Opinion by Mr. Roger Tassé, O.C., Q.C.

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November 21, 2002

George Radwanski
Privacy Commissioner of Canada
112 Kent Street
Ottawa, Ontario
K1A 1H3

Dear Mr. Radwanski:

You have requested our opinion with respect to the collection, use and disclosure of personal information obtained by Canada Customs and Revenue Agency (CCRA) during the course of CCRA's Advanced Passenger Information (API)/Personal Name Record (PNR) Initiative. This opinion constitutes our analysis as to whether that Initiative may contravene the Canadian Charter of Rights and Freedoms.

THE ISSUE

The issue to be addressed, in particular, is whether the API/PNR Initiative of CCRA under the aegis of the Customs Act, as amended, is objectionable on constitutional grounds, because it contravenes the requirements of the Canadian Charter of Rights and Freedoms. The aspects of the API/PNR Initiative that call for particular attention include the breadth of the information collected, the period for which it is retained, and the disclosure of the information to a variety of different federal and provincial officials.

More specifically, we would state the issues in the form of two questions:

Does the collection, use and disclosure of information pursuant to Canada Customs and Revenue Agency's (CCRA) Advance Passenger Information (API)/Passenger Name Record (PNR) Initiative infringe or deny the rights and freedoms of Canadians guaranteed by section 7 of the Canadian Charter of Rights and Freedoms?

If yes, can the API/PNR Initiative be demonstrably justified in a free and democratic society, as a reasonable limit to the rights and freedoms guaranteed by section 7, pursuant to section 1 of the Canadian Charter of Rights and Freedoms?

OUR CONCLUSION

The Canadian Charter of Rights and Freedoms is intended to foster values recognized as important in Canadian society. These values include the dignity and autonomy of the individual in a free society - values that are balanced against the interests of the state in the administration of government and law enforcement. The actions of the state must be balanced and proportionate in order to limit the infringement of basic rights considered important to Canadians in the least intrusive manner possible. In light of this Charter requirement, and despite a judicial inclination to be deferential to the policy choices made by Parliament, state authority to require the submission of personal information is not absolute. The Charter, through its establishment of legal rights, permits Canadians, to a degree, to control their personal information, including the submission and use of that information to the state. The regime implemented in the form of CCRA's API/PNR Initiative raises serious questions as to whether it is proportional to the legitimate requirements of the state.

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, especially when compared to Bill C-17, the Public Safety Act, 2002, 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.

BACKGROUND

API/PNR Initiative

The Canada Customs and Revenue Agency (CCRA) has implemented an Advance Passenger Information (API)/Passenger Name Record (PNR) Initiative. This initiative was announced by CCRA in April 2000 as part of the Customs Action Plan. Effective October 7, 2002, the regime contemplated by this Initiative requires

(a) commercial carriers and charterers and their representatives, who undertake to carry persons or goods to Canada, and

(b) travel agents and owners and operators of a reservation system,

to provide the Minister of National Revenue with, or access to, specific information on all passengers and crewmembers en route to Canada.

The stated purpose associated with this Initiative is that of risk assessment:

"Obtaining passenger information in advance of the arrival of a commercial conveyance will provide customs officers with time to assess the risk of individual passengers in order to process large volumes of travellers more efficiently. This initiative will enable the CCRA to identify specific passengers to be referred for secondary Customs and/or Immigration examination. By obtaining or having access to the API/PNR data contained in the carrier's or agent's reservation system before the arrival of passengers, we will be able to focus our attention and efforts on the identification of passengers who pose a high risk."

Section 3 of the Passenger Information (Customs) Regulation prescribes the following information:

3. The following is, for the purposes of section 107.1 of the Act, the prescribed information in respect of a person on board a commercial conveyance:

(a) their surname, first name and any middle names;

(b) their date of birth;

(c) their gender;

(d) their citizenship or nationality;

(e) the type of travel document that identifies them, the name of the country in which the travel document was issued and the number on the travel document;

(f) their reservation record locator number, if any, and, in the case of a person in charge of the commercial conveyance or any other crew member without a reservation record locator number, notification of their status as a crew member;
and

(g) the information relating to the person in a reservation system.

