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Ottawa, January 9, 2003 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Hon. Elinor Caplan, Minister of National Revenue, with a legal opinion from the Hon. Marc Lalonde, P.C., O.C., Q.C., former Minister of Justice of Canada, which is the third opinion from an eminent legal authority finding that the CCRA "Big Brother" database is contrary to the Canadian Charter of Rights and Freedoms.
Dear Minister Caplan:
I enclose, for your urgent attention, another independent legal opinion I have received with regard to the CCRA's "Big Brother" six-year database on the foreign travel activities of all law-abiding Canadians.
This opinion is from Hon. Marc Lalonde, P.C., O.C., Q.C., who is a former Minister of Justice of Canada.
In his opinion, Mr. Lalonde states:
"I have had the opportunity to review the relevant case law and doctrine and, subsequently, I have had the benefit of studying the opinions of the Hon. Gérard V. La Forest, C.C., Q.C. and of Mr. Roger Tassé, O.C. Q.C., which you provided me. Following this analysis, I am of the view that these opinions correctly reflect the state of the law in these matters and that the API/PNR initiative raises serious doubt as to its conformity with both sections 7 and 8 of the Charter... I believe that the constitutional validity of the API/PNR Initiative is doubtful. The unfocused nature of the governmental objectives as well as the lack of sufficient limits on the use or access to the API/PNR information makes it difficult to justify the intrusion on privacy rights that the Initiative entails."
You have now been presented with independent, objective legal opinions from a retired Justice of the Supreme Court of Canada who wrote many of the Court's most important decisions regarding privacy rights under the Canadian Charter of Rights and Freedoms, from a former federal Deputy Minister of Justice who was instrumental in drafting the Charter, and from a former Minister of Justice of Canada - all stating that your CCRA database clearly appears to be in contravention of the Charter.
Surely the time for stonewalling must now be past.
I draw your attention to a pertinent and illuminating example from Great Britain. In that country last year, my counterpart released a single legal opinion from a prominent British lawyer, stating that a government initiative regarding retention of and access to telephone and internet records appeared to be contrary to privacy law. The government withdrew the initiative, and a spokesperson for the Home Office said:
"Sometimes we have to admit that we got it a bit wrong, and (this time) we got it a bit wrong."
You and the Government have been presented with an unprecedented set of three opinions - from a former Justice of the Supreme Court, a former Justice Minister of Canada, and a former Deputy Minister of Justice of Canada - all stating that the CCRA database appears to be unlawful under our Constitution.
There can be no shame in recognizing, on this basis, that this initiative, however well-intentioned, is profoundly flawed and cannot stand. On the contrary, you would be demonstrating the most commendable respect for the privacy rights of all Canadians and for your responsibilities as a Minister by taking immediate steps to rectify this situation.
I wish to emphasize, yet again, that I have expressed no privacy objection to Customs officers having access to the API/PNR information of passengers on incoming flights for the purpose of identifying individuals for secondary inspection when they arrive in Canada, as provided under last year's amendments to the Customs Act. The legal opinions are also not about such immediate access and use.
What is unacceptable - and, I hope you will now recognize, unlawful - is the subsequent retention of this personal information about all law-abiding Canadians in a six-year database of dossiers that can be used for potentially almost limitless governmental purposes.
The CCRA's purported justification for this retention, in violation of the explicit written undertaking that was given to me when the Customs Act amendments were before Parliament, is the post-September 11 desirability of keeping this information for the "forensic" purpose of being able to identify accomplices or associates in the event of another terrorist act. If that is indeed the purpose, then I again urge you - as I have repeatedly urged you since the summer - to categorically limit this database to this specific, exceptional use and to exempt it from all the normal information-sharing provisions of the Customs Act.
I respectfully request, with the greatest possible urgency, that you take immediate action to rectify this matter.
Privacy Commissioner of Canada
c.c. The Right Honourable Jean Chrétien, P.C., M.P.
Prime Minister of Canada
The Honourable Martin Cauchon, P.C., M.P.
Minister of Justice and Attorney General of Canada
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