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37th PARLIAMENT, 2nd SESSION

Legislative Committee on Bill C-17

EVIDENCE

CONTENTS

Thursday, February 6, 2003

0905

The Chair (Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.))

Mr. George Radwanski (Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada)

0910

0915

The Chair

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance)

Mr. George Radwanski

Mr. Gary Lunn

Mr. George Radwanski

Mr. Gary Lunn

0920

The Chair

Mr. Steve Mahoney (Mississauga West, Lib.)

Mr. George Radwanski

Mr. Steve Mahoney

Mr. George Radwanski

Mr. Steve Mahoney

Mr. George Radwanski

Mr. Steve Mahoney

Mr. George Radwanski

The Chair

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ)

0925

Mr. George Radwanski

Mr. Mario Laframboise

Mr. George Radwanski

Mr. Mario Laframboise

Mr. George Radwanski

Mr. Mario Laframboise

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

0930

Mr. George Radwanski

Mrs. Marlene Jennings

Mr. George Radwanski

Mrs. Marlene Jennings

Mr. George Radwanski

Mrs. Marlene Jennings

Mr. George Radwanski

Mrs. Marlene Jennings

Mr. George Radwanski

Mrs. Marlene Jennings

Mr. George Radwanski

The Chair

Mrs. Bev Desjarlais (Churchill, NDP)

0935

Mr. George Radwanski

Mrs. Bev Desjarlais

Mr. George Radwanski

Mrs. Bev Desjarlais

Mr. George Radwanski

The Chair

Mr. Steve Mahoney

0940

Mr. George Radwanski

Mr. Steve Mahoney

Mr. George Radwanski

Mr. Steve Mahoney

Mr. George Radwanski

Mr. Steve Mahoney

The Chair

Mr. George Radwanski

Mr. Steve Mahoney

Mr. George Radwanski

0945

The Chair

Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance)

Mr. George Radwanski

Mrs. Diane Ablonczy

0950

Mr. George Radwanski

The Chair

Mr. Marcel Proulx (Hull—Aylmer, Lib.)

Mr. George Radwanski

Mr. Marcel Proulx

Mr. George Radwanski

Mr. Marcel Proulx

The Chair

Mr. Marcel Proulx

Mr. George Radwanski

The Chair

0955

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.)

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

The Chair

Mr. George Radwanski

The Chair

Mr. John Reid (Information Commissioner of Canada, Office of the Information Commissioner of Canada)

1010

1015

The Chair

Mr. Hassan Yussuff (Secretary-Treasurer, Canadian Labour Congress)

1020

1025

The Chair

1030

Mrs. Diane Ablonczy

Mr. John Reid

Mrs. Diane Ablonczy

Mr. John Reid

Mrs. Diane Ablonczy

Mr. John Reid

The Chair

Mr. John Bryden

1035

Mr. John Reid

Mr. J. Alan Leadbeater (Deputy Information Commissioner of Canada, Office of the Information Commissioner of Canada)

Mr. John Bryden

Mr. John Reid

Mr. John Bryden

Mr. John Reid

Mr. John Bryden

Mr. John Reid

Mr. John Bryden

Mr. John Reid

Mr. John Bryden

Mr. John Reid

Mr. John Bryden

Mr. John Reid

Mr. John Bryden

Mr. John Reid

The Chair

Mr. Mario Laframboise

Mr. John Reid

Mr. Mario Laframboise

1040

Mr. John Reid

Mr. Mario Laframboise

Mr. Hassan Yussuff

Mr. Mario Laframboise

The Chair

Mr. Steve Mahoney

1045

Mr. John Reid

Mr. J. Alan Leadbeater

The Chair

Mr. Hassan Yussuff

1050

The Chair

Mrs. Bev Desjarlais

The Chair

Mrs. Bev Desjarlais

Mr. John Reid

Mrs. Bev Desjarlais

Mr. John Reid

Mrs. Bev Desjarlais

The Chair

CANADA

Legislative Committee on Bill C-17

NUMBER 008

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 6, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.)): Colleagues, we call to order our legislative committee on Bill C-17.

Good morning to everyone, and a special welcome to our witness this morning, Mr. Radwanski, the Privacy Commissioner of Canada.

Mr. Radwanski, perhaps you would begin with a ten-minute presentation, and we'll follow with rounds of five minutes of questions.

The floor is yours, sir.

Mr. George Radwanski (Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada): Thank you very much.

I very much appreciate this opportunity to meet with you this morning. I really have only one privacy concern in this bill that I want to raise with you. It's a large bill with a great many facets, but there's only one privacy issue I want to raise with you.

It is in fact, of the various concerns you have heard and will hear as a committee, probably the easiest to fix, because it has absolutely no bearing whatsoever on either transportation security or national security against terrorism, which of course are the objects of this bill. And yet, it is also a concern that is crucially important because of the precedents the provision in question would set and the doors it would open, which are of grave concern from a privacy point of view.

I want to emphasize, in addressing this issue, as I emphasized in my annual report, which was made public last week, that since September 11, I have not once objected to a single actual anti-terrorism measure. I regard it as of course unthinkable that, as Privacy Commissioner, I would for a moment seek to stand in the way of any measures that are genuinely and legitimately necessary to protect Canadians against terrorism. I have not done so and I would not do so.

But the provision in question, as I say, is not related to anti-terrorism or transportation security. Rather, it's something slipped into this bill that really is quite unrelated to its purposes. What I'm referring to are the aspects of proposed section 4.82 of the bill, and specifically proposed subsection 4.82 (11), which empowers RCMP officers examining passenger data, even on flights entirely within Canada, to notify local authorities or take appropriate steps to effect an arrest if they happen to identify anyone who is wanted on a warrant for any of a wide number of Criminal Code offences completely unrelated to either terrorism or transportation security.

My difficulty with this, let me stress, has nothing to do with trying to protect criminals, and in fact sorting out this provision would in no way protect criminals. The difficulty, rather, is that it opens the door for the first time in a completely inappropriate, and in this instance unnecessary, way to mandatory self-identification to the state, to the police, for general law enforcement purposes.

As I'm sure you know, in Canada we are not required to identify ourselves to the police as we go about our normal law-abiding business. Unless we are being either arrested or carrying out a licensed activity such as driving, we are not even required to carry ID, let alone to identify ourselves to the police.

When we fly these days, that's the exception. Even on a domestic flight of course you're required to provide your name and to show photo ID. When that information is made available to the police, as it will be to the RCMP under proposed section 4.82, the effect is exactly the same as if we were required to notify the police every time we travel so they can check whether we are wanted for any of a number of Criminal Code offences.

Now, as long as that's limited to anti-terrorism in this instance, to looking at whether a known or suspected terrorist is aboard a flight, I do not object from a privacy perspective. I question whether it will be particularly useful because, as September 11 showed, individuals who commit terrorist acts are not necessarily known beforehand as terrorists, and people who are likely to be known as terrorists probably won't travel under their own identities. But if it's even a little bit helpful against terrorism, I do not object.

But when you expand it to looking for people wanted on offences that have nothing to do with terrorism or with aviation security, it's opening a very dangerous door. If we can in effect be forced to identify ourselves to the police so they can check if we're wanted on a warrant for any number of offences when we board an airplane, why stop at air transportation? Once that door is open, once that principle is accepted, why not have the same thing when you take a train, a bus, when you rent a car?

¿ (0910)

If that kind of self-identification is acceptable, then the principle at least would permit the police to stop us on the street to check if we're wanted for something, or to pull over cars and check the ID of anybody in the car just to see if they're wanted for any Criminal Code offence.

Now, I know you were told, as was I when I raised this concern, that, well, it's of course for anti-terrorism and transportation security, but if we accidentally or incidentally find out that a terribly dangerous criminal, a wanted criminal, is on the flight, Canadians would expect us to be able to do what's necessary to effect an arrest.

Yes, of course, but that's a red herring. I have an opinion that I will share with you, that my office will distribute before we're through, from Morris Manning, one of Canada's leading criminal and constitutional lawyers, who confirms what anyone who's a lawyer here will certainly know, which is that police officers, the RCMP as peace officers, have both a statutory and a common law right and duty to do what's necessary to effect an arrest if it comes to their attention that there's someone wanted on a nationwide warrant for a serious offence.

So you don't need this provision to give them permission, provided it is indeed incidental. If the purpose of this is in fact to go fishing regularly in a database, looking for people wanted on warrants, then you have a very different situation, and in fact that raises the additional question that if the police compare passenger information with the general police database, CPIC, which is full of all kinds of things, including information on people wanted on warrants, then there's nothing incidental about it.

They should be looking, if they're looking for transportation security and anti-terrorist matches, in a very different database, which is called SCIS, the Secure Criminal Investigation System. If they look for matches with that system they will only be identifying people wanted on matters pertaining to security.

