Privacy Commissioner of Canada's Appearance before the Legislative Committee on Bill C-17, Public Safety Act
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February 6, 2003
Privacy Commissioner of Canada
I very much appreciate this opportunity to meet with you this morning. I really have only one privacy concern in this bill that I want to raise with you. It's a large bill with a great many facets, but there's only one privacy issue I want to raise with you.
It is in fact, of the various concerns you have heard and will hear as a committee, probably the easiest to fix, because it has absolutely no bearing whatsoever on either transportation security or national security against terrorism, which of course are the objects of this bill. And yet, it is also a concern that is crucially important because of the precedents the provision in question would set and the doors it would open, which are of grave concern from a privacy point of view.
I want to emphasize, in addressing this issue, as I emphasized in my annual report, which was made public last week, that since September 11, I have not once objected to a single actual anti-terrorism measure. I regard it as of course unthinkable that, as Privacy Commissioner, I would for a moment seek to stand in the way of any measures that are genuinely and legitimately necessary to protect Canadians against terrorism. I have not done so and I would not do so.
But the provision in question, as I say, is not related to anti-terrorism or transportation security. Rather, it's something slipped into this bill that really is quite unrelated to its purposes. What I'm referring to are the aspects of proposed section 4.82 of the bill, and specifically proposed subsection 4.82 (11), which empowers RCMP officers examining passenger data, even on flights entirely within Canada, to notify local authorities or take appropriate steps to effect an arrest if they happen to identify anyone who is wanted on a warrant for any of a wide number of Criminal Code offences completely unrelated to either terrorism or transportation security.
My difficulty with this, let me stress, has nothing to do with trying to protect criminals, and in fact sorting out this provision would in no way protect criminals. The difficulty, rather, is that it opens the door for the first time in a completely inappropriate, and in this instance unnecessary, way to mandatory self-identification to the state, to the police, for general law enforcement purposes.
As I'm sure you know, in Canada we are not required to identify ourselves to the police as we go about our normal law-abiding business. Unless we are being either arrested or carrying out a licensed activity such as driving, we are not even required to carry ID, let alone to identify ourselves to the police.
When we fly these days, that's the exception. Even on a domestic flight of course you're required to provide your name and to show photo ID. When that information is made available to the police, as it will be to the RCMP under proposed section 4.82, the effect is exactly the same as if we were required to notify the police every time we travel so they can check whether we are wanted for any of a number of Criminal Code offences.
Now, as long as that's limited to anti-terrorism in this instance, to looking at whether a known or suspected terrorist is aboard a flight, I do not object from a privacy perspective. I question whether it will be particularly useful because, as September 11 showed, individuals who commit terrorist acts are not necessarily known beforehand as terrorists, and people who are likely to be known as terrorists probably won't travel under their own identities. But if it's even a little bit helpful against terrorism, I do not object.
But when you expand it to looking for people wanted on offences that have nothing to do with terrorism or with aviation security, it's opening a very dangerous door. If we can in effect be forced to identify ourselves to the police so they can check if we're wanted on a warrant for any number of offences when we board an airplane, why stop at air transportation? Once that door is open, once that principle is accepted, why not have the same thing when you take a train, a bus, when you rent a car?
If that kind of self-identification is acceptable, then the principle at least would permit the police to stop us on the street to check if we're wanted for something, or to pull over cars and check the ID of anybody in the car just to see if they're wanted for any Criminal Code offence.
Now, I know you were told, as was I when I raised this concern, that, well, it's of course for anti-terrorism and transportation security, but if we accidentally or incidentally find out that a terribly dangerous criminal, a wanted criminal, is on the flight, Canadians would expect us to be able to do what's necessary to effect an arrest.
Yes, of course, but that's a red herring. I have an opinion that I will share with you, that my office will distribute before we're through, from Morris Manning, one of Canada's leading criminal and constitutional lawyers, who confirms what anyone who's a lawyer here will certainly know, which is that police officers, the RCMP as peace officers, have both a statutory and a common law right and duty to do what's necessary to effect an arrest if it comes to their attention that there's someone wanted on a nationwide warrant for a serious offence.
