Freedoms?

OUR CONCLUSION

The Canadian Charter of Rights and Freedoms is intended to foster values recognized as important in Canadian society. These values include the dignity and autonomy of the individual in a free society - values that are balanced against the interests of the state in the administration of government and law enforcement. The actions of the state must be balanced and proportionate in order to limit the infringement of basic rights considered important to Canadians in the least intrusive manner possible. In light of this Charter requirement, and despite a judicial inclination to be deferential to the policy choices made by Parliament, state authority to require the submission of personal information is not absolute. The Charter, through its establishment of legal rights, permits Canadians, to a degree, to control their personal information, including the submission and use of that information to the state. The regime implemented in the form of CCRA's API/PNR Initiative raises serious questions as to whether it is proportional to the legitimate requirements of the state.

Insofar as privacy is incorporated into the concept of liberty as found in section 7 of the Charter of Rights and Freedoms and the API/PNR initiative is overbroad, especially when compared to Bill C-17, the Public Safety Act, 2002, we are of the opinion, based on our analysis of Supreme Court decisions relating to section 7 of the Charter of Rights and Freedoms, that there is a good case to conclude that the collection, use and disclosure of information pursuant to CCRA's API/PNR Initiative does infringe the rights and freedoms of Canadians guaranteed by section 7 of the Canadian Charter of Rights and Freedoms and that by reason of its overbreadth, the API/PNR Initiative cannot be demonstrably justified in a free and democratic society, pursuant to section 1 of the Canadian Charter of Rights and Freedoms.

BACKGROUND

API/PNR Initiative

The Canada Customs and Revenue Agency (CCRA) has implemented an Advance Passenger Information (API)/Passenger Name Record (PNR) Initiative. This initiative was announced by CCRA in April 2000 as part of the Customs Action Plan. Effective October 7, 2002, the regime contemplated by this Initiative requires

(a) commercial carriers and charterers and their representatives, who undertake to carry persons or goods to Canada, and

(b) travel agents and owners and operators of a reservation system,

to provide the Minister of National Revenue with, or access to, specific information on all passengers and crewmembers en route to Canada.

The stated purpose associated with this Initiative is that of risk assessment:

"Obtaining passenger information in advance of the arrival of a commercial conveyance will provide customs officers with time to assess the risk of individual passengers in order to process large volumes of travellers more efficiently. This initiative will enable the CCRA to identify specific passengers to be referred for secondary Customs and/or Immigration examination. By obtaining or having access to the API/PNR data contained in the carrier's or agent's reservation system before the arrival of passengers, we will be able to focus our attention and efforts on the identification of passengers who pose a high risk."

Section 3 of the Passenger Information (Customs) Regulation prescribes the following information:

3. The following is, for the purposes of section 107.1 of the Act, the prescribed information in respect of a person on board a commercial conveyance:

(a) their surname, first name and any middle names;

(b) their date of birth;

(c) their gender;

(d) their citizenship or nationality;

(e) the type of travel document that identifies them, the name of the country in which the travel document was issued and the number on the travel document;

(f) their reservation record locator number, if any, and, in the case of a person in charge of the commercial conveyance or any other crew member without a reservation record locator number, notification of their status as a crew member;
and

(g) the information relating to the person in a reservation system.

Pursuant to section 4 of the Regulation, the information described in paragraphs 3(a) to (f) are to be provided in the form of a manifest at the time of departure. With respect to the information described in 3(g), either the information is to be provided or access to the reservation system holding such information is to be permitted.

While this regime currently applies to air travel, the regulation contemplates that it will be extended to other modes of entry into Canada:

8. For all other modes of transportation (except air mode), the date on which the Minister will require the API data and the related information contained in the carrier's or agent's reservation system be provided, in accordance with the proposed regulations, will be announced in a subsequent customs notice.