If they look in the other base, one can't claim it's incidental if they look in CPIC. Looking in CPIC and incidentally finding people wanted on a whole range of Criminal Code warrants is the same as dropping your fishing line in the pond that's stocked with trout and incidentally pulling out a trout. There's nothing incidental about it.

The final point I want to make is that apart from the intrusion on the fundamental privacy right of anonymity for general law enforcement purposes, this also creates a real risk of unfairness to individuals. The level of self-identification for flying on an aircraft, certainly on a domestic route, is still relatively low. You have to provide your name and a photo ID.

Now, if you have a name like George Radwanski, you're relatively lucky if this goes forward, because how many of us are there in the country? But take a more common name; just for fun, we chose one at random, Paul Martin. We looked in Canada 411, and there are 269 listings in that alone for Paul Martin. Many other names are even much more common than that.

If you have a relatively common name and there happens to be a warrant out for someone with a similar name, given the relatively low level of authentication you run an excellent chance of being detained, and led off the plane in handcuffs, until you can establish that you're not that individual, which of course would lead to arguments that we need more detailed identification. If we had an identity card I'm sure Mr. Coderre would say then that wouldn't be a problem. It just leads into a whole new set of issues that are completely unnecessary.

I'll wrap up on this point by simply urging you to make the simple fix of dropping proposed subsection 4.82(11) and proposed paragraph 4.82(1)(a), which includes the definition of warrant, because they have no pertinence to the purpose of this legislation. If the government feels at some point that we should be introducing mandatory self-identification to the police for general law enforcement purposes, then surely this is a debate that should be carried out on its own merits in regular criminal justice legislation, and not slipped into a bill that really is aimed at anti-terrorist security.

Thank you very much for your kind attention.

¿ (0915)

The Chair: Thank you very much, Mr. Radwanski.

Mr. Lunn, please.

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): Thank you very much, Mr. Chair.

I have two questions. The first is specifically related to your first question, the proposed subsection 4.82(11) that empowers the RCMP officers when they examine this data, to basically, without any reasonable probable grounds, stumble across a warrant and then pass it on to local law authorities.

Number one, do you think that violates the charter? I think there are going to be some questions there.

And then, going on to a new area, I want to ask about the PNR, the passenger name record, that the airlines keep. I'm not quite sure where, but under the former bill S-23, which is the Customs Act, I believe they have a similar provision where they can collect this PNR data, and they actually can retain it for six years. In this bill it's only seven or eight days, but I believe your office also has some legal opinions that also suggest that this provision violates sections 7 and 8 of the charter.

Are we going too far? Are we infringing on the rights of individuals? Is this absolutely necessary in the war on terrorism? I'd like your thoughts on those two areas.

Mr. George Radwanski: I'll answer the second question first. The answer broadly speaking is, yes, we are going too far on a variety of fronts and that was the thrust of my annual report, which I tabled last Wednesday. I want to emphasize, though, and there's been quite a bit of confusion about this, that although both the CCRA-Customs Act situation and these provisions of Bill C-17 deal with airline passenger information, they are two totally separate issues from a rights point of view.

The issue with the CCRA, which of course is not before this committee, is that they were originally supposed to be obtaining this information solely for facilitating identifying people at customs for secondary inspection and were not supposed to keep it at all, and now have decided to keep, and are in the process of keeping, all the information, detailed information, on everybody's travels for six years in a database that will be available for a whole range of purposes unrelated to a customs mandate or any mandate that CCRA has. That's one issue.

So the issue here is not retention. The issue here is a legitimate use of this information at the time it's collected.

Mr. Gary Lunn: If I may interrupt you for one quick second, could it not be retention? Could they not under this act turn it over? Because basically they can turn it over to any authority. Could they not turn it over to CCRA, and then they have it for six years?

Mr. George Radwanski: It's possible. They're not supposed to be keeping it at all, the way this is set up in theory. However, I must admit that I've seen some disturbing instances, notably the CCRA one where what one is told will happen at the time legislation is before Parliament and what does happen is different. But this basically states that, except in a few isolated instances that must be documented, and reviewed annually, and so forth, the information is not to be retained, and there is no provision, at least ostensibly, for simply passing it on to another body such as CCRA to retain it.

To answer the last part of your question on the charter, I don't know that the charter would be engaged on this. The question is whether it's a reasonable law to shoehorn in to this provision. Now, obviously, if the right thing from my perspective is not done, if this passes as it is, I will have to investigate other considerations, but at this point I'm simply urging this committee to fix what is a very easy fix by dropping these provisions, which do nothing for the purpose of the bill.

Mr. Gary Lunn: Thank you.

¿ (0920)

The Chair: Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thank you, Mr. Chair.

Mr. Radwanski, I believe I heard you correctly when you said we're not required to carry ID in this country, but surely when we're driving a vehicle we're required to have our driver's licence, because if you're pulled over and you don't have it, I believe there's a fine that goes with it. Many of us may have had that happen to us in the past--not that I have.

I also believe that once you're pulled over and you give them the driver's licence, the officer goes back to the car, at which time he checks the database to determine whether or not you have any outstanding tickets, or perhaps even more than that, any outstanding warrants. That exists now. So I'm a little puzzled by your statement.

The other aspect of it is that it was my experience as--and some might find this hard to believe--a teenager in a place called Yorkville in Toronto, when there were demonstrations on a regular basis against anything we could think of, the police would invariably ask us for identification and if we had any money on us, and if we didn't they could charge us with loitering.

That was a reality as well. I always had ID and a little of money, but many of my friends didn't and they were charged subsequently as well. So this already exists in our world.

Mr. George Radwanski: With respect, not exactly.

First of all, what I said was that unless we are carrying out a licensed activity, such as driving, we are not required to carry ID. Obviously, if you are carrying out a licensed activity, then you need the document that proves that you're in fact licensed to carry it out, whether it's driving, or hunting, or whatever it may be.

Mr. Steve Mahoney: And they subsequently check to see if there are any outstanding warrants.

Mr. George Radwanski: That's my answer on the first point you raised.

On the second, bear in mind that the police have to have a reasonable cause to have stopped you in the first place. They can't simply pull you over to check if you're wanted for anything. And that's the distinction I am making, that flying in this country is not yet, thank God, a licensed activity if you're a passenger. And you can't be pulled over, hypothetically speaking, on suspicion of something just by virtue of being a passenger. So the analogy is not correct.

As for your example, sir, first of all, vagrancy laws have been changed since those days, and secondly, the police did not have a right in those days to ask for identification.

Mr. Steve Mahoney: Well, I wish I had known that then. I would have had a great defence.

Some hon. members: Oh, oh!

Mr. George Radwanski: That's the joy of having a Privacy Commissioner.

Mr. Steve Mahoney: I have two things to say on the comment you made with regard to it being a fishing expedition. First of all, proposed subsection 4.82(11) states that if the “designated person”--the officer--“has reason to believe that the information would assist in the execution of a warrant”; and in your view, is there a way that the words “has reason to believe” could be tightened up to enhance the protection of privacy? In other words, if they had “substantial” reason to believe, or something to that effect.

If you go back to proposed paragraphs 4.82(5)(a) and (b), the other aspect of this is that it must be a “flight specified by the person”, in (a). By the way, proposed subsection 4.82(4) is for the RCMP, and proposed subsection 4.82(5) is for CSIS. So they must specify the flight number, as opposed to casting a line in a trout pond. Or, in proposed paragraph 4.82(5)(b), they must specify a particular person by name, as opposed to casting a line in a trout pond.

Does this not resolve some of your concerns?

Mr. George Radwanski: I certainly wish it did.

First of all, my issue with proposed subsection 4.82(11) is not with the words “reason to believe”, but with “warrant”, because warrants simply have no pertinence to the purpose and goal of this legislation. If it were a warrant related to national security or aviation security, I wouldn't have a problem, but simply having a warrant specified by regulation, as defined earlier, for a huge list of completely unrelated offences is the issue. And, of course, if they look and CCRA can see you're wanted on a warrant, they have “reason to believe”. So that's not the issue.

With regard to specifying flights, it is not my understanding that the intention of this is only to obtain this information pertaining to a very few flights. I mean, specified flights may be all the flights flying that day, or every day. My understanding is that the purpose of this is basically to be able to carry out this kind of match—certainly over time—with regard to every flight, as the CCRA is doing with regard to the information it gets.

The Chair: Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you, Mr. Chairman.

Let us be clear on one thing, Mr. Radwanski. I hung on your every word since the start of deliberations on Bill C-17 and during deliberations on other bills. You are the security valve with regard to the protection of the public's rights. There is a good reason why you are called the Privacy Commissioner. It is what distinguishes a free society from a police state.

It is not true that there is a pressing urgency for this bill. The events of September 11 happened two years ago and since then it has been clear the Liberal Party and the bureaucrats would like Canada to become even more of a police state. Please do not give up, because paragraph 4.82(11) is unacceptable.