Pursuant to section 4 of the Regulation, the information described in paragraphs 3(a) to (f) are to be provided in the form of a manifest at the time of departure. With respect to the information described in 3(g), either the information is to be provided or access to the reservation system holding such information is to be permitted.

While this regime currently applies to air travel, the regulation contemplates that it will be extended to other modes of entry into Canada:

8. For all other modes of transportation (except air mode), the date on which the Minister will require the API data and the related information contained in the carrier's or agent's reservation system be provided, in accordance with the proposed regulations, will be announced in a subsequent customs notice.

Authority for this regulation is derived from amendments made to the Customs Act, R.S. 1985, c. 1 (2nd Supp.), as amended, in 2001, specifically s. 107.1 of that Act:

107.1 (1) The Minister may, under prescribed circumstances and conditions, require any prescribed person or prescribed class of persons to provide, or provide access to, prescribed information about any person on board a conveyance in advance of the arrival of the conveyance in Canada or within a reasonable time after that arrival.

(2) Any person who is required under subsection (1) to provide, or provide access to, prescribed information shall do so despite any restriction under the Aeronautics Act on the disclosure of such information.

Section 107.1 was added to the Customs Act by section 61 of An Act to amend the Customs Act and to make related amendments to other Acts (S-23), which received Royal Assent on October 25, 2001, now Chapter 25 of the Statutes of Canada, 2001.

With authority to collect such API/PNR information established, it is appropriate to note under what circumstances such Customs information, including API/PNR information, may be used and disclosed. Section 107(3) of the Customs Act provides authority to disclosure:

(3) An official may use customs information for the purposes of administering or enforcing this Act, the Customs Tariff, the Special Imports Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act or for any purpose set out in subsection (4), (5) or (7).

"Official" and "customs information" are defined in s. 107(1) as:

"official" means a person who

(a) is or was employed in the service of Her Majesty in right of Canada or of a province;

(b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or

(c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province.

"customs information" means information of any kind and in any form that

(a) relates to one or more persons and is obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff; or

(b) is prepared from information described in paragraph (a).

Subsections (4), (5) and (7) describe an extensive series of situations where disclosure may take place:

(4) An official may provide, allow to be provided or provide access to customs information if the information

(a) will be used solely in or to prepare for criminal proceedings commenced under an Act of Parliament;

(b) will be used solely in or to prepare for any legal proceedings relating to the administration or enforcement of an international agreement relating to trade, this Act, the Customs Tariff, the Special Import Measures Act, any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, before

  1. a court of record, including a court of record in a jurisdiction outside Canada,
  2. an international organization, or
  3. a dispute settlement panel or an appellate body created under an international agreement relating to trade;

(c) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Canada Pension Plan, the Customs Tariff, the Employment Insurance Act, the Excise Act, the Excise Tax Act, the Export and Import Permits Act, the Income Tax Act, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act by an official of the Agency;

(d) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Excise Act or the Export and Import Permits Act by a member of the Royal Canadian Mounted Police;

(e) may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual or to the environment in Canada or any other country;

(f) will be used solely for a purpose relating to the supervision, evaluation or discipline of a specified person by Her Majesty in right of Canada in respect of a period during which the person was employed or engaged by, or occupied a position of responsibility in the service of, Her Majesty in right of Canada to administer or enforce this Act, the Customs Tariff, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to the extent that the information is relevant for that purpose;

(g) is reasonably regarded by the official to be information that does not directly or indirectly identify any person; or

(h) is reasonably regarded by the official to be information relating to the national security or defence of Canada.

Subsection 5 provides a further list of individuals to whom customs information may be provided which includes agents of the Crown involved in the investigation of offences or the enforcement of various statutes, as well as individuals enforcing provincial statutes. The subsection further permits disclosure to prescribed individuals for prescribed purposes under prescribed conditions:

(5) An official may provide, allow to be provided or provide access to customs information to the following persons:

(a) a peace officer having jurisdiction to investigate an alleged offence under any Act of Parliament or of the legislature of a province subject to prosecution by indictment, the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged offence may be taken, if that official believes on reasonable grounds that the information relates to the alleged offence and will be used in the investigation or prosecution of the alleged offence, solely for those purposes;

(b) a person that is otherwise legally entitled to the information by reason of an Act of Parliament, solely for the purposes for which that person is entitled to the information;

