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Ottawa, May 17, 2002 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Honourable Lawrence MacAulay, the Solicitor General of Canada, on the subject of Bill C-55:
Dear Minister MacAulay:
Thank you for your letter to me of May 15, with regard to my concerns about section 4.82 of Bill C-55.
Of course, since Bill C-55 is legislation presented by the Minister of Transport, Hon. David Collenette, and since section 4.82 is a proposed amendment to the Aeronautics Act which falls squarely under the jurisdiction of the Minister of Transport, any principle of ministerial accountability familiar to me requires that it be the Minister of Transport who is solely responsible for explaining and justifying his legislation.
"In the interest of promoting an informed public discussion," as you put it in your letter, I nevertheless appreciate your taking the trouble to participate in the dialogue. But an "informed public dialogue" requires that the Canadian public not be misled, however unintentionally, by a Minister of the Crown. Regrettably, your letter contains a number of highly misleading statements, half-truths and assumptions.
Please allow me to address some of them in turn.
First, you state that by virtue of my office as Privacy Commissioner, my "focus is on the privacy of individuals," while your "concern must encompass both the protection of privacy rights and the overall safety of the Canadian public." This is a false dichotomy. It is simply wrong to try to discredit the role of the Privacy Commissioner of Canada by suggesting that any Officer of Parliament occupying this office would seek to put privacy rights ahead of public safety.
On the contrary, you should be aware that I have stated publicly and repeatedly since September 11 that I do not regard privacy as an absolute right, and that I would never try to stand in the way of reasonable and necessary measures to enhance security and public safety, even if they required some limitation of privacy rights.
You state: "Section 4.82 does not alter, in any way, the existing arrest authority of the police. You suggest that law-abiding air travellers could be detained by the police. This is simply not the case."
This statement is either misleading, or an admission that the provisions in question appear quite pointless and should be deleted.
Subsection (4) of section 4.82 specifies that one of the purposes of giving the RCMP access to all airline passenger information is "the identification of persons for whom a warrant has been issued." Subsection (11) provides that an RCMP officer scrutinizing passenger information may disclose it "to any peace officer" if the RCMP scrutineer "has reason to believe that information would assist in the execution of a warrant."
Common sense dictates that if the police believe that a given airline passenger is wanted on a warrant, the "execution of a warrant" would only be assisted if the individual is intercepted before boarding or on arrival. If the police are simply going to allow individuals who are suspected of being a person wanted on a warrant to disappear into the crowd and go on their merry way, this provision would appear to be totally pointless.
On the contrary, however, your own Parliamentary Secretary, Mr. Lynn Myers, stated in the House of Commons on May 2: " As is currently the case, before any arrest for an outstanding warrant the police would have to positively identify the person named in that warrant."
That's precisely my point: If passenger information leads the police to a traveller with the same name as an individual wanted on a warrant, the police would be likely to detain that person in order to "positively identify" whether he or she is indeed the fugitive. And since the level of identity authentication required to board an aircraft for a domestic flight is relatively low, logic suggests that significant numbers of law-abiding travellers with names similar to those of wanted persons could in fact be detained by police.
With regard to empowering the RCMP under section 4.82 to search passenger information for individuals wanted on warrants for offences which carry a prison sentence of five years or longer, you state: "Let us be clear that warrants of this nature are issued for serious and often violent offenders whose crimes may include murder, kidnapping and armed robbery. These passengers, by virtue of their fugitive status, could pose a threat to aircraft security."
Let us indeed be clear: These histrionics are deeply misleading. Warrants of this nature - for offences punishable by imprisonment for five years or longer - are in fact issued for more than 150 Criminal Code offences, including many such decidedly non-violent ones as fraudulently altering brands on cattle, taking possession of drift timber, unauthorized use of a computer, or municipal corruption.
I am sure Canadians would be interested to learn from you the last time cattle rustlers, or bribe-taking municipal councillors, have tried to seize control of a Canadian aircraft. More seriously, I am not aware of any significant number of instances - if any at all - where even wanted murderers, kidnappers or armed robbers have taken actions aboard an aircraft that posed a threat to security. If we were to start giving the police major new privacy-invasive powers based merely on what "could" happen rather than on what does happen or is reasonably likely to happen, we truly would be well on the way to becoming a police state.
You state: "The RCMP and CSIS may not retain personal information of law-abiding Canadian travellers in order to simply look for suspicious travel patterns."
In fact, on April 19, senior officials of your department briefed me in general terms about the possibility of inserting the provisions that are now in section 4.82 into the legislation. They specifically stated, in front of myself and six senior members of my staff, that the key reason for needing to retain the information of some passengers beyond seven days would be "suspicious travel patterns."
The purposes for retaining passenger information that are set out in subsection (14) are transportation security or "investigation of 'threats to the security of Canada'." Within this very broad scope, it certainly makes sense that, as your own officials explained, the RCMP and/or CSIS would want to retain information if they thought it showed any suspicious patterns. The difficulty, of course, is that what appears suspicious to outsiders might in fact be entirely innocent, but travellers would likely have no opportunity to clear their names.
That is why I have recommended enhancing oversight over the use of this provision. Recognizing the importance of public safety, I have not called for its deletion.
You ask: "If, in analyzing the data received from airlines to identify potential terrorists, CSIS and the RCMP identify an individual wanted for murder, a sexual offence or kidnapping, wouldn't Canadians expect us to take action in the interest of publicly safety?"
This is deeply disingenuous. What is at issue here is not the rare, incidental discovery of a wanted criminal while screening for terrorists. One of the stated purposes of obtaining passenger information from airlines under subsection (4) is "the identification of persons for whom a warrant has been issued." To search for terrorists, the RCMP and CSIS should be screening against data bases of known and suspected terrorists. They have no business fishing through passenger lists for people wanted for more than 150 offences - again, not merely murder, sexual offences, kidnapping or armed robbery, as you persist in repeating.
Finally, you state: "Since the events of September 11th, Canadians live in a changed security environment, and expect the police to use all reasonable tools to ensure their safety."
I must say, Mr. MacAulay, that nothing in your letter disappoints me more than your invocation of September 11 to justify new police powers that have nothing to do with anti-terrorism. We do indeed live in a changed security environment since September 11 - with regard to necessary and justified security measures against terrorism. But to use public fears of terrorism as an excuse to expand the powers of the state and erode fundamental human rights for reasons that have nothing to do with anti-terrorism would, quite frankly, be inexcusable.
I am deeply disturbed, therefore, to see you invoking September 11 in this way to justify blending anti-terrorism security measures and entirely unrelated law-enforcement initiatives. To take advantage of public fears, rather than to help set these fears into perspective while ensuring that Canadian rights and Canadian values remain paramount, would be unworthy of the Solicitor General of Canada.
Privacy Commissioner of Canada
c.c. Hon. David Collenette, P.C., M.P.
Minister of Transport
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