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Letter from Solicitor General Lawrence MacAulay

May 16, 2002 - The Privacy Commissioner of Canada, George Radwanski, today received the following letter from Solicitor General Lawrence MacAulay. Mr. Radwanski finds this letter deeply misleading. He will respond in detail tomorrow.

May 15, 2002

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

Dear Mr. Radwanski:

The Honourable David Collenette, Minister of Transport, brought to my attention your correspondence of May 6 and 15, 2002, in which you expressed concerns with section 4.82 of Bill C-55, Public Safety Act 2002. I recognize that by virtue of your office your focus is on the privacy of individuals. However, I am sure that you will appreciate that, as Solicitor General of Canada and a member of the government, my responsibility is broader. My concern must encompass both the protection of privacy rights and the overall safety of the Canadian public.

In your correspondence, a series of assumptions are made which I feel I must address to ensure a fact-based dialogue on this important legislation:

  • 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.
  • You take issue with the fact that, as a result of the proposed measures, the RCMP could apprehend individuals for whom there are arrest warrants for serious crimes which carry a prison sentence of five years or longer. 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.
  • The RCMP and CSIS may not retain personal information of law-abiding Canadian travellers in order simply to look for suspicious travel patterns. All passenger information must be destroyed within seven days, unless it is reasonably required for the very restricted purposes of transportation security or addressing terrorist threats.
  • Since some terrorists do not have a criminal record and could be travelling under an alias or using forged documents, designated officers need to access all available intelligence to be able to identify persons who have the potential for violence, or ties to terrorist groups.

I share your concerns about transparency, accountability and privacy protection. That is why section 4.82 includes very strict safeguards related to the collection, retention and destruction of individual flight information. Specifically, I would point out the following:

  • Written records for all retentions and disclosures would have to be kept and made available for review by the Privacy Commissioner, the Commission for Public Complaints Against the RCMP, and in the case of CSIS, the Security Intelligence Review Committee.
  • In addition, the RCMP Commissioner and the Director of CSIS would have to ensure an annual review of retained information, ordering destruction where retention is no longer justified.

Finally, you posed a series of interesting questions which challenge the principles that underlie section 4.82. I would suggest that there are other important questions we must all ask ourselves in considering the need for Section 4.82:

  • 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 public safety?
  • If we could prevent a person attempting to take a kidnapped child out of Canada by air but do not do so, wouldn't it be difficult to justify our inaction?
  • If we had the means to identify a dangerous wanted criminal or terrorist from another country and apprehend him or her before they could harm Canadians or the citizens of another country, should we not make sure we use these tools?

In closing, section 4.82 addresses concerns raised by the public about the need to ensure safe air travel and protection from terrorism. Since the events of September 11th, Canadians live in a changed security environment, and expect the police to use all reasonable tools available to ensure their safety. Section 4.82 is designed to enable this to happen while balancing the privacy rights of Canadians.

I thank you for your frank expression of views on this important matter. You have raised several questions which would be most appropriately dealt with during Parliament's examination of the Bill. I welcome your on-going contribution to Parliament's review through the Committee process.

As you have proposed, in the interest of promoting an informed public discussion of this matter, I am releasing this letter publicly.


Lawrence MacAulay, P.C., M.P.

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