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Ottawa, November 22, 2002 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Honourable Elinor Caplan, Minister of National Revenue with legal opinions from retired Supreme Court Justice Hon. Gérard V. La Forest, C.C., Q.C. and from Mr. Roger Tassé, O.C., Q.C. which both find that the CCRA database is contrary to the Canadian Charter of Rights and Freedoms.
Dear Minister Caplan,
I enclose, for your urgent attention, two independent legal opinions I have received with regard to the CCRA's "Big Brother" six-year database on the foreign travel activities of all law-abiding Canadians.
One is from retired Supreme Court Justice Hon. Gérard V. La Forest, C.C., Q.C., who wrote many of the Supreme Court's most important decisions regarding privacy rights under the Canadian Charter of Rights and Freedoms. The other is from Mr. Roger Tassé, O.C., Q.C., who as Deputy Minister of Justice and Deputy Attorney General of Canada from 1977 to 1985 was instrumental in drafting the Canadian Charter of Rights and Freedoms.
Both conclude that your CCRA database is contrary to the Canadian Charter of Rights and Freedoms.
In his opinion, Mr. La Forest states: "While individuals may have a diminished expectation of privacy at border crossings, and customs-related searches may not generally require full compliance with the standards required in other circumstances, the seizure and long-term retention of API/PNR information is in my view deserving of some degree of protection for individual privacy. The CCRA's plan makes no provision for such protection. It would trench upon a reasonable expectation of privacy without either prior authorization or any measure of individualized suspicion. Government agencies would have access to detailed, travel-related information of millions of innocent Canadians. In my view this would violate section 8 of the Charter. In my opinion, the foregoing legal analysis establishes a strong case that the CCRA's plan violates section 8 of the Charter."
For his part, Mr. Tassé states: "Insofar as privacy is incorporated into the concept of liberty as found in section 7 of the Charter of Rights and Freedoms, and the API/PNR initiative is overbroad. we are of the opinion, based on our analysis of Supreme Court decisions relating to section 7 of the Charter of Rights and Freedoms, that there is a good case to conclude that the collection, use and disclosure of information pursuant to CCRA's API/PNR Initiative does infringe the rights and freedoms of Canadians guaranteed by section 7 of the Canadian Charter of Rights and Freedoms and that by reason of its overbreadth, the API/PNR Initiative cannot be demonstrably justified in a free and democratic society, pursuant to section 1 of the Canadian Charter of Rights and Freedoms."
I have made clear to you and to your most senior officials on numerous occasions my concern that the amassing of dossiers of personal information on all law-abiding Canadians, as is being done by your CCRA database, has no place in a free and democratic society like Canada. These concerns have been endorsed by seven provincial and territorial Information and Privacy Commissioners from across Canada, by the Canadian Civil Liberties Association, by rights groups from across Canada and by leading newspapers and national commentators across the country, among others.
Now you have it on the authority of two of Canada's most eminent legal and Charter experts that your "Big Brother" database is in violation of the Canadian Charter of Rights and Freedoms. I cannot imagine what more a reasonable person such as yourself can require to be persuaded that this database initiative is untenable and cannot stand.
I urge you once again, Minister Caplan, to reconsider your position and order an immediate end to this unprecedented intrusion on the fundamental privacy rights of all Canadians.
Privacy Commissioner of Canada
c.c. Rt. Hon. Jean Chrétien, Prime Minister of Canada
Hon. Martin Cauchon, Minister of Justice and Attorney General of Canada
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The two legal opinions are available, in their entirety, on the Privacy Commissioner's Web site at www.priv.gc.ca. Copies have also been made available through the Parliamentary Press Gallery.
For more information, please contact Anne-Marie Hayden, Media Relations, Office of the Privacy Commissioner of Canada, by phone at (613) 995-0103 or by e-mail at firstname.lastname@example.org.
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