Authority for this regulation is derived from amendments made to the Customs Act, R.S. 1985, c. 1 (2nd Supp.), as amended, in 2001, specifically s. 107.1 of that Act:

107.1 (1) The Minister may, under prescribed circumstances and conditions, require any prescribed person or prescribed class of persons to provide, or provide access to, prescribed information about any person on board a conveyance in advance of the arrival of the conveyance in Canada or within a reasonable time after that arrival.

(2) Any person who is required under subsection (1) to provide, or provide access to, prescribed information shall do so despite any restriction under the Aeronautics Act on the disclosure of such information.

Section 107.1 was added to the Customs Act by section 61 of An Act to amend the Customs Act and to make related amendments to other Acts (S-23), which received Royal Assent on October 25, 2001, now Chapter 25 of the Statutes of Canada, 2001.

With authority to collect such API/PNR information established, it is appropriate to note under what circumstances such Customs information, including API/PNR information, may be used and disclosed. Section 107(3) of the Customs Act provides authority to disclosure:

(3) An official may use customs information for the purposes of administering or enforcing this Act, the Customs Tariff, the Special Imports Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act or for any purpose set out in subsection (4), (5) or (7).

"Official" and "customs information" are defined in s. 107(1) as:

"official" means a person who

(a) is or was employed in the service of Her Majesty in right of Canada or of a province;

(b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or

(c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province.

"customs information" means information of any kind and in any form that

(a) relates to one or more persons and is obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff; or

(b) is prepared from information described in paragraph (a).

Subsections (4), (5) and (7) describe an extensive series of situations where disclosure may take place:

(4) An official may provide, allow to be provided or provide access to customs information if the information

(a) will be used solely in or to prepare for criminal proceedings commenced under an Act of Parliament;

(b) will be used solely in or to prepare for any legal proceedings relating to the administration or enforcement of an international agreement relating to trade, this Act, the Customs Tariff, the Special Import Measures Act, any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, before

1. a court of record, including a court of record in a jurisdiction outside Canada,
2. an international organization, or
3. a dispute settlement panel or an appellate body created under an international agreement relating to trade;

(c) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Canada Pension Plan, the Customs Tariff, the Employment Insurance Act, the Excise Act, the Excise Tax Act, the Export and Import Permits Act, the Income Tax Act, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act by an official of the Agency;

(d) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Excise Act or the Export and Import Permits Act by a member of the Royal Canadian Mounted Police;

(e) may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual or to the environment in Canada or any other country;

(f) will be used solely for a purpose relating to the supervision, evaluation or discipline of a specified person by Her Majesty in right of Canada in respect of a period during which the person was employed or engaged by, or occupied a position of responsibility in the service of, Her Majesty in right of Canada to administer or enforce this Act, the Customs Tariff, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to the extent that the information is relevant for that purpose;

(g) is reasonably regarded by the official to be information that does not directly or indirectly identify any person; or

(h) is reasonably regarded by the official to be information relating to the national security or defence of Canada.

Subsection 5 provides a further list of individuals to whom customs information may be provided which includes agents of the Crown involved in the investigation of offences or the enforcement of various statutes, as well as individuals enforcing provincial statutes. The subsection further permits disclosure to prescribed individuals for prescribed purposes under prescribed conditions:

(5) An official may provide, allow to be provided or provide access to customs information to the following persons:

(a) a peace officer having jurisdiction to investigate an alleged offence under any Act of Parliament or of the legislature of a province subject to prosecution by indictment, the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged offence may be taken, if that official believes on reasonable grounds that the information relates to the alleged offence and will be used in the investigation or prosecution of the alleged offence, solely for those purposes;

(b) a person that is otherwise legally entitled to the information by reason of an Act of Parliament, solely for the purposes for which that person is entitled to the information;

(c) an official solely for the purposes of developing, administering or enforcing an Act of Parliament or developing or implementing a policy related to an Act of Parliament if the information relates to

1. goods, the importation, exportation or in-transit movement of which is or may be prohibited, controlled or regulated under that Act,
2. a person who that official has reasonable grounds to believe may have committed an offence under that Act in respect of goods imported or exported by that person, or
3. goods that may be evidence of an offence under that Act;

