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Ottawa, May 7, 2002 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Honourable David Collenette, Minister of Transport:

Dear Minister Collenette:

As you know, I have serious concerns about section 4.82 of your Bill C-55, which would give the RCMP and CSIS unrestricted access to personal information of air travellers. In summary, my concern is that its provisions could fundamentally and unnecessarily alter the balance between individuals and the state that exists and should exist in a free society such as Canada.

When I met with you on Thursday, April 25, as you disclosed last week in the House of Commons, I outlined these concerns about the provision in question, which had been described to me in general terms. I requested that you briefly delay introduction of the legislation to allow time to explore options for meeting the legitimate anti-terrorism objectives of this provision without unduly infringing on privacy rights.

My hope had been to avoid unnecessary public controversy by working together cooperatively, as had been the case with Bills C-44 and C-42. I regret that you have declined to take this course. Since the matter is now in the public domain, in the interests of transparency I consider it appropriate to make this letter public upon your receipt of it.

Let me emphasize at the outset that I appreciate fully that other departments and/or agencies may have persuaded you of the desirability of including section 4.82 in this legislation, as your staff have indicated to my Office.

Nevertheless, Bill C-55 is your bill, identified as presented to Parliament by the Minister of Transport. And section 4.82 is a proposed amendment to the Aeronautics Act, for which you have responsibility as Minister of Transport. Therefore it is my view that you, and only you, are the minister ultimately accountable on behalf of the government for the provision in question, and it is both necessary and appropriate that I direct my concerns in this matter to you.

As you know, I have stated repeatedly since September 11 that I would never seek, as Privacy Commissioner, to stand in the way of any appropriate initiatives to enhance public security against terrorism, even if they entail some limitation of privacy rights. I have also stated, however, that the burden of proof must always rest with those who propose some new limitation on a fundamental human right such as privacy.

To meet that burden of proof, I have suggested since September 11 - and the government has not disagreed with me - that any proposed new initiative that would limit or infringe on privacy rights must meet four key criteria: It must be demonstrably necessary to address a specific problem or need. It must be demonstrably likely to be effective in addressing that problem or need. The limitation of privacy rights must be proportional to the security benefit to be derived. And there must be no other, less privacy-invasive means to achieve the same objective.

It is against this background that I am writing to you today to respectfully request your immediate answers to questions that are necessary to assist me in understanding why you believe that section 4.82 meets the above-mentioned criteria. Since Bill C-55 is not emergency legislation, I trust that you have taken the time to obtain all pertinent information to weigh the appropriateness and necessity of the provisions in question prior to introducing the bill, and must have this information readily available.

As your responses to these questions will be very helpful to me in preparing my Committee testimony on this legislation, I would be grateful if you could provide them at the earliest possible time, and certainly by this Friday, May 10.

As I told you in our meeting and have since stated publicly, I would have no privacy objection if the provisions of section 4.82 were limited to screening passenger information against data bases of known and suspected terrorists, and if all information that did not produce a match against these data bases were to be immediately destroyed. The following questions, consequently, focus on provisions that go far beyond anti-terrorism measures.

Necessity

  • In general terms, what is the basis for your view that it is necessary for the RCMP to be granted the power to examine the personal information of airline passengers for purposes unrelated to anti-terrorism, including searching for individuals subject to outstanding warrants for any offence punishable by imprisonment for five years or more?
  • Since the stated purpose of Bill C-55 is "to enhance public safety," what incidents presenting a threat to public safety have been carried out in the past year on flights subject to the Aeronautics Act by individuals subject to outstanding warrants for offences punishable by imprisonment for five years or more?
  • In the past year, has there been an increase in the number or percentage of individuals sought on Canadian warrants for offences punishable by imprisonment for five years or more who have evaded capture for more than 30 days? If so, what are the pertinent statistics, and to what factors is this increase attributed?
  • What new factors have arisen since Bill C-42 was introduced on November 22, 2001 that now make it necessary for the RCMP to scan passenger information in search of individuals wanted on warrants for offences punishable by imprisonment for five years or more, when it was not necessary at that time?
  • What threats to public safety, and particularly aviation safety, do you believe are likely to be posed by individuals who are wanted on warrants for such offences as fraudulently altering brands on cattle, taking possession of drift timber or unauthorized use of a computer - all Criminal Code offences punishable by prison terms of five or more years?
  • In view of all the other investigative tools available to the RCMP and CSIS, including the new powers conferred under Bill C-36, why is it necessary to give CSIS and the RCMP open-ended authority to retain the personal information of unlimited numbers of law-abiding Canadian travellers in order to search for possible suspicious travel patterns?

Effectiveness

  • What research or analysis leads you to the view that a significant number of individuals who are wanted on warrants will travel by air rather than choose alternative modes of transportation, particularly on domestic routes, once it is publicly known that passenger information is to be screened by the RCMP for outstanding warrants?
  • In view of the relatively low level of identity authentication for domestic flights, what research or analysis leads you to the view that individuals who are wanted on outstanding warrants will travel on their own identities once it is known that passenger information is to be screened by the RCMP?
  • What statistical analysis has been done to estimate the number of law-abiding Canadian air travellers who are likely to be detained by police in error through this screening process, as the result of having a name similar to that of an individual who is wanted on an outstanding warrant?
  • Since travel patterns that appear suspicious in the absence of additional information may in reality be entirely innocent, what provisions will be made to clear unfounded suspicions by notifying individuals that their travel patterns have aroused CSIS or RCMP interest and providing the opportunity to clear their names? In view of the security exemptions limiting the right of individuals to obtain their personal information under the Privacy Act, will travellers be able to establish whether CSIS or the RCMP has opened a file on them due to travel patterns regarded as suspicious and, if so, will they be provided the opportunity to clear their name and have the file closed?

Proportionality and Available Alternatives

In this instance, the determination of proportionality and available alternatives depends largely on the answers to the questions about necessity and effectiveness. Depending on your responses to those questions, I may take the liberty of contacting you further to seek additional clarification as to proportionality and available alternatives.

As I briefly outlined to you when we met and as I detailed in my statement of May 1 (copy enclosed), I consider the measures proposed in section 4.82 to constitute a very significant change in the powers accorded to the police in Canadian society and therefore a very important limitation on privacy rights. I would therefore appreciate your response to the following general question: What considerations lead you to the view that this very serious limitation on privacy rights would be proportional to the benefits to be derived?

Because this issue is now so much in the public domain, I will feel obliged to make your response to this letter public. Alternatively, you are of course welcome to make your response public at the same time you provide it to me, if you prefer.

My previous conversations with you have given me a sense that you appreciate both the importance of the fundamental human right of privacy and your responsibility as a Minister to ensure that this right is never unduly infringed or limited by government policy. I am therefore hopeful that your responses to these questions will assist in putting your proposed section 4.82 into the appropriate perspective.

Yours sincerely,

George Radwanski
Privacy Commissioner of Canada.

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For more information, contact:

Anne-Marie Hayden
Media Relations
Office of the Privacy Commissioner of Canada
Tel.: (613) 995-0103
ahayden@priv.gc.ca
www.priv.gc.ca

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