You also made recommendations with regard to paragraph 4.82(14). You said that should information be collected, it should be sent to you. The Canadian Bar Association, which appeared before the committee, supports your recommendation. This is what it said:

With regard to the conservation of passenger information, we approve the recommendation made by the Privacy Commissioner, who said that he should receive copies of any files created under paragraph 4.82(14).

I did not hear you talk about this recommendation. Have you given up on it? Please do not, because the Liberals and the bureaucrats want a police state. You are there to defend the interests of all citizens, all Quebeckers and all Canadians. I just want to hear you confirm that you intend to keep up the fight for your initial recommendations.

¿ (0925)

Mr. George Radwanski: No, I have not changed my recommendations. For now, it is more a question of priorities. I would like all of my recommendations to be followed, but if there is one thing which is very dangerous, it is the issue I raised this morning. I only had 10 minutes to give my presentation and I hope that the other recommendations will also be accepted.

Mr. Mario Laframboise: So you are sticking with all your recommendations.

Mr. George Radwanski: Yes, of course.

Mr. Mario Laframboise: I feel reassured. As for the power of making an interim order, which would be given to certain departments under the bill, I think your representations fell on deaf ears. Under the bill, when a department, such as the Department of Health, wants to impose an interim order, it is exempted from sections 3, 5 and 11 of the Statutory Instruments Act, which is the filter for the Canadian Charter of Rights and Freedoms. For instance, the Health Department could force an entire population to be vaccinated and decree that children in school and patients in hospitals must be vaccinated. What is more, people would not have the right to object, because this order would not have to pass the test of the Canadian Charter of Rights and Freedoms. Did you analyze this situation or did you concentrate on privacy issues?

Mr. George Radwanski: I can only answer questions pertaining directly to privacy. Of course, there are other things in the bill that affect human rights and freedoms in one way or another, but they are not part of my mandate.

Mr. Mario Laframboise: Thank you very much.

[English]

The Chair: Madam Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Merci.

Thank you very much for your presentation. I have three questions.

On the issue of proposed subsection 4.82(11), you think it should be deleted because police officers and members of the RCMP under statutory law and common law have all the authority they require right now to apprehend, or to execute a warrant.

If there were a pre-existing judicial order for access to any information that was collected under proposed section 4.81, would you have a problem if the police officer had access to that information?

¿ (0930)

Mr. George Radwanski: If you are drawing a distinction between a judicial order pertaining to a specific circumstance versus treating every Canadian as a suspect, that's a completely different matter. But then again, you don't need this provision touching on warrants.

Mrs. Marlene Jennings: No, I understand that. I'm just asking, if there's a pre-existing judicial order--which may be in order to execute a warrant--but if the officer has gone before a judge, has been able to establish to the satisfaction of the judge that they have reasonable grounds to believe that this person for whom a warrant exists may be travelling....

Mr. George Radwanski: It's a completely different matter. That, in fact, is what often happens now, as I understand it--a completely different matter.

I'm not objecting to the existing operations of Canadian law. I'm objecting from a privacy point of view to adding something that on the face of it is redundant, but that nevertheless sets very dangerous precedents and opens doors that should not and don't need to be opened.

Mrs. Marlene Jennings: I understand that. Thank you.

So if the provision, the proposed subsection, were to be amended to state “warrants that are directly related to terrorist activity”, etc., you wouldn't have a problem with that?

Mr. George Radwanski: No.

Mrs. Marlene Jennings: And with regard to a warrant for any other crime, if there's a pre-existing judicial order allowing access to the information, obviously you don't have a problem.

Secondly, I've read this several times, and I have to date not been able to find any punitive provisions for non-compliance, in terms of the seven-day destruction rule. Do you have any concerns? Have you found anything in this legislation that says if the information is not destroyed after seven days, here's what happens to you?

Mr. George Radwanski: No. There is no such specific provision.

Now, in fairness, in most laws of this kind, there isn't. They would be clearly in violation of the legislation. I hope it never becomes fully relevant, but there is a Criminal Code provision that generally makes it a criminal offence to violate any law of Canada. I don't have the exact citation in my memory. That would apply to many things, including even the Privacy Act. Certainly anyone who did not comply with this, as with other provisions, would be violating a law of Canada.

Mrs. Marlene Jennings: Okay. You just answered my other question on whether there were any other provisions in other legislation. You stated there was something in the Criminal Code.

On my last point, the RCMP has governance bodies that oversee it and ensure it fulfills its mandate with respect to and in compliance with its legislation, etc. Correct me if I'm wrong, but I would assume that those oversight bodies would have the authority, when they're doing their audit or oversight, to determine whether or not the RCMP, for instance, has complied with those sections of Bill C-17 that come under their authority.

Mr. George Radwanski: If you're referring to retention, that would certainly be correct, and I, of course, would have the right to oversee that as well. They'd have no legislative right to retain, so we'd have a different set of issues. But if you're referring to the provision that concerns me about the warrants, if it's in the law it's in the law. An oversight body can only ensure that they comply with the law. It doesn't change the fact that we're putting in something that should not be in this legislation.

Mrs. Marlene Jennings: I wasn't referring to the warrant. I was referring to compliance or not.

Mr. George Radwanski: Oh, no, there are oversight mechanisms for that.

The Chair: Thank you very much, Ms. Jennings.

Ms. Desjarlais, please.

Mrs. Bev Desjarlais (Churchill, NDP): Thank you.

I want to thank you for your information this morning. I've had the opportunity to hear your comments through Transport before, as well.

If I can fit this in under the scope of privacy, I'd just like to get your comments on the requirement for the landed immigrant card they now must carry, and the fact that on their application they must indicate where they've travelled for the last five years.

Would that information--I'll make it fit the bill, Steve--when they go on an airline then be related to the police, or to whatever other agency the information would be transferred?

¿ (0935)

Mr. George Radwanski: Look, you're putting me on the spot. I didn't come here today mentally prepared to address that issue. I did not object to the landed immigrant card per se when it was introduced. In fact, we were assured it would not have to be used or produced for any purposes other than was the case with the IMM 1000 form. So from that point of view I had no concern.

I did have a concern that this not open the door to a nationwide ID card for everybody, and we do see that problem starting to rear its head. But on the specific issue you're raising about what additional information is required to be provided, I frankly haven't been briefed to get into that today. But I'd be happy to pursue it at another time.

Mrs. Bev Desjarlais: Okay.

Mr. Mahoney suggested that pretty much everybody carries ID. In your experience as Privacy Commissioner, would you say that everybody carries ID, or for some reason has to carry ID?

Mr. George Radwanski: I'm sure there are many people who don't, but that really isn't the central issue in this instance anyway. Whether we carry ID or not, most of us have something on our person that would identify us one way or another. But the central point is that we are not required to produce it for the police or to identify ourselves to the police unless we are carrying out a licensed activity so they can check whether we are in fact licensed, or unless we are actually being placed under arrest.

That's completely different from the circumstance that would obtain here, where you have de facto mandatory self-identification to the police by virtue of the fact that you have to identify yourself to the airline. Then the airline is required to share this information with the police; and then the police in turn get to use it to see if you're wanted for any of a range of things. And if you once go there....

If that principle is acceptable, that you have to identify yourself to the police so they can see if you're of interest to the state for general law enforcement, then there's no reason, given the tendency of governments everywhere to argue by analogy when they want to bring in yet another intrusion, why it would be limited to air travel.

Mrs. Bev Desjarlais: Okay. Just to make it absolutely clear, if you're licensed to drive a vehicle there might be rules in place that say you have to carry your licence with you, but if you're the passenger in the vehicle there's no requirement that you have to carry identification.

Mr. George Radwanski: Precisely, and the police can't even stop the vehicle, as I said earlier, unless they have a reasonable cause to do so. The difference with this is that everyone is treated as a suspect and everyone is forced to identify themselves to the police. I'm accepting it from a privacy point of view for the exceptional purpose of anti-terrorism.

But there's a huge concern about this and other government initiatives when September 11 is used as an excuse for intrusions that have nothing to do with anti-terrorism or protection against terrorism but are rather used to bootleg in general privacy-intrusive measures under the guise of anti-terrorism.

The Chair: Mr. Mahoney.

Mr. Steve Mahoney: Thanks, Mr. Chairman.

Mr. Radwanski, I just want to go back to the issue you referred to as a red herring. Now, I and other people in the government have said this. Suppose that in the process of carrying out due diligence under proposed subsections 4.82(4) and (5), which I referred to earlier, and having asked for information on a specific flight or on a specific person, either CSIS or the RCMP were to discover that on that aircraft there was someone incidental to their inquiry who was wanted for murder, kidnapping, or a crime that would lead to five years' imprisonment. If those crimes were specified in the regulations so it would not be a warrant for virtually anything, so to speak, most Canadians would expect that this information would be shared with the appropriate authorities to enforce the warrant on that wanted person.

