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Ottawa, October 18, 2001-The Privacy Commissioner of Canada, George Radwanski, today issued the following statement:
I have today communicated to senior officials in the Department of Justice and in the office of Justice Minister Anne McLellan my extremely grave concern about the potential impact on privacy rights of a proposed provision in the new Anti-terrorism Act.
When I was briefed last week by Justice Department officials, at the request of the Minister, on the intended directions of this Act and invited to comment, I was told that the provision in question-Sections 103 and 104-was intended to ensure that the Federal Court of Canada could not order the disclosure of information that would imperil security, international relations or national defence.
To that end, the Privacy Act and the Personal Information Protection and Electronic Documents Act were to be amended to permit the Attorney General of Canada to issue a certificate prohibiting the disclosure of information sought under these Acts.
Such a provision would not have significantly limited the role of the Privacy Commissioner, since this type of sensitive information is already protected from disclosure under provisions of the existing legislation. The concern as explained to me was only that the Federal Court might otherwise be able to override this protection in a particular instance, and that this possibility might inhibit security authorities in other countries from providing sensitive information to Canada.
But in addition to providing for the issuance of such ministerial certificates, the bill goes on to amend the two Acts with a provision that states: "this Act does not apply to information the disclosure of which is prohibited by a certificate." This would go far beyond prohibiting disclosure of information. Where a certificate is issued, privacy law would not apply at all. The Privacy Commissioner would have no power of oversight to advise whether the certificate powers are being exercised reasonably, and no right to audit.
Even worse, nothing would preclude the issuance of certificates that prohibited the disclosure of all information in the hands of a given department or agency. This means that the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE), the Royal Canadian Mounted Police (RCMP) or any other Federal department or agency could effectively be put entirely outside the reach of privacy law.
This provision would be an unnecessary and unjustifiable removal of vital privacy rights of Canadians. I have requested the Government of Canada to undertake to withdraw it.
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