(c) an official solely for the purposes of developing, administering or enforcing an Act of Parliament or developing or implementing a policy related to an Act of Parliament if the information relates to

  1. goods, the importation, exportation or in-transit movement of which is or may be prohibited, controlled or regulated under that Act,
  2. a person who that official has reasonable grounds to believe may have committed an offence under that Act in respect of goods imported or exported by that person, or
  3. goods that may be evidence of an offence under that Act;

(d) an official, solely for the purpose of administering or enforcing an Act of the legislature of a province, if the information relates to goods that are subject to import, in-transit or export controls or taxation upon importation into the province under that Act;

(e) an official of a participating province, as defined in subsection 123(1) of the Excise Tax Act, or an official of the province of Quebec, if the information relates to the administration or enforcement of Part IX of that Act in that province, solely for that purpose;

(f) an official solely for the purpose of the formulation or evaluation of fiscal or trade policy or the development of a remission order under an Act of Parliament;

(g) an official solely for the purpose of setting off, against any sum of money that may be due to or payable by Her Majesty in right of Canada, a debt due to

  1. Her Majesty in right of Canada, or
  2. Her Majesty in right of a province on account of taxes payable to the province if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province;

(h) counsel, as defined in subsection 84(4) of the Special Import Measures Act, in accordance with subsection 84(3) of that Act and subject to subsection 84(3.1) of that Act, except that the word "information" in those subsections is to be read as a reference to the words "customs information";

(i) an official of the Department of Human Resources Development solely for the purpose of administering or enforcing the Employment Insurance Act, if the information relates to the movement of people into and out of Canada;

(j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration and Refugee Protection Act, if the information relates to the movement of people into and out of Canada;

(k) an official of the Financial Transactions and Reports Analysis Centre of Canada solely for the purpose of administering or enforcing the Proceeds of Crime (Money Laundering) and Terrorist Financing Act;

(l) a person solely for the purpose of determining any entitlement, liability or obligation of the person under this Act or the Customs Tariff including the person's entitlement to any refund, relief, drawback or abatement under those Acts;

(m) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record in Canada;

(n) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record outside of Canada, solely for the purposes of criminal proceedings; and

(o) prescribed persons or classes of persons, in prescribed circumstances for prescribed purposes, solely for those purposes.

Subsection (7) requires notice in writing to the Privacy Commissioner where information under subsection (6) is disclosed "before its provision if reasonably practicable or, in any other case, without delay after the provision." The Privacy Commissioner may notify the individual to whom the information relates of the provision of the information. Subsection (6) authorizes disclosure to any person, in addition to the disclosure permitted by subsection (5), if, in the Minister's opinion, the public interest in doing so clearly outweighs any invasion of privacy, material financial loss or prejudice to competitive position or where disclosure would clearly benefit the individual concerned.

The resulting information regime is one where CCRA may collect API/PNR data, which then becomes "customs information" and subsequently subject to disclosure to such individuals for such purposes and under such terms and conditions established by CCRA as authorized by s. 107 of the Customs Act. In a Factsheet issued in October 2002 and posted to the CCRA web site1, CCRA has confirmed this to a certain extent:

CCRA customs enforcement data is currently kept for 6 years. This standard has been agreed to by the U.S. under the Smart Border Action Plan.

The use of API/PNR data is covered under Section 107 of the Customs Act. More specifically, Section 107 authorizes the release of customs information to other agencies and departments for specified public policy purposes. The Supreme Court of Canada ruled in 2001 in Smith v Canada that this practice is both acceptable and appropriate.2

Information may be disclosed to other agencies for purposes such as:

  • Fighting terrorism and preventing terrorist attacks
  • Helping law enforcement agencies track pedophiles
  • Preventing money laundering; and
  • Protecting the health and safety of Canadians

Of particular interest for the purposes of this opinion is the fact that, while the Customs Act is silent on the matter of retention, the information regime for the collection, use and disclosure of API/PNR information contemplated by CCRA has a six-year time frame.

The Proposed Public Safety Act, 2002

In reviewing the legislative framework for the collection, use and disclosure of API/PNR information by CCRA, it is useful to compare that regime with the one contemplated by Bill C-17 recently introduced into Parliament in October 2002. Part 1 of the proposed Public Safety Act, 2002 also addresses the subject of the collection of API/PNR data, specifically s. 5 which replaces sections 4.7 and 4.8 of the Aeronautics Act R.S.C. 1985, c. A-2., as amended. The replacement section 4.81 - to be inserted into the Aeronautics Act - concerns the provision of information.