You've said that's a red herring, but if we don't have this ability, what do we as parliamentarians say to the people we represent when that person who is wanted for that serious crime is simply allowed to walk off in the name of privacy?

¿ (0940)

Mr. George Radwanski: But, no, let me be absolutely clear that this does not arise. This is the point I'm trying to make. If the police become aware, without this provision, without anything, that there is an individual wanted on a warrant, they don't need this provision. They have a common law and a legislative right and duty as peace officers to take the appropriate measures to apprehend the individual, period. So there's no issue of that.

If you drop this provision tomorrow, and that's what the government is trying to obscure, it will not create a circumstance where if the RCMP becomes aware there is murderer on a plane, they can't arrest him.

Where there could be a problem is if it were not incidental, if in fact a practice were made of looking in CPIC and checking everyone to see if they were wanted for something when the police had no business looking in CPIC because they should have been looking in the anti-terrorism database, SCIS, for example. If it's systematic, then they could be encountering issues where they are using legislation meant to protect aviation security for purposes of looking for people wanted on warrants totally unrelated.

Let me be clear. You speak of crimes punishable by imprisonment of more than five years, but in the Criminal Code that includes changing the brands on cattle, it includes misappropriating driftwood--

Mr. Steve Mahoney: Now, those are red herrings. Those have been addressed, and they will be addressed specifically by naming the crimes. They will not include branding, and they will not include gathering of driftwood.

Mr. George Radwanski: It says at this time in the draft regulations that we shall include procuring, which is hardly a threat to aviation. They include forgery and a great many things that certainly can't be related to threats to safety on a plane.

Mr. Steve Mahoney: So if we properly address the issue of the crimes and the nature of those crimes by definition, we can probably resolve them.

Mr. George Radwanski: No, sir. We can address it by not having the issue of warrants.

Mr. Steve Mahoney: Your claim that this is not needed because in essence it already exists somewhat puzzles me. Let's talk about how this would actually work. It clearly says that it's for dealing with threats of terrorism or “threats to the security of Canada”. It clearly says that's why they're gathering the information on specific flights and specific individuals. If then, as a result of doing that, they come across more information they have reason to believe is serious enough to impact a warrant, it only makes sense to address it, to have this clause here.

To eliminate this clause would be to somehow obfuscate the obvious, which is that once they have gathered this information, they must have clear authority to share it. We now have anomalies in our system where the Americans can share information with us, yet we can't with them.

The Chair: Mr. Radwanski.

Mr. George Radwanski: I have obviously somehow failed to make my point clear--

Mr. Steve Mahoney: No, not at all.

Mr. George Radwanski: --and I apologize for that. I repeat, there is no anomaly in the sense that if they come across an individual wanted on a warrant for a Criminal Code offence incidentally to looking into anti-terrorism matters, they do not need this provision because they already have the authority to do what's necessary. My office will distribute the opinion we have on that point.

But the key question is this. If you are looking to match the names of passengers on a flight with other sources of information for purposes of aviation security and transportation security, where do you look? Well, you don't look in CPIC, which is a grab-bag of all the information known to all the police forces, including about people wanted on warrants completely unrelated. You would look in what I referred to earlier--and I have spoken with experts in law enforcement on this point--the database known as SCIS, the secure criminal investigation system, which is a much more specialized database, one that has narratives pertaining to threats to security. So the issue is quite fully addressed.

I wish this committee would call an expert in law enforcement and ask them, if they're looking solely for people who are threats to aviation security from the point of view of terrorism, where they would most efficiently look. It wouldn't be CPIC, which has all the information on people wanted on a whole range of offences.

If they looked in the appropriate database and incidentally still found someone wanted on a warrant, or if they got a tip or something, they wouldn't need this provision. This is only a relevant provision if they're going to systematically use the cover of September 11 and transportation security for general law enforcement purposes. Then they might get in trouble unless you had this extra provision.

¿ (0945)

The Chair: Mr. Radwanski, we'll have to move on.

Ms. Ablonczy, please.

Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Well, this is very interesting. The committee has heard information about the provisions of the bill as it relates to privacy. I'm sure you're aware of this, that national defence could listen in on private communications with Canadians; that it would be legal to share personal information on immigrants and refugees under informal arrangements instead of the existing formal arrangements; that it would permit greater sharing of a very wide collection of personal financial transaction data; that it proposes to legalize collecting and using personal information housed in the private sector, this without the knowledge and consent of individuals, for transfer to government; that the rationale for this can be somewhat vague, namely that it's in the interests of national security or national defence or the conducting of international affairs; and that this bill would make the private sector into silent partners with the government in such security surveillance.

These of course are matters that very much impact on the privacy of Canadians. In a first world democracy, one of the distinguishing features--and I know you would agree with this--is the freedom of citizens from this kind of surveillance and intrusion and from the compromise of civil liberties.

My question for you is this. Given the fairly serious intrusions this bill would allow, are there any safeguards, independent review activities, or schemes for proper checks and balances that in your view should be put into place to balance the pretty serious powers that will be given in the bill?

Mr. George Radwanski: You raise some excellent questions. As I said in my remarks at the outset, although it's my duty to protect the privacy rights of Canadians, I also am conscious that one would not want privacy to actually stand in the way of what is genuinely and demonstrably necessary to enhance security against terrorism.

As you probably know, I've suggested that for any specific new intrusion on privacy in the name of security a four-part test should have to be met. First, the new intrusion must be demonstrably necessary to meet some specific need. Second, it must be demonstrably likely to be effective in meeting that need. In other words, we don't intrude on a fundamental right such as privacy just to make ourselves feel safer if it's not going to make us safer. Third, the intrusion must be proportional to the security benefit to be derived. Fourth, it must be demonstrable that no other less privacy-invasive measure would suffice to achieve the same purpose.

If you apply that to the various other possibilities you've mentioned, the things that could go too far, the law provides an umbrella for doing things that might be necessary as anti-terrorism measures, but any of those things, in my view, would have to meet the tests I've described.

Certainly, all the kinds of activities that you're referring to do fall within my jurisdiction as Privacy Commissioner.

What sets apart proposed section 4.82 from these kinds of considerations is that it simply goes beyond the whole issue of anti-terrorism and security into general law enforcement completely unrelated.

Does that answer your question?

Mrs. Diane Ablonczy: Somewhat, but let me follow up. If the four tests were accepted in the bill by Parliament, who would have oversight? Who would be the judge of whether the test would in fact be made? What checks and balances would there be to make sure that the authority for legitimate purposes was not exceeded?

¿ (0950)

Mr. George Radwanski: I'm not suggesting that they be put in this bill or elsewhere. They are the tests that I as Privacy Commissioner apply.

Who has the oversight? With all respect, you do. Parliament does. As you know, I am an officer of Parliament. My role, and the role of my office, is to act as the oversight mechanism, the watchdog, on your behalf as parliamentarians as to whether what is being done fits within both the letter and the spirit of privacy law and is consistent with the privacy rights of Canadians.

But, very honestly, that system only works well if, when the Privacy Commissioner raises a concern, as I did today on one specific provision--and as I did in my annual report last week with regard to a whole pattern of issues, pattern of behaviour--Parliament, which has the ultimate authority, does what I would regard as its role in this matter; that is, stepping in and insisting that rights be respected.

The Chair: Thank you, Mrs. Ablonczy.

We're running short on time, so I'll give the floor to Mr. Proulx and Mr. Bryden, with rounds of approximately three minutes, if possible.

Mr. Proulx.

[Translation]

Mr. Marcel Proulx (Hull—Aylmer, Lib.): Thank you, Mr. Chairman.

Thank you, Mr. Radwanski, for appearing before us this morning. My colleague Mr. Laframboise paid you compliments and told you that you are the safety valve and protector of the public. I just want to ask you to beware and not to take him too much at his word, because since yesterday, given what it did to Ms. Venne, the Bloc Québécois is not particularly well positioned to talk about police states. I suggest you take the definition from a dictionary, M. Radwanski.

Canadians' lives changed drastically on September 11, 2001. You speak in a language which is easy to understand and I would like you to help me understand what exactly you are saying this morning. You mentioned the CPIC data base, which you compared to a criminal data base kept in the interest of security. You talked about safety on airplanes. In your opinion, could a person with a criminal record of spousal abuse, fraud, theft or aggression represent a threat to flight safety?

Mr. George Radwanski: I'll be quicker if I speak English. I can speak French, but we don't have a lot of time.

[English]

The simple answer is that I put this question to Mr. Collenette, who brought forward this legislation, as to what data they had about the number of incidents of any kind of inappropriate behaviour aboard an airplane by an individual wanted on a warrant for matters not related to security or terrorism. They have not produced any such data, and in fact, I'm not aware of incidents where that has been a sufficient problem such as would require legislation of this kind.

