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Ottawa, November 22, 2001 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Rt. Hon. Joe Clark, leader of the PC/DR Coalition:
Dear Mr. Clark:
In a media scrum after Question Period yesterday, you stated that I, as Privacy Commissioner, had "climbed down pathetically" from my previously stated concerns about the impact on privacy rights of certain provisions of Bill C-36. You said that someone should ask me "what influences were brought to bear" on me.
I have allowed similar statements by you in the past to pass without comment, in the hope that they were isolated lapses. But because it is important that Canadians not be misled as to the exercise of my responsibilities and those of my Office, I now judge it necessary to respond to you.
My concerns about the certificate provisions of Bill C-36 as originally drafted are fully and publicly documented - in my statement of October 18, my testimony before the House of Commons and Senate committees on October 23, and my letter of November 8 to the Minister of Justice. In my October 23 testimony and my November 8 letter, I recommended specific amendments. All this is available on the web site of my Office, at www.priv.gc.ca.
The concerns I raised were the following:
- The provisions as drafted went far beyond the government's stated intent. That intent was to ensure that a Federal Court judge could not, on reviewing an application from an individual, set aside certain exemptions that exist in the Privacy Act and the Personal Information Protection and Electronic Documents (PIPED) Act and order the disclosure of the information. These exemptions prevent an individual from accessing personal information about himself if that would be detrimental to national security, defence or international relations. The Federal Court has exercised this power only four times in the nearly 20 years that the Privacy Act has been in effect. The stated intent of the provisions was to ensure that the mere possibility, however remote, of such forced disclosure would not deter foreign countries from sharing sensitive anti-terrorism information with Canada. The provisions, however, went vastly further.
- Rather than only prohibit disclosure about and to a given individual, the provisions would have permitted the Attorney-General to issue certificates prohibiting the disclosure of any information under the Privacy Act (and the PIPED Act). That would have made it possible for the Minister to issue blanket certificates that applied to an entire agency or department of the Government, or indeed to every agency and department.
- The provisions went on to state that when a certificate was issued, the Privacy Act - in its entirety - would not apply. This meant that if an individual's personal information was the object of a certificate, he would not only be unable to obtain access to his information - he would lose all the protections of the Act regarding collection, use and disclosure of personal information, including the right to an independent review by the Privacy Commissioner. If blanket certificates were issued, all Canadians would lose those protections. The Act could, in effect, be abrogated at ministerial discretion.
I therefore recommended several specific amendments:
- The Minister should only be able to issue a certificate after an application for review of an invoked exemption was made to the Federal Court. This would preserve intact the oversight powers of the Privacy Commissioner up to that point, including the power to investigate complaints and make recommendations.
- It should be specified that any such certificate would apply only to information about a particular individual, to preclude the issuance of blanket certificates.
- It should be specified that when a certificate is issued, it affects only the individual's right to obtain access to his personal information; even for that individual, all the other protections of the Act and oversight of them by the Privacy Commissioner would remain intact.
In the amendments introduced by Minister McLellan on Wednesday, every single one of these concerns and recommendations was fully addressed.
A certificate can be issued only after a court or tribunal has ordered release of information, and the issuance of that certificate can be appealed to the Federal Court of Appeal. All the powers of the Privacy Commissioner to investigate any given complaint and make recommendations up to that point remain intact.
A certificate thus issued can only apply to information about a particular individual, precluding blanket certificates. And the amendments explicitly state that when a certificate is issued, all the other privacy-protecting provisions of the legislation remain intact.
I repeat, so that you cannot possibly misunderstand me: Every single change for which I pressed for a month with all the vigor at my disposal - including publicly and repeatedly criticizing the Minister of Justice and the government - has now been introduced. What, then, are you alleging that I "climbed down" from?
What, other than the public interest, do you suppose influenced me to successfully pursue this outcome? One might more appropriately ask what influences you, Mr. Clark, to seek to undermine the effectiveness of an Officer of Parliament and his Office by making demonstrably unfounded assertions of this sort.
Exercising independent oversight inevitably requires taking some controversial positions, and being criticized comes with the job. But I cannot and will not accept totally unwarranted aspersions intended to undermine public confidence in the independence and integrity of myself and my Office in the exercise of our duties.
I am honoured to have been able to successfully defend the privacy rights of all Canadians in this important matter, in accordance with the responsibilities of my position. It is for you to determine, and perhaps explain to Canadians, what honour you see in the type of behaviour in which you have engaged.
Privacy Commissioner of Canada
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For more information, contact:
Office of the Privacy Commissioner of Canada
Tel.: (613) 995-0103
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