4.81 (1) The Minister, or any officer of the Department of Transport authorized by the Minister for the purposes of this section, may, for the purposes of transportation security, require any air carrier or operator of an aviation reservation system to provide the Minister or officer, as the case may be, within the time and in the manner specified by the Minister or officer, with information set out in the schedule

(a) that is in the air carrier's or operator's control concerning the persons on board or expected to be on board an aircraft for any flight specified by the Minister or officer if the Minister or officer is of the opinion that there is an immediate threat to that flight; or

(b) that is in the air carrier's or operator's control, or that comes into their control within 30 days after the requirement is imposed on them, concerning any particular person specified by the Minister or officer.

(2) Information provided under subsection (1) may be disclosed by persons in the Department of Transport to other persons in that department only for the purposes of transportation security.

(3) Information provided under subsection (1) may be disclosed to persons outside the Department of Transport only for the purposes of transportation security, and it may be disclosed only to

(a) the Minister of Citizenship and Immigration;

(b) the Minister of National Revenue;

(c) the chief executive officer of the Canadian Air Transport Security Authority; and

(d) a person designated under subsection 4.82(2) or (3).

Section 23 of Bill C-17 adds a schedule to the Aeronautics Act which contains a list of 34 information items, substantially similar to those found in CCRA's Passenger Information (Customs) Regulation (section 3) but more specific and slightly more limited in scope:

1. The person's surname, first name and initial or initials

2. The person's date of birth

3. The person's citizenship or nationality or, if not known, the country that issued the travel documents for the person's flight

4. The person's gender

5. The number of the person's passport and, if applicable, the number of the person's visa or residency document

6. The date on which the person's passenger name record was created

7. If applicable, a notation that the person arrived at the departure gate with a ticket but without a reservation for the flight

8. If applicable, the names of the travel agency and travel agent that made the person's travel arrangements

9. The date on which the ticket for the person's flight was issued

10. If applicable, a notation that the person exchanged their ticket for the flight

11. The date, if any, by which the person's ticket for the flight had to be paid for to avoid cancellation of the reservation or the date, if any, on which the request for a reservation was activated by the air carrier or person who operates the aviation reservation system

12. The number assigned to the person's ticket for the flight

13. If applicable, a notation that the person's ticket for the flight is a one-way ticket

14. If applicable, a notation that the person's ticket for the flight is valid for one year and is issued for travel between specified points with no dates or flight numbers assigned

15. The city or country in which the travel included in the person's passenger name record begins

16. The itinerary cities, being all points where the person will embark or disembark

17. The name of the operator of the aircraft on which the person is on board or expected to be on board

18. The names of the operators of aircraft over whose air routes all other segments of air travel included in the person's passenger name record are undertaken, including, for each segment, the name of any operator of aircraft other than the operator that issued the ticket 19. The code of the operator of the aircraft and the identification number for the person's flight

20. The person's destination

21. The travel date for the person's flight

22. Any seat assignment on the person's flight that was selected for the person before departure

23. The number of pieces of baggage checked by the person to be carried in the aircraft's cargo compartment on the flight

24. The tag numbers for the person's baggage

25. The class of service in respect of the person's flight

26. Any stated seat request in respect of the person's flight

27. The person's passenger name record number

28. The phone numbers of the person and, if applicable, the phone number of the travel agency that made the person's travel arrangements

29. The person's address and, if applicable, the address of the travel agency that made the travel arrangements

30. The manner in which the person's ticket was paid for

31. If applicable, a notation that the person's ticket was paid for by another person

32. If applicable, a notation that there are gaps in the itinerary included in the person's passenger name record that necessitate travel by an undetermined method

33. Routing information in respect of the travel included in the person's passenger name record, being the departure and arrival points, codes of the operators of the aircraft, stops and surface segments

34. If applicable, a notation that the person's ticket is in electronic form and stored electronically in an aviation reservation system

Subsequent subsections in s.4.81, through delegation, identify the recipients of API/PNR information as Immigration officials, customs and tax officials within CCRA, officials of the Canadian Air Transport Security Authority, RCMP personnel and CSIS personnel but only for the purposes of transportation security.