Mostly, if people are wanted for something, they would tend to maintain a low profile in a public circumstance. A fraud artist probably isn't going to commit fraud on an airplane that will endanger the plane. Someone wanted for procuring probably isn't going to be pimping aboard an aircraft.

Mr. Marcel Proulx: You're assuming that, sir.

Mr. George Radwanski: Well, anything is possible, but then, if one is going to impose a new law, the burden of proof is on those who propose it. I have asked for statistics on crimes committed aboard aircraft by individuals wanted on warrants for regular Criminal Code offences, and I've not been given that data.

Mr. Marcel Proulx: But you're the one telling us that---

The Chair: Une courte question.

Mr. Marcel Proulx: You're saying that CPIC should not be used, but the database on violence in regard to air flights should be....

Mr. George Radwanski: No, no, a database on threats to security. It's not a database on violence with regard to airplanes; it's a database on known or suspected terrorists and other threats to security. This is security legislation, and the place to look is where that information is.

The most that CPIC would give you in that regard is a flag saying there is information pertaining to this individual in the SCIS database, so why not go to SCIS directly?

The Chair: Merci, monsieur Proulx, de votre coopération.

Mr. Bryden, please.

¿ (0955)

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): I just want to pick up the point that this is Parliament that is assembled here, and we don't impose laws. We try to pass laws in the best interest of all Canadians. It's just the wording that you used.

Tell me, in proposed section 4.82, should the state be entitled to collect information on foreign nationals who may be travelling on an aircraft, and share it with the RCMP and other appropriate authorities?

Mr. George Radwanski: Are you talking about--

Mr. John Bryden: I'm talking about non-citizens who may be travelling on aircraft.

Mr. George Radwanski: I would think, according to this legislation, only for purposes of aviation security. If there are other purposes, they should be spelled out in the legislation.

Mr. John Bryden: Well, it is spelled out. It says here, you could exchange the information in order to....

It says, under the definition of “warrant” in proposed paragraph 4.82(1)(c), if there's an outstanding warrant for extradition. So you're saying, then, the RCMP shouldn't have access to this aircraft data in order to locate a person who needs to be extradited from Canada for war crimes, for example.

Mr. George Radwanski: I repeat, that is not the purpose of this legislation. If the government wants to discuss changes in the information that is available to police for a whole lot of general law enforcement purposes, that certainly is something that's within the prerogative of the government to do.

This is supposed to be related to aviation security and national security. In my view, only those purposes can justify the unusual intrusion of mandatory self-identification that is built into this.

Mr. John Bryden: So then, I do understand you correctly. You are opposed to the idea that, for foreign nationals who may be wanted for war crimes, the state should not have the means of identifying these people through information gathered if they're travelling by air.

Mr. George Radwanski: No, no, they're--

Mr. John Bryden: So you're extending privacy protection to foreign nationals who may be wanted for extradition into a foreign country.

Mr. George Radwanski: Give me a break. You've now managed to take this from where I'm trying to defend the privacy rights of Canadians against mandatory self-identification to the state, to suggesting that I'm somehow speaking up on behalf of war criminals.

The Minister of National Revenue has in the past accused me of being somehow sympathetic to pedophiles by objecting to her database.

I would invite you to give me a break with that kind of extension, because I find that unbecoming.

Mr. John Bryden: Well, finally, Mr. Chairman, Mr. Radwanski has said that he feels it is permissible for the RCMP to identify people wanted for warrants incidentally. How can they identify them incidentally if they're travelling on aircraft and they're not allowed access to the information that is collected on those people travelling by aircraft?

The Chair: That will be the final question.

Mr. George Radwanski: I repeat, if the government wants to pass a law pertaining to measures that the police may use to seek people wanted on warrants for being war criminals or what have you, and that is introduced--I'm sure it will be debated on the merits and so forth--this is a law pertaining to transportation security. This section pertains to aviation security. So my argument is that it should not be structured in such a way as to invite other law enforcement purposes unrelated to aviation security.

That said, I repeat yet again, if the police do become aware incidentally of the presence of someone wanted abroad or wanted on a warrant for extradition, or a war criminal, their powers as a peace officer permit and require them to act on it, so this provision is redundant.

The Chair: Thank you very much, Mr. Radwanski, for appearing this morning and sharing your views with us.

Colleagues, we'll take a three-minute recess to make a change of witnesses and we'll proceed very shortly.

¿ (0959)

À (1006)

The Chair: Let's reconvene the committee for the purpose of studying Bill C-17.

We now have with us Mr. Reid, the Information Commissioner of Canada. Perhaps, Mr. Reid, before your remarks, you would introduce Mr. Leadbeater and Monsieur Brunet.

Also we have Mr. Hassan Yussuff, secretary-treasurer of the Canadian Labour Congress, and I'll let Mr. Yussuff introduce the lady accompanying him this morning.

So we'll being by hearing from Mr. Reid, please.

Mr. John Reid (Information Commissioner of Canada, Office of the Information Commissioner of Canada): Mr. Chairman, I am grateful for the opportunity to share with you my views with respect to the certain provisions of Bill C-17. I am accompanied by the deputy commissioner, Alan Leadbeater, and the director of legal services from the Office of the Information Commissioner, Daniel Brunet.

To begin, I should inform the committee that my office was not consulted by the government prior to the introduction of this bill. I am grateful to the committee for allowing me to come before you to talk about the two provisions of Bill C-17 that are not in harmony with the carefully constructed code of the Access to Information Act.

The first clause is 107. It's a consequential amendment to the Access to Information Act. Clause 107 of the bill would amend Schedule II of the Access to Information Act by replacing the reference to “subsections 4.8(1) and 6.5(5)” of the Aeronautics Act with references to “subsections 4.79(1) and 6.5(5)” of that act.

Now, this seemingly innocuous provision is in effect an override of the Access to Information Act. Without having to demonstrate any likelihood of injury from disclosure, clause 107 would authorize the government to keep secret the information mentioned in subsections 4.79(1) and 6.5(5) of the Aeronautics Act. This clause would have such an effect because of section 24 of the Access to Information Act, which states:

24.(1) The head of the government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.

(2) Such committee as may be designated or established under section 75 shall review every provision set out in Schedule II and shall, not later than July 1, 1986 or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting, cause a report to be laid before Parliament on whether and to what extent the provisions are necessary.

This mandatory review was carried out by the Standing Committee on Justice and the Solicitor General in 1985-86. Its resulting report, which recommended the abolition of section 24 of the Access to Information Act, is attached to these remarks for your information. I specifically draw your attention to the justice committee's concerns about the future uses of section 24--as we are seeing in this bill before the committee today. It said, and I quote:

Section 4(1) gives primacy to the Access to Information Act over other Acts of Parliament. Therefore by removing S.24 of that Act, the result is clear: other conflicting provisions are subject to the code of disclosure elaborated in the Access Act.

The Committee is concerned about a “slippery slope” effect should the current approach of listing other statutory provisions in Schedule II be retained. During its deliberations, briefs were received from both public and private sector sources in which various additions to the schedule were sought. The impact of permitting wholesale additions to the list of other statutory exemption in the Access Act is obvious: the spirit of the legislation could readily be defeated. The Access Act would not be a comprehensive statement of our rights to the disclosure of government records. Instead, it would be amorphous. One of the benefits to be derived by listing all the exemptions in the Access Act is that, in effect, the complete Act is brought under one roof. No longer would other legislation need to be consulted in order to determine one's rights in this vital area.

What of the future? What if a future Parliament wants to be absolutely certain that particular kinds of information is placed beyond the reach of the Access Act? It is hoped that those instances would be rare. Should they arise, however, Parliamentarians should be required to stipulate that they are deliberately evading the Access Act.

The Committee recommends that any legislation that would seek to provide a confidentiality clause which is not to be made subject to the Access Act should commence as follows: “Notwithstanding the Access to Information Act,...”

In this way, Parliament will be made explicitly aware of the impact of its actions. As a result, it is hoped that future provisions which are inconsistent with the code of disclosure established in the Access Act will be minimal.

Coming back to the specifics of this bill, Mr. Chairman, in order to complete the picture, one must go to sections 4.79(1)and 6.5(5) of the Aeronautics Act, which restrict disclosure of two types of information. One is information about a pilot's medical or optometric condition, and the other is information about air transportation security measures taken by the Minister of Transport.

À (1010)

If clause 107 of Bill C-17 is adopted in the current form, the government will be obliged to refuse to disclose any medical or optometric information about pilots or any information about air transport security measures without having to demonstrate the reasonable likelihood of injury from disclosure or without having to consider whether there is a public interest in disclosure.

Moreover, this blanket of secrecy would not be time-limited; it would be forever. I do not mean to imply that medical information about pilots or sensitive information about air transport security measures should never be kept secret. My point is that there is a more balanced approach to the protection of such information in the Access to Information Act, and that approach would be preferable in the interest of public accessibility as well as safety.