So you don't need this provision to give them permission, provided it is indeed incidental. If the purpose of this is in fact to go fishing regularly in a database, looking for people wanted on warrants, then you have a very different situation, and in fact that raises the additional question that if the police compare passenger information with the general police database, CPIC, which is full of all kinds of things, including information on people wanted on warrants, then there's nothing incidental about it.
They should be looking, if they're looking for transportation security and anti-terrorist matches, in a very different database, which is called SCIS, the Secure Criminal Investigation System. If they look for matches with that system they will only be identifying people wanted on matters pertaining to security.
If they look in the other base, one can't claim it's incidental if they look in CPIC. Looking in CPIC and incidentally finding people wanted on a whole range of Criminal Code warrants is the same as dropping your fishing line in the pond that's stocked with trout and incidentally pulling out a trout. There's nothing incidental about it.
The final point I want to make is that apart from the intrusion on the fundamental privacy right of anonymity for general law enforcement purposes, this also creates a real risk of unfairness to individuals. The level of self-identification for flying on an aircraft, certainly on a domestic route, is still relatively low. You have to provide your name and a photo ID.
Now, if you have a name like George Radwanski, you're relatively lucky if this goes forward, because how many of us are there in the country? But take a more common name; just for fun, we chose one at random, Paul Martin. We looked in Canada 411, and there are 269 listings in that alone for Paul Martin. Many other names are even much more common than that.
If you have a relatively common name and there happens to be a warrant out for someone with a similar name, given the relatively low level of authentication you run an excellent chance of being detained, and led off the plane in handcuffs, until you can establish that you're not that individual, which of course would lead to arguments that we need more detailed identification. If we had an identity card I'm sure Mr. Coderre would say then that wouldn't be a problem. It just leads into a whole new set of issues that are completely unnecessary.
I'll wrap up on this point by simply urging you to make the simple fix of dropping proposed subsection 4.82(11) and proposed paragraph 4.82(1)(a), which includes the definition of warrant, because they have no pertinence to the purpose of this legislation. If the government feels at some point that we should be introducing mandatory self-identification to the police for general law enforcement purposes, then surely this is a debate that should be carried out on its own merits in regular criminal justice legislation, and not slipped into a bill that really is aimed at anti-terrorist security.
Thank you very much for your kind attention.
The Chair: Thank you very much, Mr. Radwanski.
Mr. Lunn, please.
Mr. Gary Lunn (Saanich-Gulf Islands, Canadian Alliance): Thank you very much, Mr. Chair.
I have two questions. The first is specifically related to your first question, the proposed subsection 4.82(11) that empowers the RCMP officers when they examine this data, to basically, without any reasonable probable grounds, stumble across a warrant and then pass it on to local law authorities.
Number one, do you think that violates the charter? I think there are going to be some questions there.
And then, going on to a new area, I want to ask about the PNR, the passenger name record, that the airlines keep. I'm not quite sure where, but under the former bill S-23, which is the Customs Act, I believe they have a similar provision where they can collect this PNR data, and they actually can retain it for six years. In this bill it's only seven or eight days, but I believe your office also has some legal opinions that also suggest that this provision violates sections 7 and 8 of the charter.
Are we going too far? Are we infringing on the rights of individuals? Is this absolutely necessary in the war on terrorism? I'd like your thoughts on those two areas.
Mr. George Radwanski: I'll answer the second question first. The answer broadly speaking is, yes, we are going too far on a variety of fronts and that was the thrust of my annual report, which I tabled last Wednesday. I want to emphasize, though, and there's been quite a bit of confusion about this, that although both the CCRA-Customs Act situation and these provisions of Bill C-17 deal with airline passenger information, they are two totally separate issues from a rights point of view.
The issue with the CCRA, which of course is not before this committee, is that they were originally supposed to be obtaining this information solely for facilitating identifying people at customs for secondary inspection and were not supposed to keep it at all, and now have decided to keep, and are in the process of keeping, all the information, detailed information, on everybody's travels for six years in a database that will be available for a whole range of purposes unrelated to a customs mandate or any mandate that CCRA has. That's one issue.
So the issue here is not retention. The issue here is a legitimate use of this information at the time it's collected.
Mr. Gary Lunn: If I may interrupt you for one quick second, could it not be retention? Could they not under this act turn it over? Because basically they can turn it over to any authority. Could they not turn it over to CCRA, and then they have it for six years?