Section 4.82 goes into further detail as to disclosure to RCMP, CSIS and other personnel designated by the Commissioner of the RCMP and the Director of CSIS and subsections 4.82(7)-(12) authorize disclosures in a number of limited number of circumstances to identified individuals.

With respect to Immigration, CCRA and Transport personnel, subsections 4.81(6), (7) and (8) deal with the destruction of API/PNR information:

(6) Subject to subsections (5), (7) and (8), information provided to the Minister or an officer of the Department of Transport under subsections (1) and (2) or disclosed to the Minister under subsection 4.82(8) must be destroyed within seven days after it is provided or disclosed under that subsection.

(7) Information disclosed under subsection (3) to a person referred to in any of paragraphs (3)(a) to (c) must be destroyed within seven days after it is disclosed under that subsection.

(8) Information disclosed under subsection (3) to a person referred to in any of paragraphs (3)(a) to (c) that is further disclosed under subsection (4) must be destroyed within seven days after it was disclosed under subsection (3).

Finally, subsection (9) of Bill C-17's amendment of s. 4.81 is also noteworthy:

(9) Subsections (6) to (8) apply despite any other Act of Parliament.

Subsections (6) to (8) would thus appear to apply despite the provisions of the Customs Act relating to API/PNR information.

ANALYSIS

Implications of API/PNR Data Collection

Four aspects of CCRA's API/PNR Initiative under the Customs Act merit attention:

a) The scale of collection;

b) The breadth of information collected;

c) The period for which it is held; and

d) The ability to disclose that information to a variety of different federal and provincial organizations.

The nature of API/PNR data to be submitted to CCRA pursuant to its Regulation may at first blush not appear significant in and of itself. People do not ordinarily associate airline administrative information (e.g. seat number, airline ticket number, etc.) with the concept of "personal information" as that term is commonly understood and used by Canadians. However, there are a number of aspects of the collection of API/PNR information that warrant further consideration.

The first aspect is the fact that the contents of the PNR sought extend beyond travel information into the area of "biographical data" consisting of sensitive personal information.3 The European Union's Article 29 Working Party on Data Protection has issued a recent report on the subject of transferring API/PNR information to the United States.4 In that report the Working Party notes, in terms equally applicable to the PNR data of individual Canadians, that:

"[PNR data].may include not only journeys completed in the past but also religious or ethnic information (choice of meal etc.), affiliation to any particular group, data relating to the place of residence or means of contacting an individual (e-mail address, details of a friend, place of work etc.), medical data (any medical assistance required, oxygen, problems relating to sight, hearing or mobility or any other problem which must be made known to ensure a satisfactory flight) and other data linked, for example, with frequent flyer programmes (Frequent Fliers number)."

A degree of personal information one might not normally think of revealing to an airline or a travel agent can be gleaned from the "raw data". Given the analysis that may be produced, especially insofar as it is proposed that the data be held for six years, it is not beyond the realm of possibility that one could easily assemble the air travel patterns of a particular individual or the travel history of an individual over that time frame. Indeed, one anti-terrorism investigative technique is to trace the activities of known terrorists in order to identify unknown associates. The individual data elements may be viewed as inconsequential but collectively they permit the creation of individual travel profiles.

A second aspect is the comprehensiveness of the collection. API/PNR information is collected on all individuals traveling to Canada, including all Canadian citizens. There is no suggestion that only the data on "high-risk" individuals (as that term is used by CCRA) will be retained nor is there a justification for the retention of data on all Canadians beyond a period one might reasonably assume appropriate.

If the purpose of collection is efficient Customs or Immigration administration at Canada's ports of entry or to assure transportation security, a reasonable person may not object to the collection, use and disclosure of API/PNR information for such purposes. However, retention of such information for a long period of time would seem unrelated to the stated Customs and Immigration purposes and more akin to intelligence gathering for law enforcement/national security (public safety) purposes.

Note in that regard that Bill C-17, which also deals with API/PNR information, would establish a much stricter list of purposes for which the information could be used and provide a much shorter period for the retention of the data (generally 7 days).