Here is the heart of my objection to clause 107. First, there is no information so sensitive that the exemption provisions of the Access to Information Act can't be trusted to protect it without resort to section 24.

Second, the exemption provisions other than section 24 contain within them opportunities for the government to exercise discretion as to whether to maintain secrecy by, for example, assessing whether or not an overriding public interest requires disclosure.

As well, other exemption provisions of the Access Act that would protect pilots' medical information and air transport security measures are time-limited—for example, the privacy exemption, which expires 20 years after death—or contain a reasonable expectation of injury test, as in the case for the exemption of law enforcement information or the protection of individual safety.

To put it in more legalistic terms, I feel that the exemptions contained in sections 15, 16, 17, and 19 of the Access to Information Act, which are included as an appendix, provide the mechanism for ensuring the necessary protection for pilots, medical records, and air transportation safety records. At the same time, these provisions enable such information to be disclosed where there is an overriding public interest, or in the case of non-personal information when no reasonable likelihood of injury from disclosure can be demonstrated.

Clause 107, if adopted, would make it mandatory for such information to be kept secret forever—end of story—and surely that's not reasonable in a healthy democracy.

Turning now to clause 106, the purpose of its provision is to restrict access to information provided to government relating to biological and toxin weapons material. However, the provision as written does not make it clear whether or not access to such information could be denied even when the information would be otherwise accessible under the Access to Information Act. In other words, which has precedence, the qualified right of access set out in the Access to Information Act or the provisions proposed in clause 106?

It's my view that it should be made clear in proposed section 19 of the Biological and Toxin Weapons Convention Implementation Act that it does not restrict access to information that would otherwise be accessible under the Access to Information Act. I propose that this be accomplished by adding paragraph 19(d), which would authorize disclosure “pursuant to the Access to Information Act”

My position is based on the fact that the existing exemption provisions of the Access to Information Act are fully capable of protecting any sensitive information relating to biological and toxin weapons materials that is provided to the Government of Canada.

Again, I draw your attention to sections 13, 15, 16, 17, and 20 of the Access to Information Act, which are attached, which protect: information supplied in confidence by foreign state, in section 13; by third parties, in section 20; that would pose a risk to the defence of Canada, in section 15; that would be injurious to law enforcement, in section 16; or that would threaten the safety of individuals, in section 17.

This is a web of protection that has stood a 20-year test without ever failing to provide full protection for any information necessary to keep secret in the national interest of Canada.

I hasten to add that by virtue of the notwithstanding clause contained in section 4 of the Access to Information Act, it is arguable that the access act would take precedence over the proposal contained in clause 106.

À (1015)

My recommendation to this committee is that we clear up any doubt by adopting the amendment I suggested earlier.

In summary then, Mr. Chairman, I urge you to recommend that clause 107 be dropped from the bill, and that clause 106 be amended to make clear that disclosure is permitted under the Access to Information Act. By so doing, Parliament would reinforce the fact that decisions about the accessibility and secrecy of records are to be worked out within the carefully crafted framework of the Access to Information Act, where they are subject to an independent review by an officer of Parliament.

I am grateful, Mr. Chairman, for your attention, and I am available to answer any questions members may have.

The Chair: Thank you very much Mr. Reid.

We'll proceed to Mr. Yussuff's presentation, followed by questions.

Mr. Hassan Yussuff (Secretary-Treasurer, Canadian Labour Congress): Thank you, Mr. Chair.

On behalf of the congress, I would like to thank the committee for the opportunity to present this morning. We will submit a complete brief within two weeks of our presentation here today, given some of the legal aspects we are still struggling with in regard to the legislation itself.

Mr. Chair, members of the legislative committee on Bill C-17, on behalf of the 2.5 million members of the Canadian Labour Congress we want to thank you for affording us the opportunity to present our views on Bill C-17, the Public Safety Act.

The Canadian Labour Congress is a federation of approximately 70 trade unions, organizations whose members work in all sectors of the Canadian economy, in all occupations, in all parts of Canada. Many of our members work in the transport sectors and are directly affected by Bill C-17.

As members of this committee know even better than we, Bill C-17 is voluminous. In order to minimize the chance of not understanding the legislation and its importance, the CLC has asked the law firm of Ruby & Edwardh to prepare an analysis for us. Earlier this year we asked the same firm to prepare an analysis of the original trio of anti-terrorism bills that were presented to this House. These analyses are available to members of the committee on request.

We will begin our comments by focusing on Bill C-17 itself. However, in commenting on it, we want to draw the attention of committee members to certain patterns of legislation and political change that Bill C-17 forms a part of.

Subject to certain caveats, it will be noted that the CLC is not objecting to the gathering of personal information that can be reasonably expected to contribute to increasing the safety of air passengers and employees, and/or to apprehend actual or would-be terrorists. But any new legislation initiative to achieve this objective must be limited to this objective.

The problem with Bill C-17 is that it clearly breaks beyond what is required to achieve this objective and does so in a way that offends the Charter of Rights and Freedoms. Bill C-17 gives the Minister of Transport the right to gather a range of information on air travellers entering or leaving Canada. This information can be shared in other departments and agencies--including CSIS and the RCMP--with a responsibility for transport security, and it must be destroyed within seven days. This is not unproblematic in itself, but can likely be defended under current circumstances.

What is particularly problematic about Bill C-17 is the lack of limitation on the use of personal information after it has been in the hands of CSIS and the RCMP. These agencies can cross-reference the information with other information in their files, and if they deem it relevant, they can pass the information on to any peace officer. The information passed on must be relevant to warrants for serious offences, and the government will establish by regulation what the serious offences are.

The government has produced a draft regulation that identifies no less than six pages of criminal offences, as well as other offences under acts such as the Controlled Drugs and Substances Act.

The Criminal Code offences include pointing a firearm, assault, fraud, and mischief. While these offences are serious, they are not in the same order of hijacking a plane and flying into a skyscraper. They go well beyond the scope of what is required to deal with terrorism acts.

In the Ruby & Edwardh analysis, the problem with Bill C-17 was summarized as follows:

The government has repeatedly said that Bill C-17 is a response to the terrorist events of September 11, 2001. Even if we were to agree that seizure of information under Bill C-17 by the Minister of Transportation is justified to protect the Canadian border, enhance security and prevent terrorist activities, the provisions of Bill C-17 go far beyond what is needed to meet these objectives. In fact, as outlined above, the information seized will be used for the general purpose of executing outstanding Criminal Code warrants for offences unrelated to national security or terrorism.

Others with greater legal expertise than the CLC have argued that the provisions of Bill C-17 violate the Charter of Rights and Freedoms protections against unreasonable search and seizure, which is provided for in section 8 of the charter, and the right to be protected against self-incrimination, which is provided in section 7 of the charter. The CLC shares these concerns.

In order to bring Bill C-17 on the side of the Charter of Rights and Freedoms, Ruby & Edwardh have proposed elimination of the transfer of information to any peace officer as provided for in proposed subsection 4.82(11) of the Aeronautics Act. A less thorough alternative would be to limit the information disclosed to a short list of offences spelled out in the legislation itself that relate specifically to air travel safety and terrorism.

À (1020)

In addition, various subsections and proposed section 4.82 need to be amended to provide for the destruction of information that is not used for purposes immediately related to air travel security and terrorism.

There is an additional dimension to Bill C-17 that needs to be addressed. One of the practical effects of Bill C-17 is to turn thousands of Canadians--airline clerks, travel agents, and so on--into information gatherers for Canadian police forces. This certainly blurs the line between the state and society in a way that cannot help but infringe on people's privacy rights. Moreover, if the people in these information-gathering positions come to be viewed as vital to policing operations, there is a risk that security clearances will be required in order to occupy these positions. For reasons we will come back to below, we are not confident that security requirements will be defined in an appropriate way.

One of the common characteristics of measures adopted in response to the terrorism attacks of September 11 is that they impose new responsibilities of a policing nature on many Canadians who are not government employees, let alone police. Yet appropriate training for these new responsibilities is seldom provided. In many cases the failure to provide training will simply mean that the new functions are not performed adequately. For example, airline employees are told that they are to search luggage for bombs, but they are not trained in bomb recognition. No doubt if a bomb were labelled as such, they would recognize it. If they are not labelled, it's anyone's guess whether they will be recognized for what they are.

The lack of training and related protocols can be a source of real danger. A case in point is provided by the lack of training of flight crews on their role and responsibilities in relation to the armed aircraft protection officers who are now on flights from Washington's Reagan airport at the request of the U.S.

In addition to the practical problems associated with a lack of training, it is an important matter of principle whether we should be deputizing and training people whose job is not policing or rather finding ways to equip the police to perform these functions. Hopefully, the committee will take up this issue.

Overreaching what is required to deal with terrorism and doing so in a manner that offends the rights of Canadians is not a problem unique to Bill C-17. We note, for example, that Bill C-36, the anti-terrorism act, defines terrorist acts and organizations. We are confident that the intent of the legislation is not to limit traditional trade union activity and/or political dissent.

