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

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February 10, 2003
Ottawa, Ontario

George Radwanski
Privacy Commissioner of Canada


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

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

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

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

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

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

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

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

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

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

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

Thank you very much.

The Chair: Thank you, Mr. Radwanski.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I'll stop there.

Mr. Kevin Sorenson: Thank you.

The Chair: Monsieur Lanctôt, for seven minutes.

[Translation]

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

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

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

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

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

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

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

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

Mr. Robert Lanctôt: You have a thankless task.

Mr. George Radwanski: It is a challenge.

Mr. Robert Lanctôt: As to how much...

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

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

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

[English]

The Chair: Thank you, Monsieur Lanctôt.

Mr. Borotsik, for seven minutes.

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

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

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

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

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

Mr. George Radwanski: They intend to.

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

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

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

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

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

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

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

The Chair: Thank you, Mr. Borotsik.

Mr. McKay, seven minutes.

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

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

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

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

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

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

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

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

The argument the government uses is, if, while looking for terrorists, we incidentally came upon a wanted murderer sitting in the seat next to you, the RCMP should surely have the power to notify local authorities and cause the person to be arrested. Of course they should, but for that you don't need the reference to warrants, because every police officer has not only a common law right, but a duty to do whatever is necessary to effect apprehension if he becomes aware that someone wanted on a warrant for a major criminal offence is around. So you don't need it if it's incidental. Where there's a reason

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