It is important to emphasize that it is not the use of the information per se that raises a concern to the extent that it is for the enforcement of a law of Canada or the investigation of a lawful investigation. The concern arises from the "large scale" collection of information from individuals who are not and are unlikely ever to be under investigation as well as its retention and disclosure for the general and broad purposes found in the Customs Act.

The ability to create a massive databank for the purpose of comprehensive travel profiles, to retain the information for a significant period of time and to disclose to a variety of organizations - given that it falls within the definition of "customs information" for which CCRA is authorized to disclose - constitutes a degree of surveillance that raises a question as to whether the regime created by CCRA in furtherance of its API/PNR Initiative and the statutory authority for that Initiative, specifically section 107.1 of the Customs Act and the Passenger Information (Customs) Regulation, infringe the rights and freedoms of Canadians under the Canadian Charter of Rights and Freedoms.

Judicial Concept of Personal Information in Canada

The Supreme Court's description of privacy can be found in R. v. Duarte, [1990] 1 S.C.R. 30 at 46, where Mr. Justice La Forest described it as

".the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself."

Mr. Justice Sopinka in R. v. Plant, [1993] 3 S.C.R. 281 refined this definition to focus on a "biographical core" of personal information. Plant concerned a "grow house" - marihuana being grown in a house. The police prepared an information to obtain a search warrant which included the tip received, the observations made during a perimeter search and the results of an electricity bill comparison.  On the basis of this information, a search warrant was issued and executed. The accused was arrested and convicted of unlawful cultivation of marihuana and possession of marihuana for the purposes of trafficking.  The appeal heard by the Supreme Court was to determine whether the warrantless perimeter search, the police check of computerized electrical records or the search under warrant violated s. 8 of the Canadian Charter of Rights and Freedoms.

While in the context of s. 8, Mr. Justice Sopinka did state at page 293:

"The United States Supreme Court has limited application of the Fourth Amendment (the right against unreasonable search and seizure) protection afforded by the United States Constitution to situations in which the information sought by state authorities is personal and confidential in nature:  United States v. Miller, 425 U.S. 435 (1976).  That case determined that the accused's cheques, subpoenaed for evidence from a commercial bank, were not subject to Fourth Amendment protection.  While I do not wish to be taken as adopting the position that commercial records such as cancelled cheques are not subject to s. 8 protection, I do agree with that aspect of the Miller decision which would suggest that in order for constitutional protection to be extended, the information seized must be of a "personal and confidential" nature.  In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.  This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.  The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant's life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence." [Emphasis added]

If one were to juxtapose the notion of "biographical data" referred to by Mr. Justice Sopinka with the information and/or inferences to be gleaned from the PNR file that CCRA requires access to, one can reasonably conclude that CCRA is not just seeking airline administrative information but information that the Supreme Court has determined to be worthy of constitutional protection.

Canadian Charter of Rights and Freedoms: Section 7 and Privacy

The broader question posed by CCRA's API/PNR Initiative is whether Canadians may be subject to wholesale surveillance while living in a society that purports to offer a right to liberty and security. A supplementary question is whether the enactment of section 107.1 of the Customs Act and the coming into force of the Passenger Information (Customs) Regulation constitute a deprivation of liberty or security in a manner consistent with principles of fundamental justice. The larger, simpler question may, perhaps, be stated as to how far and how may the state intrude on the right of Canadians to a fundamental degree of privacy.

The focus of the analysis in this section of our opinion is whether section 7 of the Canadian Charter of Rights and Freedoms protects the privacy interests of Canadians against state action that (a) conflicts with the notion of fundamental justice as found in section 7 and (b) whether the impugned state action does constitute a reasonable limit that can be demonstrably justified in a free and democratic society.

The right to privacy has clearly been identified as being present in s. 8 of the Charter. However, there is case law that supports the view that it is also found within s. 7.

The first of the Legal Rights, section 7, reads as follows:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Consideration of s. 7 involves a two stage analysis as set out by Mr. Justice La Forest in R. v. Beare, [1988] 2 S.C.R. 387, at p. 401, as follows:

"To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that the deprivation is contrary to the principles of fundamental justice."