It is equally clear that the definition of terrorist acts is so loose that it could apply to picket line violence and/or protests that are subject to police harassment. If the police and courts construe the definition in a very broad manner, then many legitimate activities could be termed terrorist. What is at stake in the interpretation of the loose wording of the act is substantial, as the terrorist label triggers a number of policing provisions that do not conform with traditional norms of due process of law; for example, preventive arrests, requiring people to give evidence against themselves, and so on.

Charter issues with regard to information gathering and use by government also arise with regard to Bill S-23, which amended the Customs Act. In a similar vein, we note that the proposed changes to the Citizenship Act in Bill C-18 involve the denial and revocation of citizenship based on secret evidence to which prospective and actual citizens, as the case may be, cannot respond. This certainly offends the traditional notions of due process of law.

Bill C-17 is related to some broad patterns of policing, two of which need comment. In view of the attacks of September 11 and the general emergence of terrorist networks, there is a clear case to be made that increased police activity is required to deal with the threats posed to the safety and well-being of Canadians. That said, we would be quick to add that policing is only part, and probably a small part, of the required response, and as always police activity has to be subject to careful scrutiny and control so that it does not undermine the very values it is supposed to uphold.

Our long-term and recent history suggests that the expansion of police powers that has accompanied the events since September 11 and that is embodied in Bill C-17 requires close oversight in two areas in particular. First, police forces generally have shown a poor appreciation for the right to dissent and the exercise of trade union rights. Police harassment during the recent anti-globalization demonstrations here in Ottawa and Quebec City is a case in point, as is the recent revelation of CSIS spying on the Canadian Union of Postal Workers.

Second, we are concerned about racial profiling of persons of colour by police forces. This problem has been openly recognized in Toronto, but we are convinced that it's a problem in many parts of Canada. It is a problem that mixes in a particularly dangerous way stereotypes about who might be a terrorist.

We also note that the events following September 11 have been seized by the Canadian Council of Chief Executives to argue for deeper integration with the United States in a number of areas. This is the same group that said we would achieve secure access to the U.S. economy through Canada-U.S. free trade in NAFTA. It would seem that no amount of U.S. harassment to Canadian imports on softwood lumber, steel, and agricultural products will divert any dreamy CEOs from this version.

À (1025)

In our view, the government has already conceded too much to this view. Bill C-38 was hived off from the original version of Bill C-17, originally Bill C-55, and was passed on its own. Bill C-38 provided for the exchange of information on air travellers between the Government of Canada and foreign governments, in particular the United States.

It is the view of the CLC that aligning ourselves more closely with the United States will not lead to peace or prosperity for Canadians. It puts us in an undesirable posture vis-à-vis the rest of the world. Indeed, in the near term it will subject Canada to unnecessary risk of terrorist attack.

As we noted earlier, our chief concern with Bill C-17 relates to the use that can be made on information gathered by CSIS and the RCMP from the Minister of Transport. It is our hope that the committee will amend the bill, as suggested earlier, to limit the use of information-gathering under Bill C-17.

In addition, we believe Bill C-17 raises important issues about the effective deputization of thousands of Canadian workers. It is also part of the disturbing pattern of legislation that goes beyond what is required to deal with the threat of terrorism and that infringes on traditional rights. Bill C-17 is also part of a worrisome pattern of expanding police powers and aligning ourselves with the U.S. in many ways that will distance us from other countries. It would appear, from the absence of a sunset clause in the bill, that the government wants to make these intrusions in the charter's rights permanent features of the Canadian legal regime.

It is the hope of the CLC that members of the committee will take up these wider issues and that they will deepen your resolve to limit the scope of Bill C-17, as we suggested.

Thank you, Mr. Chair.

The Chair: Thank you very much.

Now, colleagues, I'd hoped we would have a little more flexibility in terms of time, but as verified by our clerk, this room has been scheduled for another committee meeting at 11 a.m. That would dictate that we can enjoy six rounds of five minutes. I'll make sure each of the opposition parties has a round, of course, and the other three will go to the government side. But I will have to be somewhat rigid on the five minutes, so please keep that in mind and please be generous with one another.

Mrs. Ablonczy.

À (1030)

Mrs. Diane Ablonczy: Mr. Reid, thank you for your very clear presentation. As I understand your concern, you are not only concerned that the integrity of the information act could be compromised by having exceptions buried in other acts that are not referenced clearly in the Access to Information Act, but more importantly, you are concerned that the operation of those exceptions would not be subject to review, because they would not be caught under the rubric of the act.

Do you see any safeguards that could be put into place in Bill C-17 with respect to this proposed practice, which, while not being as strong as having everything fall under the information act, could mitigate this situation to any extent?

Mr. John Reid: The committee, when it reported on this section, was concerned about the prospect of a slippery slope. When the committee met, there were about 24 provisions under section 24. That was within three years. You'll be delighted to know there are now 60 provisions affecting 50 acts, so without this the government has been using section 24 as a major weapon in keeping information secret and away. The fact of the matter is, this is simply another one, of a continuing process, that the government has chosen to take information out of the public domain.

If you take a look at the information contained in the clauses we have been speaking about, you can eliminate those clauses and the information that the government wishes to see protected will be protected under the Access to Information Act. All of the information is protected by section 13, section 20, section 15, section 16, and section 17. My point is simply that this is redundant. I don't know why the government is seeking to do it, because the information act does provide that protection.

The big change is that if this provision goes through, Parliament will lose its ability to watch what the government does with these provisions, because there will be no independent review of the decisions taken by the government. So that is the big change. The big change is to remove Parliament's ability to monitor, through the independent review by the Information Commissioner. That is the significant change.

Mrs. Diane Ablonczy: Mr. Reid, could that also be a slippery slope? In other words, could this be the first of many such exceptions?

Mr. John Reid: Yes. We saw that in the previous piece of legislation. This is a continuing pattern that we've noticed.

Going from some 24 within the first three years of the bill to some 60 provisions in 50 acts now, you can understand that maybe we're coming down to where the slippery slope is getting more slippery and more things are being added.

Mrs. Diane Ablonczy: It's a little bit steeper.

Mr. Reid, you're a former parliamentarian. The Privacy Commissioner suggested that all of these measures would be subject to oversight of Parliament. Parliament then could make sure there's no inappropriate misuse of such provisions.

You're actually saying that there could be no oversight of Parliament in this case because Parliament wouldn't know what's happening.

Mr. John Reid: Once you remove the independent review of decisions taken under the access act, Parliament has no ability to get any kind of information at all.

The other point to remember is that by removing the concept of independent review, you also end up destroying the internal debate within the government. When there is the possibility of an independent review, the public servants will debate whether or not the material comes under this section or that section. So there will be discussion. But once it's an absolute right, with no ability from anybody outside, or even within the system, to engage in debate, then you really have a much stronger set of power located in certain elements of the government, with no possibility of debate or discussion.

The Chair: Thank you, Mrs. Ablonczy.

Mr. Bryden.

Mr. John Bryden: First of all, let me say that I agree with you 100% about clause 107. I know the act well enough that in fact there is no justification for it. The act fully covers the information in other places.

I'm a little bit more uneasy with clause 106. It would appear that clause 106, as it's the biological warfare and toxins act, would apply to non-governmental organizations. And if I understand you correctly, you're suggesting that section 19 of the act should adopt access to information rules, but yet organizations covered by that piece of legislation are not governmental.

À (1035)

Mr. John Reid: I'd like Mr. Leadbeater to speak to that point.

Mr. J. Alan Leadbeater (Deputy Information Commissioner of Canada, Office of the Information Commissioner of Canada): I think you make a good point, Mr. Bryden. That's why we're just suggesting that this section be made clear, that if release is authorized by the Access to Information Act, after applying all these carefully structured exemptions, it should be authorized by this statute.

If it's not authorized for release--for example, if the institution is not covered by the Access to Information Act--then this provision would continue to operate and protect the information.

That is the proposal we're making. Make it clear in the provision that, if a disclosure is permitted by some institution subject to the Access to Information Act, if it's permitted to disclose it, it should be allowed to continue with its disclosure practice under the Access to Information Act.

Mr. John Bryden: Okay. I'll have to think about that; I just don't know.

Let me ask you another question. We had a lot of discussion here with respect to the collection of passenger data and how it might be used by other authorities.

Under the Access to Information Act, do you have some oversight of how the data would be used, were somebody to ask for a document pertaining to how the police were using that particular data? Is there an oversight provision?

Mr. John Reid: There is a provision to request information from the various police forces, but there are overrides to protect it, which I have outlined. For example, data that's a process of an ongoing investigation would not be released.

Mr. John Bryden: But you would be able to see it. That's the point.

Mr. John Reid: We would be able to see it. We do have the ability to see what the information actually is.