Mr. George Radwanski: It's possible. They're not supposed to be keeping it at all, the way this is set up in theory. However, I must admit that I've seen some disturbing instances, notably the CCRA one where what one is told will happen at the time legislation is before Parliament and what does happen is different. But this basically states that, except in a few isolated instances that must be documented, and reviewed annually, and so forth, the information is not to be retained, and there is no provision, at least ostensibly, for simply passing it on to another body such as CCRA to retain it.
To answer the last part of your question on the charter, I don't know that the charter would be engaged on this. The question is whether it's a reasonable law to shoehorn in to this provision. Now, obviously, if the right thing from my perspective is not done, if this passes as it is, I will have to investigate other considerations, but at this point I'm simply urging this committee to fix what is a very easy fix by dropping these provisions, which do nothing for the purpose of the bill.
Mr. Gary Lunn: Thank you.
The Chair: Mr. Mahoney.
Mr. Steve Mahoney (Mississauga West, Lib.): Thank you, Mr. Chair.
Mr. Radwanski, I believe I heard you correctly when you said we're not required to carry ID in this country, but surely when we're driving a vehicle we're required to have our driver's licence, because if you're pulled over and you don't have it, I believe there's a fine that goes with it. Many of us may have had that happen to us in the past &mdash not that I have.
I also believe that once you're pulled over and you give them the driver's licence, the officer goes back to the car, at which time he checks the database to determine whether or not you have any outstanding tickets, or perhaps even more than that, any outstanding warrants. That exists now. So I'm a little puzzled by your statement.
The other aspect of it is that it was my experience as &mdash and some might find this hard to believe &mdash a teenager in a place called Yorkville in Toronto, when there were demonstrations on a regular basis against anything we could think of, the police would invariably ask us for identification and if we had any money on us, and if we didn't they could charge us with loitering.
That was a reality as well. I always had ID and a little of money, but many of my friends didn't and they were charged subsequently as well. So this already exists in our world.
Mr. George Radwanski: With respect, not exactly.
First of all, what I said was that unless we are carrying out a licensed activity, such as driving, we are not required to carry ID. Obviously, if you are carrying out a licensed activity, then you need the document that proves that you're in fact licensed to carry it out, whether it's driving, or hunting, or whatever it may be.
Mr. Steve Mahoney: And they subsequently check to see if there are any outstanding warrants.
Mr. George Radwanski: That's my answer on the first point you raised.
On the second, bear in mind that the police have to have a reasonable cause to have stopped you in the first place. They can't simply pull you over to check if you're wanted for anything. And that's the distinction I am making, that flying in this country is not yet, thank God, a licensed activity if you're a passenger. And you can't be pulled over, hypothetically speaking, on suspicion of something just by virtue of being a passenger. So the analogy is not correct.
As for your example, sir, first of all, vagrancy laws have been changed since those days, and secondly, the police did not have a right in those days to ask for identification.
Mr. Steve Mahoney: Well, I wish I had known that then. I would have had a great defence.
Some hon. members: Oh, oh!
Mr. George Radwanski: That's the joy of having a Privacy Commissioner.
Mr. Steve Mahoney: I have two things to say on the comment you made with regard to it being a fishing expedition. First of all, proposed subsection 4.82(11) states that if the "designated person" &mdash the officer &mdash "has reason to believe that the information would assist in the execution of a warrant"; and in your view, is there a way that the words "has reason to believe" could be tightened up to enhance the protection of privacy? In other words, if they had "substantial" reason to believe, or something to that effect.
If you go back to proposed paragraphs 4.82(5)(a) and (b), the other aspect of this is that it must be a "flight specified by the person", in (a). By the way, proposed subsection 4.82(4) is for the RCMP, and proposed subsection 4.82(5) is for CSIS. So they must specify the flight number, as opposed to casting a line in a trout pond. Or, in proposed paragraph 4.82(5)(b), they must specify a particular person by name, as opposed to casting a line in a trout pond.
Does this not resolve some of your concerns?
Mr. George Radwanski: I certainly wish it did.
First of all, my issue with proposed subsection 4.82(11) is not with the words "reason to believe", but with "warrant", because warrants simply have no pertinence to the purpose and goal of this legislation. If it were a warrant related to national security or aviation security, I wouldn't have a problem, but simply having a warrant specified by regulation, as defined earlier, for a huge list of completely unrelated offences is the issue. And, of course, if they look and CCRA can see you're wanted on a warrant, they have "reason to believe". So that's not the issue.
