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Ottawa, December 18, 2002 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Hon. Elinor Caplan, Minister of National Revenue, with a copy to the Prime Minister, regarding Minister Caplan's attack on the Commissioner's position on CCRA's "Big Brother" database of Canadians' foreign travel patterns.
Dear Minister Caplan:
I am deeply disturbed by the article about the CCRA's "Big Brother" database of passenger information that appeared under your name in the Globe and Mail of Monday, December 16.
In this article, you have completely misrepresented my position on this important issue that affects the privacy rights of all Canadians, and then have used deceptive or misleading statements to deflect attention from the concerns that I am raising. I am at a loss as to how to interpret this, other than to fear that either you do not fully understand what your own Agency is doing or you do not want Canadians to understand it.
As Privacy Commissioner of Canada, I am an ombudsman. I do not have order-making powers. What I do have is the mandate and the duty to bring matters that affect privacy rights to the attention of Canadians, particularly when attempts to resolve these matters through persuasion behind the scenes have failed.
I have no difficulty whatsoever with ministers or other spokespersons for the Government responding publicly, however vigorously, to concerns that I raise. Frank and open public debate can only be beneficial. But Canadians are entitled to expect that ministers and officials will address the issues factually, substantively and without mischief.
In my view, your approach in this regard falls far short of acceptable standards, and not for the first time. In the article in question, which I shall address in detail, and in previous statements made by a spokesman on your behalf, you have attempted to undermine the credibility of an Officer of Parliament in the exercise of his duties by making statements that you knew, or should have known, to be incorrect and misleading.
First of all, your article frames the issue in terms of "advance passenger information." You state that there was a gap in "our knowledge of who was flying into Canada by commercial jetliner."
You go on to state: "With parliamentary approval, we fixed that gap. We now know who is landing at Pearson, Vancouver, Halifax or any other airport receiving international flights. Advance Passenger Information is just one way that Ottawa is protecting Canadians through the collection and analysis of flight information for all passengers entering the country."
You then, in effect, accuse me as Privacy Commissioner of seeking to undermine this protection of Canadians: "The Privacy Commissioner calls this an unwarranted intrusion into your privacy and has dismissed its use as an investigative technique. I say he is wrong."
This is a blatant misrepresentation. You must surely know that I have never objected in any way to giving customs officers of the CCRA full access to all airline information about passengers on incoming flights. This is a reasonable way to know who is, as you put it, "flying into Canada by commercial jetliner" and to identify those passengers who merit closer scrutiny or inspection on arrival. I have never criticized it, let alone called it "an unwarranted intrusion."
What I do object to, which is an entirely different matter, is the CCRA's decision to then keep all this detailed personal information about the foreign travel activities of all law-abiding Canadians in a massive database for six years, and to make it available for a wide range of governmental uses that have absolutely nothing to do with either the customs function or with anti-terrorism.
This is indeed an unwarranted intrusion. It is contrary to the explicit written undertaking that was made by CCRA to me as an Officer of Parliament, and hence through me to Parliament, when the relevant amendments to the Customs Act were before Parliament. It is, in the expert opinions of retired Supreme Court Justice Gérard La Forest and of former federal Deputy Minister of Justice Roger Tassé, contrary to the Canadian Charter of Rights and Freedoms. And it is very likely contrary to the Privacy Act as well.
Your article never once mentions this database - quite literally, the word "database" never even once appears - which treats every Canadian as a suspect and constitutes a massive, unprecedented and unjustified intrusion on the privacy rights of all Canadians. The government of Canada has no business compiling detailed dossiers of personal information on all citizens, obtained from third parties, just to have handy in case it ever becomes expedient to use it against us.
In failing entirely to address this issue - and in purporting instead that I oppose something far more benign to which I have never objected - your article is, in my view, profoundly inappropriate.
I now wish to address some of the other specific statements in your article that I find to be deceptive and/or misleading.
You state: "Advance passenger information is a major investigative tool. It put investigators hard on the trail of suspected killers and terrorists. Similar data collected at our land borders have helped rescue children, and thwarted armed criminals from entering."
This, again, refers to basic advance information about individuals at the time of entry. It has absolutely nothing to do with the massive database of detailed information about the past travel activities of all Canadians, to which I am objecting and which is only now being established.
You state: "Within weeks of collecting advance passenger information, Canadian customs agents seized $8 million worth of drugs and stopped 16 kilos of heroin from reaching our streets."
The CCRA has repeatedly cited this drug bust as part of its efforts to discredit my expressions of concern. But surely you must be able to understand, Minister Caplan, that while this seizure may have been assisted by the use of advance passenger information, it cannot possibly be attributable to the multi-year personal information database which was not in existence at the time.
