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Ottawa, November 30, 2001 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Hon. David Collenette, Minister of Transport:
Dear Minister Collenette:
I have been in discussions this week with senior officials of your department regarding my concerns about aspects of Bill C-42 - and now its severed offshoot, Bill C-44 - that touch directly on the privacy rights of Canadians. I am pressing for a number of amendments that would allow the legislation to fully meet its security objectives while reducing the scope for unjustifiable intrusions on the fundamental right of privacy.
These discussions have so far been cooperative, constructive and positive. Your officials are to be commended for the approach they are taking. It remains my hope that good results can be achieved.
However, the new Bill C-44, dealing with the provision of personal information about Canadian air travellers to foreign authorities, is now being rushed through Parliament with such urgency that it adds a new dimension to the situation.
I have not yet been able to obtain any assurance that an amendment to C-44 that I regard as crucial will in fact be introduced. Since irrevocable decisions regarding this legislation are so close to being made, I have judged that I therefore have no choice but to convey my point of view directly to you, and to the Canadian public, at this time. I accordingly today discussed my concerns and recommendations with you, and this letter - which I am making public - summarizes my positions.
This is not intended to suggest any criticism of you or your officials regarding the course of discussions as they have transpired thus far. Rather, it is required by my duty to do everything possible to achieve a good outcome for the privacy rights of Canadians, and to be as transparent as appropriate about my activities in that regard.
Accordingly, my position on Bill C-44 is as follows:
Authorizing aircraft operators to disregard the Personal Information Protection and Electronic Documents Act and provide the authorities of foreign countries with "any" personal information about Canadian travellers required by the laws of such countries is an extremely serious matter. It is particularly troubling when the laws of those countries, as in the case of the U.S., provide no safeguards or restrictions as to how such information may subsequently be used or to what third parties, including other countries, it may be disclosed. It is possible to envisage circumstances in which this could put Canadians at very real risk.
I am aware, however, that the U.S. is effectively forcing Canada to adopt such legislation, by saying it will refuse aircraft permission to enter the country unless they comply. This is repugnant. At the same time, it is disappointing that the Government of Canada has apparently made no effort to insist on negotiating undertakings from the U.S. that personal information about Canadians provided to American authorities for security reasons under this law will not be used for other purposes nor disclosed to third parties. It is very much my hope that you will still do so after passage of this legislation, and that your regulations will be used to require such safeguards.
At present it is absolutely essential at the very least, in my view, that the Government of Canada not be the back-door beneficiary of this forced intrusion into the privacy rights of Canadians. It would be entirely inappropriate for departments and agencies of the Government to be able to use information-exchange agreements with the U.S. and other countries to repatriate this personal information about Canadians for any purposes other than security. Such a "windfall" acquisition of otherwise-protected personal information would surely throw the government's approach to this issue into disrepute.
I am therefore recommending an amendment to the Bill, with wording to the following effect:
"No information provided to a competent authority of a foreign state under subsection (1) may be collected from that foreign state by the government of Canada or an institution thereof unless
(a) the information is collected for the purposes of protecting national security, public safety or defence, and
(b) the information is not collected, used or disclosed for any other purpose."
In view of the extreme haste with which this legislative process is being completed, I would very much appreciate your urgent personal attention to this recommendation, and I look forward to your response.
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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