(d) an official, solely for the purpose of administering or enforcing an Act of the legislature of a province, if the information relates to goods that are subject to import, in-transit or export controls or taxation upon importation into the province under that Act;

(e) an official of a participating province, as defined in subsection 123(1) of the Excise Tax Act, or an official of the province of Quebec, if the information relates to the administration or enforcement of Part IX of that Act in that province, solely for that purpose;

(f) an official solely for the purpose of the formulation or evaluation of fiscal or trade policy or the development of a remission order under an Act of Parliament;

(g) an official solely for the purpose of setting off, against any sum of money that may be due to or payable by Her Majesty in right of Canada, a debt due to

1. Her Majesty in right of Canada, or
2. Her Majesty in right of a province on account of taxes payable to the province if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province;

(h) counsel, as defined in subsection 84(4) of the Special Import Measures Act, in accordance with subsection 84(3) of that Act and subject to subsection 84(3.1) of that Act, except that the word "information" in those subsections is to be read as a reference to the words "customs information";

(i) an official of the Department of Human Resources Development solely for the purpose of administering or enforcing the Employment Insurance Act, if the information relates to the movement of people into and out of Canada;

(j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration and Refugee Protection Act, if the information relates to the movement of people into and out of Canada;

(k) an official of the Financial Transactions and Reports Analysis Centre of Canada solely for the purpose of administering or enforcing the Proceeds of Crime (Money Laundering) and Terrorist Financing Act;

(l) a person solely for the purpose of determining any entitlement, liability or obligation of the person under this Act or the Customs Tariff including the person's entitlement to any refund, relief, drawback or abatement under those Acts;

(m) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record in Canada;

(n) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record outside of Canada, solely for the purposes of criminal proceedings; and

(o) prescribed persons or classes of persons, in prescribed circumstances for prescribed purposes, solely for those purposes.

Subsection (7) requires notice in writing to the Privacy Commissioner where information under subsection (6) is disclosed "before its provision if reasonably practicable or, in any other case, without delay after the provision." The Privacy Commissioner may notify the individual to whom the information relates of the provision of the information. Subsection (6) authorizes disclosure to any person, in addition to the disclosure permitted by subsection (5), if, in the Minister's opinion, the public interest in doing so clearly outweighs any invasion of privacy, material financial loss or prejudice to competitive position or where disclosure would clearly benefit the individual concerned.

The resulting information regime is one where CCRA may collect API/PNR data, which then becomes "customs information" and subsequently subject to disclosure to such individuals for such purposes and under such terms and conditions established by CCRA as authorized by s. 107 of the Customs Act. In a Factsheet issued in October 2002 and posted to the CCRA web site¹, CCRA has confirmed this to a certain extent:

CCRA customs enforcement data is currently kept for 6 years. This standard has been agreed to by the U.S. under the Smart Border Action Plan.

The use of API/PNR data is covered under Section 107 of the Customs Act. More specifically, Section 107 authorizes the release of customs information to other agencies and departments for specified public policy purposes. The Supreme Court of Canada ruled in 2001 in Smith v Canada that this practice is both acceptable and appropriate.²

Information 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

Of particular interest for the purposes of this opinion is the fact that, while the Customs Act is silent on the matter of retention, the information regime for the collection, use and disclosure of API/PNR information contemplated by CCRA has a six-year time frame.

The Proposed Public Safety Act, 2002

In reviewing the legislative framework for the collection, use and disclosure of API/PNR information by CCRA, it is useful to compare that regime with the one contemplated by Bill C-17 recently introduced into Parliament in October 2002. Part 1 of the proposed Public Safety Act, 2002 also addresses the subject of the collection of API/PNR data, specifically s. 5 which replaces sections 4.7 and 4.8 of the Aeronautics Act R.S.C. 1985, c. A-2., as amended. The replacement section 4.81 - to be inserted into the Aeronautics Act - concerns the provision of information.