Sopinka J. articulated a slightly different version of the analysis in Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519 at 584, 588-90:

"Section 7 involves two stages of analysis.  The first is as to the values at stake with respect to the individual.  The second is concerned with possible limitations of those values when considered in conformity with fundamental justice.  "

Mr. Justice Sopinka went on to state:

"On the one hand, the Court must be conscious of its proper role in the constitutional make-up of our form of democratic government and not seek to make fundamental changes to long-standing policy on the basis of general constitutional principles and its own view of the wisdom of legislation.  On the other hand, the Court has not only the power but the duty to deal with this question if it appears that the Charter has been violated.  The power to review legislation to determine whether it conforms to the Charter extends to not only procedural matters but also substantive issues.  "

The analysis, therefore, can be described as having two elements:

  • Does the phrase "life, liberty or security of the person" as found in section 7 include the notion of privacy?
  • If yes, does the CCRA API/PNR Initiative contravene the principles of fundamental justice?

Initially viewed as pertaining to freedom from physical restraint, the concept of "liberty" in s. 7 has been broadened over the years since the enactment of the Charter and is not confined to a criminal context: see New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 and Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307. Privacy has been recognized as one element of liberty.

In the case of R. v. O'Connor, [1995] 4 S.C.R. 411, the accused was charged with a number of sexual offences and defence counsel had obtained a pre-trial order requiring the Crown to disclose the complainants' entire medical, counseling and school records and the complainants to authorize production of such records. The non-disclosure of certain information resulted in a stay of proceedings and an appeal that eventually had the Supreme Court of Canada consider issues pertaining to non-disclosure by the Crown and procedures to be followed when an accused seeks production of documents such as medical or therapeutic records that triggers concerns as to the privacy of the complainant. In this decision, the court's views on privacy in the context of liberty were articulated.

Madame Justice L'Heureux, with the concurrence of Justices La Forest, Gonthier and McLachlin, stated:

"This Court has on many occasions recognized the great value of privacy in our society. It has expressed sympathy for the proposition that s. 7 of the Charter includes a right to privacy: Beare, supra, at p. 412; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at p. 369, per La Forest J. On numerous other occasions, it has spoken of privacy in terms of s. 8 of the Charter: see, e.g., Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417. On still other occasions, it has underlined the importance of privacy in the common law: McInerney v. MacDonald, [1992] 2 S.C.R. 138, at pp. 148-49; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

On no occasion has the relationship between "liberty", "security of the person", and essential human dignity been more carefully canvassed by this Court than in the reasons of Wilson J. in R. v. Morgentaler, [1988] 1 S.C.R. 30.  In her judgment, she notes that the Charter and the right to individual liberty guaranteed therein are tied inextricably to the concept of human dignity.  She urges that both "liberty" and "security of the person" are capable of a broad range of meaning and that a purposive interpretation of the Charter requires that the right to liberty contained in s. 7 be read to "guarantee[] to every individual a degree of personal autonomy over important decisions intimately affecting their private lives" (p. 171).  Concurring on this point with the majority, she notes, as well, that 'security of the person' is sufficiently broad to include protection for the psychological integrity of the individual..

Respect for individual privacy is an essential component of what it means to be "free".  As a corollary, the infringement of this right undeniably impinges upon an individual's "liberty" in our free and democratic society.

The essence of privacy, however, is that once invaded, it can seldom be regained.  For this reason, it is all the more important for reasonable expectations of privacy to be protected at the point of disclosure.  As La Forest J. observed in Dyment, supra, at p. 430:

...if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. "[Emphasis in last sentence added.]

In the same way that our constitution generally requires that a search be premised upon a pre-authorization which is of a nature and manner that is proportionate to the reasonable expectation of privacy at issue (Hunter, supra; Thomson Newspapers, supra), s. 7 of the Charter requires a reasonable system of "pre-authorization" to justify court-sanctioned intrusions into the private records of witnesses in legal proceedings. Although it may appear trite to say so, I underline that when a private document or record is revealed and the reasonable expectation of privacy therein is thereby displaced, the invasion is not with respect to the particular document or record in question. Rather, it is an invasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society.

It is to be noted that the other five justices in the O'Connor case acknowledged that privacy was a constitutional right but were silent as to its source: Peter W. Hogg, Constitutional Law of Canada, 3rd edition loose-leaf, vol. 2, footnote 34, at 44-40.

In addition to the comment in the earlier case of R. v. Dyment, [1988] 2 S.C.R. 417, referred to above by Madame Justice L'Heureux-Dubé, Mr. Justice La Forest articulated in that case some basic principles with respect to privacy, liberty and Canadian society.