You state: "By using advance passenger information, we can notify travellers if a contagious disease has arrived on board an airplane (a need we saw last year when a sick woman travelling to Hamilton, Ont. was thought to have ebola)."
In fact, my Office has spoken with Health Canada and the department has well-established procedures for dealing with this sort of situation - without a massive six-year governmental database of personal information. In the case to which you refer, the woman arrived in Canada on an Air Canada flight from the U.S. Following its standard procedure, Health Canada worked through Air Canada's medical director to obtain passenger manifests to determine who else was on the flight and where they sat. The International Civil Aviation Organization (ICAO) encourages airlines to keep passenger manifests for medical reasons for a maximum of six months - certainly not six years.
You state that by using "advance passenger information" - although in this case you actually appear to be referring to the long-term database - "we can identify pedophiles."
What you don't say is that this "identification" is to be accomplished through the extremely dangerous and inappropriate practice of seeking to draw conclusions about people on the basis of their travel activities. If someone takes a number of trips to a country such as Thailand where there is a considerable child-sex trade - maybe he likes the architecture, or the food, or the beaches, or he has friends there - he will risk being flagged as a possible pedophile, with who knows what consequences.
You state: "There will be no fishing expeditions using this data. After all, customs officers can collect the same information face-to-face when people arrive at our airports and borders."
That is, quite simply, untrue. The CCRA is accessing, and the database will contain, not only the relatively limited Advance Passenger Information (API) data to which you keep referring, but also the far more detailed Passenger Name Record (PNR) which is effectively all the information in an airline's possession.
This includes not only all the destinations to which we fly, but well in excess of 30 other personal data elements including with whom we travel, how long we stay at each location, how we paid for the tickets (potentially including credit card numbers), the contact telephone numbers we provide, whether we travel business class or economy, the airplane seats we choose, even any information we provide the airline about dietary requirements or health-related needs.
Surely you must know that customs officers cannot, and do not, routinely collect all this information in face-to-face encounters at airports. And, in any event, there is a great difference between information that is provided verbally in face-to-face encounters, and information that is stored electronically in long-term databases where it is readily available for cross-referencing, sharing, data matching and all manner of other manipulations.
Beyond all the specific misleading statements, what I find no less disturbing is the pervasive attempt throughout your article to manipulate public opinion through the use of emotive references that have nothing to do with the substantive issues that I have raised about the database: "suspected killers and terrorists". "armed criminals". "drug smugglers". "pedophiles". "rescue children".even ebola, for heaven's sake.
The clear implication is that anyone who opposes your database, as I am required to do in the exercise of my responsibilities, is indifferent to terrorism, murder and armed crime, drug smuggling, pedophilia, the plight of children, even plagues.
Your own spokesman, Derik Hodgson, has in the past explicitly said as much, in your name. In the Toronto Star of September 27, he accused me of a "rather cavalier attitude toward the war against terrorism" for raising concerns about this database. And in the Globe and Mail of October 2, Mr. Hodgson stated on your behalf, in reference to me: "For him to sneer at weapons of mass destruction - it leaves not a pleasant taste."
At the time, I communicated my concern about these tactics to the highest levels of government. One has to expect a considerable amount of criticism and controversy in a position such as mine, and I have no difficulty with that at all. But I believe it is essential in the public interest that when the government engages in debate about matters that affect fundamental human rights, it must do so in ways that clarify, rather than obscure, the important substantive issues.
I made the point then - and I repeat now - that Canadians are not well served by having a minister of the government resort to unfounded slurs to try to undermine their confidence in the credibility of an Officer of Parliament mandated to oversee and defend their privacy rights. I was subsequently told that this matter had been raised with you and appropriate steps had been taken to ensure that there would not be any repeat of these tactics.
Regrettably, your article this week indicates otherwise. This is deeply disturbing, particularly since it comes from a minister with responsibility for an Agency whose activities, by their very nature, can have enormous potential impact on the fundamental human rights of all Canadians.
I therefore urge you, once again, to abandon tactics of this nature and focus your attention instead on the substantive rights issues that are at play.
In our past discussions on this matter, I have recommended an approach that would enable the government to retain the passenger information in question solely for its purported anti-terrorism purposes, while isolating it from all other uses that are no more necessary or justifiable after September 11 than they were before. I would be glad to discuss such a solution further with you, at your earliest convenience.
Privacy Commissioner of Canada
c.c. The Right Honourable Jean Chrétien, P.C., M.P.
Prime Minister of Canada
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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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