4.81 (1) The Minister, or any officer of the Department of Transport authorized by the Minister for the purposes of this section, may, for the purposes of transportation security, require any air carrier or operator of an aviation reservation system to provide the Minister or officer, as the case may be, within the time and in the manner specified by the Minister or officer, with information set out in the schedule

(a) that is in the air carrier's or operator's control concerning the persons on board or expected to be on board an aircraft for any flight specified by the Minister or officer if the Minister or officer is of the opinion that there is an immediate threat to that flight; or

(b) that is in the air carrier's or operator's control, or that comes into their control within 30 days after the requirement is imposed on them, concerning any particular person specified by the Minister or officer.

(2) Information provided under subsection (1) may be disclosed by persons in the Department of Transport to other persons in that department only for the purposes of transportation security.

(3) Information provided under subsection (1) may be disclosed to persons outside the Department of Transport only for the purposes of transportation security, and it may be disclosed only to

(a) the Minister of Citizenship and Immigration;

(b) the Minister of National Revenue;

(c) the chief executive officer of the Canadian Air Transport Security Authority; and

(d) a person designated under subsection 4.82(2) or (3).

Section 23 of Bill C-17 adds a schedule to the Aeronautics Act which contains a list of 34 information items, substantially similar to those found in CCRA's Passenger Information (Customs) Regulation (section 3) but more specific and slightly more limited in scope:

1. The person's surname, first name and initial or initials

2. The person's date of birth

3. The person's citizenship or nationality or, if not known, the country that issued the travel documents for the person's flight

4. The person's gender

5. The number of the person's passport and, if applicable, the number of the person's visa or residency document

6. The date on which the person's passenger name record was created

7. If applicable, a notation that the person arrived at the departure gate with a ticket but without a reservation for the flight

8. If applicable, the names of the travel agency and travel agent that made the person's travel arrangements

9. The date on which the ticket for the person's flight was issued

10. If applicable, a notation that the person exchanged their ticket for the flight

11. The date, if any, by which the person's ticket for the flight had to be paid for to avoid cancellation of the reservation or the date, if any, on which the request for a reservation was activated by the air carrier or person who operates the aviation reservation system

12. The number assigned to the person's ticket for the flight

13. If applicable, a notation that the person's ticket for the flight is a one-way ticket

14. If applicable, a notation that the person's ticket for the flight is valid for one year and is issued for travel between specified points with no dates or flight numbers assigned

15. The city or country in which the travel included in the person's passenger name record begins

16. The itinerary cities, being all points where the person will embark or disembark

17. The name of the operator of the aircraft on which the person is on board or expected to be on board

18. The names of the operators of aircraft over whose air routes all other segments of air travel included in the person's passenger name record are undertaken, including, for each segment, the name of any operator of aircraft other than the operator that issued the ticket 19. The code of the operator of the aircraft and the identification number for the person's flight

20. The person's destination

21. The travel date for the person's flight

22. Any seat assignment on the person's flight that was selected for the person before departure

23. The number of pieces of baggage checked by the person to be carried in the aircraft's cargo compartment on the flight

24. The tag numbers for the person's baggage

25. The class of service in respect of the person's flight

26. Any stated seat request in respect of the person's flight

27. The person's passenger name record number

28. The phone numbers of the person and, if applicable, the phone number of the travel agency that made the person's travel arrangements

29. The person's address and, if applicable, the address of the travel agency that made the travel arrangements

30. The manner in which the person's ticket was paid for

31. If applicable, a notation that the person's ticket was paid for by another person

32. If applicable, a notation that there are gaps in the itinerary included in the person's passenger name record that necessitate travel by an undetermined method

33. Routing information in respect of the travel included in the person's passenger name record, being the departure and arrival points, codes of the operators of the aircraft, stops and surface segments

34. If applicable, a notation that the person's ticket is in electronic form and stored electronically in an aviation reservation system

Subsequent subsections in s.4.81, through delegation, identify the recipients of API/PNR information as Immigration officials, customs and tax officials within CCRA, officials of the Canadian Air Transport Security Authority, RCMP personnel and CSIS personnel but only for the purposes of transportation security.