With regard to specifying flights, it is not my understanding that the intention of this is only to obtain this information pertaining to a very few flights. I mean, specified flights may be all the flights flying that day, or every day. My understanding is that the purpose of this is basically to be able to carry out this kind of match-certainly over time-with regard to every flight, as the CCRA is doing with regard to the information it gets.
The Chair: Monsieur Laframboise.
Mr. Mario Laframboise (Argenteuil-Papineau-Mirabel, BQ): Thank you, Mr. Chairman.
Let us be clear on one thing, Mr. Radwanski. I hung on your every word since the start of deliberations on Bill C-17 and during deliberations on other bills. You are the security valve with regard to the protection of the public's rights. There is a good reason why you are called the Privacy Commissioner. It is what distinguishes a free society from a police state.
It is not true that there is a pressing urgency for this bill. The events of September 11 happened two years ago and since then it has been clear the Liberal Party and the bureaucrats would like Canada to become even more of a police state. Please do not give up, because paragraph 4.82(11) is unacceptable.
You also made recommendations with regard to paragraph 4.82(14). You said that should information be collected, it should be sent to you. The Canadian Bar Association, which appeared before the committee, supports your recommendation. This is what it said:
With regard to the conservation of passenger information, we approve the recommendation made by the Privacy Commissioner, who said that he should receive copies of any files created under paragraph 4.82(14).
I did not hear you talk about this recommendation. Have you given up on it? Please do not, because the Liberals and the bureaucrats want a police state. You are there to defend the interests of all citizens, all Quebeckers and all Canadians. I just want to hear you confirm that you intend to keep up the fight for your initial recommendations.
Mr. George Radwanski: No, I have not changed my recommendations. For now, it is more a question of priorities. I would like all of my recommendations to be followed, but if there is one thing which is very dangerous, it is the issue I raised this morning. I only had 10 minutes to give my presentation and I hope that the other recommendations will also be accepted.
Mr. Mario Laframboise: So you are sticking with all your recommendations.
Mr. George Radwanski: Yes, of course.
Mr. Mario Laframboise: I feel reassured. As for the power of making an interim order, which would be given to certain departments under the bill, I think your representations fell on deaf ears. Under the bill, when a department, such as the Department of Health, wants to impose an interim order, it is exempted from sections 3, 5 and 11 of the Statutory Instruments Act, which is the filter for the Canadian Charter of Rights and Freedoms. For instance, the Health Department could force an entire population to be vaccinated and decree that children in school and patients in hospitals must be vaccinated. What is more, people would not have the right to object, because this order would not have to pass the test of the Canadian Charter of Rights and Freedoms. Did you analyze this situation or did you concentrate on privacy issues?
Mr. George Radwanski: I can only answer questions pertaining directly to privacy. Of course, there are other things in the bill that affect human rights and freedoms in one way or another, but they are not part of my mandate.
Mr. Mario Laframboise: Thank you very much.
The Chair: Madam Jennings.
Mrs. Marlene Jennings (Notre-Dame-de-Grâce-Lachine, Lib.): Merci.
Thank you very much for your presentation. I have three questions.
On the issue of proposed subsection 4.82(11), you think it should be deleted because police officers and members of the RCMP under statutory law and common law have all the authority they require right now to apprehend, or to execute a warrant.
If there were a pre-existing judicial order for access to any information that was collected under proposed section 4.81, would you have a problem if the police officer had access to that information?
Mr. George Radwanski: If you are drawing a distinction between a judicial order pertaining to a specific circumstance versus treating every Canadian as a suspect, that's a completely different matter. But then again, you don't need this provision touching on warrants.
Mrs. Marlene Jennings: No, I understand that. I'm just asking, if there's a pre-existing judicial order &mdash which may be in order to execute a warrant &mdash but if the officer has gone before a judge, has been able to establish to the satisfaction of the judge that they have reasonable grounds to believe that this person for whom a warrant exists may be travelling....
Mr. George Radwanski: It's a completely different matter. That, in fact, is what often happens now, as I understand it &mdash a completely different matter.