The facts in Dyment concerned a situation where a doctor had taken a blood sample from emergency patient without his consent or knowledge for medical purposes. The sample was later given to a police officer. The blood sample secured a conviction of impaired driving and the issue before the Court was whether the taking of blood sample by police amounted to an unreasonable seizure under s. 8 of the Charter.

Mr. Justice LaForest stated at pp. 426-428:

"From the earliest stage of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.  The function of the Charter, in the words of the present Chief Justice, then Dickson J., in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155 "is to provide ... for the unremitting protection of individual rights and liberties".  It is a purposive document and must be so construed.  That case dealt specifically with s. 8.  It underlined that a major, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is the protection of the privacy of the individual; see especially pp. 159-60.  And that right, like other Charter rights, must be interpreted in a broad and liberal manner so as to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments.  Its spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times [Emphasis added].

Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual.  For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order.  The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state."

The Federal Court of Appeal, in Ruby v. Canada [2000] 3 F.C.589 heard an appeal from a decision that section 51 of Privacy Act, was not unconstitutional. In 1988 the Royal Canadian Mounted Police (RCMP) refused to disclose to the appellant all information about him in personal information Bank 005 on the ground that the records were exempt from disclosure under Privacy Act, subparagraph 22(1)(a)(ii), which grants discretion to refuse to disclose personal information where it has been obtained by an investigative body in the course of a lawful investigation, and section 27, which confers such discretion where the information is subject to solicitor-client privilege. Your office upheld the RCMP's refusal - a decision with which the Court of Appeal agreed. One argument made by the applicant was that s. 51 of the Privacy Act violated s. 7 of the Charter.

The Court of Appeal held that the mandatory provisions of section 51 of the Act dealing with in camera and ex parte proceedings did not engage the liberty interests envisaged by section 7 of the Charter. Section 51 is merely a procedural provision aimed at preventing the accidental disclosure of national security information or foreign confidences and is tied to a process which, at the end of the day, simply requires disclosure of all personal information to a judge for the purpose of assessing whether the exemptions being claimed by the head of a government institution are justified. By providing, in limited situations, that an ex parte and in camera hearing will be held with respect to a refusal to disclose, the court found that one cannot reasonably maintain that such a procedural safeguard "deprives" an applicant of his liberty interest.

However, in discussing s. 51 in the context of s. 7 of the Charter, Mr. Justices Létourneau and Robertson said:

"Section 51 of the Act is to be contrasted with sections 19 to 28 inclusive which either prohibit disclosure of personal information or grant a discretion to refuse disclosure of such, notwithstanding the general right of access provided for in section 12 of the Act. Arguably, those restrictive provisions do engage section 7 of the Charter in the sense that they constitute a deprivation of the right to control the dissemination of accurate and properly obtained information by the state. But even if section 7 were engaged by those provisions it would be necessary to show that the deprivation fails to accord with the principles of fundamental justice and, correlatively, whether the right of both the Privacy Commissioner and the Federal Court to review information in order to assess the validity of exemptions claimed by the head of a government institution accords with those unstated principles. For purposes of deciding this appeal, however, what is important to note is that the mandatory nature of section 51 in respect of ex parte and in camera proceedings does not detract from the right of access provided for under section 12 of the Act. By contrast, the collection, use and dissemination of personal information is what triggers the right to privacy and section 7 of the Charter. Section 51 is only a procedural provision for determining whether an exemption from disclosure has been validly claimed. The deprivation, if it exists, lies elsewhere in the Act. Those provisions, however, are not in issue." [Emphasis added] (par. 172, at pp. 665-666).5

 

It is clear from these decisions that the courts in Canada have integrated privacy rights as part of the concept of liberty in s. 7. Insofar as the CCRA API/PNR Initiative collects, uses and discloses personal information and consequently triggers the question whether the right to privacy has been contravened, the second part of the two-step analysis articulated in Rodriguez, requires consideration as to whether the CCRA API/PNR Initiative contravenes the principles of fundamental justice.

Fundamental Justice and Section 7

In Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519, at pp. 592-593, Mr. Justice Sopinka articulated the analysis for a determination as to whether there has been a breach of fundamental justice:

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