Opinion by the Honourable Marc Lalonde, P.C., O.C., Q.C.

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January 9, 2003

Mr. George Radwanski
Privacy Commissioner
Office of the Privacy Commissioner of Canada
Place de Ville, 112, Kent Street, Suite 300
Ottawa, Ontario
K1A 1H3

Re: Opinion on the constitutional validity of the API/PNR Initiative of CCRA

Dear Mr. Radwanski,

You have asked me to provide a summary opinion on the constitutional validity of Canada Customs and Revenue Agency's (CCRA) Advanced Passenger Information/Personal Name Record Initiative (API/PNR Initiative) with regards the privacy rights protected by the Canadian Charter of Rights and Freedoms. In order to do so, 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. Although, as confirmed in Smith v. Canada (Attorney General) (2002) 210 D.L.R. (4th) 289 on which relies CCRA to support the validity of the Initiative, the Charter allows the collection of some information from airline passengers and the sharing of this information with other governmental agencies in certain cases, it does not follow that any data can be obtained and shared with any agencies in all cases.

It is quite clear from the decisions of the Supreme Court of Canada, and in particular, Hunter v. Southam [1984] 2 S.C.R. 145 and R. v. Plant [1993] 3 S.C.R. 281, that the legitimate interests of the State requiring the collection of personal information must be balanced with the fundamental right to privacy of all Canadians. Furthermore, as the information collected nears a certain type of "core" personal and "biographical" information, the necessity or usefulness of collecting this information must increase proportionally if it is to respect the Charter.

Although I do not believe that the API/PNR data would be directly considered by a tribunal to be such "core biographical" information, it would certainly be more inclusive and intrusive than the information collected in the E-311 form that was validated in Smith. Furthermore, the period during which such information is to be held, namely 6 years, is unprecedented as is the ability to disclose this information to anyone and in particular to a vast number of federal and provincial agencies.

Thus, considering the additional infringement on privacy rights that the API/PNR Initiative represents, it is not self-evident that the necessity or usefulness of collecting this information is sufficient to offset such a violation of a fundamental right. In fact, the broad nature of the Initiative is striking when one compares it to the measures imposed by the Public Safety Act, 2002, which nevertheless, regards matters of security.

Although the lack of judicial consideration of the validity of this particular type of database renders difficult any prediction as to the ultimate decisions that would be reached by the courts, 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.

Yours truly,

(Original signed by)

The Hon. Marc Lalonde, P.C., O.C., Q.C.

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