I'm not objecting to the existing operations of Canadian law. I'm objecting from a privacy point of view to adding something that on the face of it is redundant, but that nevertheless sets very dangerous precedents and opens doors that should not and don't need to be opened.
Mrs. Marlene Jennings: I understand that. Thank you.
So if the provision, the proposed subsection, were to be amended to state "warrants that are directly related to terrorist activity", etc., you wouldn't have a problem with that?
Mr. George Radwanski: No.
Mrs. Marlene Jennings: And with regard to a warrant for any other crime, if there's a pre-existing judicial order allowing access to the information, obviously you don't have a problem.
Secondly, I've read this several times, and I have to date not been able to find any punitive provisions for non-compliance, in terms of the seven-day destruction rule. Do you have any concerns? Have you found anything in this legislation that says if the information is not destroyed after seven days, here's what happens to you?
Mr. George Radwanski: No. There is no such specific provision.
Now, in fairness, in most laws of this kind, there isn't. They would be clearly in violation of the legislation. I hope it never becomes fully relevant, but there is a Criminal Code provision that generally makes it a criminal offence to violate any law of Canada. I don't have the exact citation in my memory. That would apply to many things, including even the Privacy Act. Certainly anyone who did not comply with this, as with other provisions, would be violating a law of Canada.
Mrs. Marlene Jennings: Okay. You just answered my other question on whether there were any other provisions in other legislation. You stated there was something in the Criminal Code.
On my last point, the RCMP has governance bodies that oversee it and ensure it fulfills its mandate with respect to and in compliance with its legislation, etc. Correct me if I'm wrong, but I would assume that those oversight bodies would have the authority, when they're doing their audit or oversight, to determine whether or not the RCMP, for instance, has complied with those sections of Bill C-17 that come under their authority.
Mr. George Radwanski: If you're referring to retention, that would certainly be correct, and I, of course, would have the right to oversee that as well. They'd have no legislative right to retain, so we'd have a different set of issues. But if you're referring to the provision that concerns me about the warrants, if it's in the law it's in the law. An oversight body can only ensure that they comply with the law. It doesn't change the fact that we're putting in something that should not be in this legislation.
Mrs. Marlene Jennings: I wasn't referring to the warrant. I was referring to compliance or not.
Mr. George Radwanski: Oh, no, there are oversight mechanisms for that.
The Chair: Thank you very much, Ms. Jennings.
Ms. Desjarlais, please.
Mrs. Bev Desjarlais (Churchill, NDP): Thank you.
I want to thank you for your information this morning. I've had the opportunity to hear your comments through Transport before, as well.
If I can fit this in under the scope of privacy, I'd just like to get your comments on the requirement for the landed immigrant card they now must carry, and the fact that on their application they must indicate where they've travelled for the last five years.
Would that information &mdash I'll make it fit the bill, Steve &mdash when they go on an airline then be related to the police, or to whatever other agency the information would be transferred?
Mr. George Radwanski: Look, you're putting me on the spot. I didn't come here today mentally prepared to address that issue. I did not object to the landed immigrant card per se when it was introduced. In fact, we were assured it would not have to be used or produced for any purposes other than was the case with the IMM 1000 form. So from that point of view I had no concern.
I did have a concern that this not open the door to a nationwide ID card for everybody, and we do see that problem starting to rear its head. But on the specific issue you're raising about what additional information is required to be provided, I frankly haven't been briefed to get into that today. But I'd be happy to pursue it at another time.
Mrs. Bev Desjarlais: Okay.
Mr. Mahoney suggested that pretty much everybody carries ID. In your experience as Privacy Commissioner, would you say that everybody carries ID, or for some reason has to carry ID?
Mr. George Radwanski: I'm sure there are many people who don't, but that really isn't the central issue in this instance anyway. Whether we carry ID or not, most of us have something on our person that would identify us one way or another. But the central point is that we are not required to produce it for the police or to identify ourselves to the police unless we are carrying out a licensed activity so they can check whether we are in fact licensed, or unless we are actually being placed under arrest.
That's completely different from the circumstance that would obtain here, where you have de facto mandatory self-identification to the police by virtue of the fact that you have to identify yourself to the airline. Then the airline is required to share this information with the police; and then the police in turn get to use it to see if you're wanted for any of a range of things. And if you once go there....
If that principle is acceptable, that you have to identify yourself to the police s
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