Section 4.82 goes into further detail as to disclosure to RCMP, CSIS and other personnel designated by the Commissioner of the RCMP and the Director of CSIS and subsections 4.82(7)-(12) authorize disclosures in a number of limited number of circumstances to identified individuals.

With respect to Immigration, CCRA and Transport personnel, subsections 4.81(6), (7) and (8) deal with the destruction of API/PNR information:

(6) Subject to subsections (5), (7) and (8), information provided to the Minister or an officer of the Department of Transport under subsections (1) and (2) or disclosed to the Minister under subsection 4.82(8) must be destroyed within seven days after it is provided or disclosed under that subsection.

(7) Information disclosed under subsection (3) to a person referred to in any of paragraphs (3)(a) to (c) must be destroyed within seven days after it is disclosed under that subsection.

(8) Information disclosed under subsection (3) to a person referred to in any of paragraphs (3)(a) to (c) that is further disclosed under subsection (4) must be destroyed within seven days after it was disclosed under subsection (3).

Finally, subsection (9) of Bill C-17's amendment of s. 4.81 is also noteworthy:

(9) Subsections (6) to (8) apply despite any other Act of Parliament.

Subsections (6) to (8) would thus appear to apply despite the provisions of the Customs Act relating to API/PNR information.

ANALYSIS

Implications of API/PNR Data Collection

Four aspects of CCRA's API/PNR Initiative under the Customs Act merit attention:

a) The scale of collection;

b) The breadth of information collected;

c) The period for which it is held; and

d) The ability to disclose that information to a variety of different federal and provincial organizations.

The nature of API/PNR data to be submitted to CCRA pursuant to its Regulation may at first blush not appear significant in and of itself. People do not ordinarily associate airline administrative information (e.g. seat number, airline ticket number, etc.) with the concept of "personal information" as that term is commonly understood and used by Canadians. However, there are a number of aspects of the collection of API/PNR information that warrant further consideration.

The first aspect is the fact that the contents of the PNR sought extend beyond travel information into the area of "biographical data" consisting of sensitive personal information.³ The European Union's Article 29 Working Party on Data Protection has issued a recent report on the subject of transferring API/PNR information to the United States.⁴ In that report the Working Party notes, in terms equally applicable to the PNR data of individual Canadians, that:

"[PNR data].may include not only journeys completed in the past but also religious or ethnic information (choice of meal etc.), affiliation to any particular group, data relating to the place of residence or means of contacting an individual (e-mail address, details of a friend, place of work etc.), medical data (any medical assistance required, oxygen, problems relating to sight, hearing or mobility or any other problem which must be made known to ensure a satisfactory flight) and other data linked, for example, with frequent flyer programmes (Frequent Fliers number)."

A degree of personal information one might not normally think of revealing to an airline or a travel agent can be gleaned from the "raw data". Given the analysis that may be produced, especially insofar as it is proposed that the data be held for six years, it is not beyond the realm of possibility that one could easily assemble the air travel patterns of a particular individual or the travel history of an individual over that time frame. Indeed, one anti-terrorism investigative technique is to trace the activities of known terrorists in order to identify unknown associates. The individual data elements may be viewed as inconsequential but collectively they permit the creation of individual travel profiles.

A second aspect is the comprehensiveness of the collection. API/PNR information is collected on all individuals traveling to Canada, including all Canadian citizens. There is no suggestion that only the data on "high-risk" individuals (as that term is used by CCRA) will be retained nor is there a justification for the retention of data on all Canadians beyond a period one might reasonably assume appropriate.

If the purpose of collection is efficient Customs or Immigration administration at Canada's ports of entry or to assure transportation security, a reasonable person may not object to th