I can tell you that our best customers, or the ones that we like to deal with, are CSIS and the RCMP. They are very professional about how they deal with these questions. They know where the records are. We can have intelligent discussions with them.

So we get to see the material, and we have no problems in terms of dealing with them.

Mr. John Bryden: I remember this was a complaint that you had about the anti-terrorism legislation. There's a provision that denied you access to even see the documents. Then you would agree that the fact that you can see these documents, even though you can't disclose them, does represent an oversight, to some degree at any rate.

Mr. John Reid: It is an oversight, because we do the testing, along with the departments that own the data, to make sure that the data that's being withheld or released fits within the centres of the Access to Information Act. The provisions dealing with the protection of data that is important for the safety of Canada or the integrity of police investigations, this has been well worked out with great detail in the act. The police and the politicians have never complained in the 20 years of the act that information under these headings has ever come out illegally or to the detriment of Canada. I think one of the reasons for that has been the oversight function that has been played by the Office of the Information Commissioner.

Mr. John Bryden: I have a final question, Mr. Chairman.

Can you give me any sense of what it's like in the United States or in Britain with respect to this kind of oversight by the information commissioner? I guess there isn't a commissioner in the United States.

Mr. John Reid: In the United States there is no commissioner.

Mr. John Bryden: So they don't have a similar oversight control.

Mr. John Reid: No, they do not.

Mr. John Bryden: And in England?

Mr. John Reid: The British legislation has been passed but it is not yet implemented.

Mr. John Bryden: So we are ahead of other nations, at least in terms of that level of oversight.

Mr. John Reid: Yes. When I became commissioner five years ago, about 14 countries had access to information regimes. That figure is now up to 40 or 45. This has now become the mark of a mature democracy.

The Chair: Thank you, Mr. Bryden and Mr. Reid.

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman.

In your introduction, you said that the government did not consult you enough when it drafted Bill C-17. When amendments are proposed to legislation, including the Access to Information Act, is it normal that you are not consulted?

[English]

Mr. John Reid: It has been normal in my term of office. I cannot speak for other commissioners.

[Translation]

Mr. Mario Laframboise: When the government wants to pass a bill, it usually has two reasons to do so: urgency and relevance. My question is for both witnesses. In your view, does the nature of your work call for speedy passage of this bill and are the proposed amendments relevant?

À (1040)

[English]

Mr. John Reid: Mr. Chairman, I don't think I want to put myself in the shoes of the government, which has different pressures as to whether it should act or not act, but I do want to say that, in the context of the Access to Information Act, it is my judgment that both these clauses are redundant and unnecessary, and they do not have to act in this area, and if they do not act in this area, they will have all the security that they require for this information.

[Translation]

Mr. Mario Laframboise: Thank you.

Mr. Yussuff, is it imperative that this bill pass quickly in the interest of protecting privacy and is it relevant? Other pieces of legislation have been adopted. In December 2001, this bill was number C-42, in 2002 it became Bill C-55 and now we have the third version of the bill.In your opinion, is there a pressing need for this legislation and is it relevant in terms of privacy protection?

[English]

Mr. Hassan Yussuff: I think we recognize that if the objective of the legislation is to try to identify individuals who might be terrorists coming to Canada, the security agency might share information on this. I think that's a relevant point in regard to Canadian safety, and the government has some responsibility to do that. Our concern is the process in which information is collected. The role that our members will be playing in the context of...they're not agents of the government, they're employees of airline companies.

In addition, we have concerns about the timeframe for how this information is shared or when it's being destroyed. We are also concerned with what information will be available, in terms of access to information, that we can get to find out if the information is correct if somebody wants to check.

So there's a number of areas I think we have some serious concerns with. I think we stated very clearly in our points that we do not have any objection to the government trying to play a more important role in monitoring who enters this country and who leaves this country. That can be recognized, but we need to do that with a bit of care because the Charter of Rights and Freedoms certainly ought to be in every way encompassed in the context of how legislation is drafted. Legislation must be drafted with a concern as to how ultimately it might affect the Charter of Rights and Freedoms, and we think there are some clear deficiencies in here.

I think in the larger context, it also continues a trend that we think is very disturbing in a number of pieces of legislation that have come before Parliament since September 11. And I think we're saying to you, as parliamentarians, that this has to be dealt with. For instance, there's no recognition in this legislation regarding sunsetting this legislation at a certain point in time that we think might be appropriate.

I think this should be important in the context of your responsibility. We also believe it is important to recognize that any new authority given to the police ought to be done with as much oversight and protection as possible, because we know from our own experience that, whether it be CSIS or the RCMP, they have used the broad powers they have under legislation to undermine the integrity of our institution and our members' activity on a regular basis.

[Translation]

Mr. Mario Laframboise: Thank you for your observations. In the previous exchange, I was saying that we are heading more and more towards a police state. The liberal members on the other side laughed, but I would like to thank you for sharing my philosophy regarding respect and for your wish that we not become a police state.

Thank you.

The Chair: Thank you, Mr. Laframboise.

Mr. Mahoney.

[English]

Mr. Steve Mahoney: Mr. Chair, I hope I have time to get two basic questions in, one to each group.

To Mr. Reid first, I'm having some trouble understanding something. It's my understanding that in schedule II to the Access to Information Act--which we're not really dealing with except in the change of numbers that clause 107 refers to, and it seems to me that all clause 107 does is change numbers--there is already a provision that allows the government to refuse to disclose certain information, for example, information that relates to security. If it was required to disclose that it would obviously delete or dilute the effectiveness of that information as it relates to security, and the other aspect would be information relating to medical records of a pilot.

So there has to be some ability not to disclose this information, and I thought that all this was doing was really making it clear in this bill, as it relates to this bill. Because, with due respect to the Access to Information Act, we don't want the tail wagging the dog. This bill has a specific job that relates to security of the nation and terrorism. So I wonder if you can help clear that up for me.

My second question would be to Hassan as it relates to security clearance and the training of staff.

There was a report recently by a Senate committee that outlined some very serious concerns around security at some of our airports and there were quotes by people on loading docks, etc., saying that they can show you easily how to get a bomb on an airplane, and that there is no security, etc. That report was disputed by the Minister of Transport, but notwithstanding that dispute those claims were made and those statements were made.

My question for you is, should not all people working in airport baggage handling, and so on and so on, undergo security clearance and security training?

I'll put those two questions forward.

À (1045)

Mr. John Reid: I'll ask Mr. Leadbeater to answer that.

Mr. J. Alan Leadbeater: If I understand your question, it is whether there is some material that we think should be kept secret. The answer is yes. It would include pilots' medical conditions, such as any problems with eyesight; similarly, security measures the minister may put into place that he does not wish to make public.

The difference is that by putting it into section 24 of the Access to Information Act you make it a mandatory class exemption, with no injury test, no time limit, no discretion, no balancing of the public interest. By leaving it in the existing exemptions of the Access to Information Act, you have all of those elements.

Our point is that the protection is there for confidentiality when it's needed, but if there are circumstances where the public interest requires some openness—some outrageous medical condition a pilot might have, or some outrageous security measure involving some sort of X-raying of human bodies going through security that were kept secret—it may be important that the balance of public interest requires some disclosure. That is permitted if the other sections of the access act are used. It is no longer permitted once it goes into section 24. It's a mandatory class exemption forever.

The Chair: Mr. Yussuff.

Mr. Hassan Yussuff: Regarding the two points you make about training, in the context of our members who work in airports across the country, there are two points.

One, it has certainly been identified that there has been a lack of training in some areas. With respect to some provisions of this particular bill where they will be required to now perform different “duties”, we raise the question of whether this is an appropriate function. These employees were not hired to become agents of the state. Their responsibility is not to provide information-gathering. If you're compelling them to do so, I think it's a fine test, crossing those boundaries.

Certainly at the staff level for baggage handling and stuff for the airport, most airport employees go through a security assessment beforehand and are issued appropriate passes with respect to their responsibility. That is what I understand from my colleagues who represent workers in the sector. That will continue, except, I think it is worth noting, in the context of some hypothetical argument—workers are asked to identify bombs, for instance, or security officers travelling on airplanes—these are serious changes from what they've been trained to recognize.

In the context of those added provisions on airplanes, I think employees have to be given new training so they can respond to a potential emergency if one were to occur on an airplane. From our understanding, such training has not been given to those employees, or not to this point in time.

À (1050)

The Chair: Ms. Desjarlais.

Mrs. Bev Desjarlais: First, thank you both for your comprehensive presentations.

Mr. Reid, I'll qualify this to you by asking my colleagues from across the way not to take personal offence. I've tried to think of another way of asking this, and I can't come up with one.

You commented on the mark of a mature democracy being access to information legislation. How would you qualify a government that tries to weasel out of giving that information?

Some hon. members: Oh, oh!

Mrs. Bev Desjarlais: I tried to come up with another way of saying it, but “weasel” was as good as I could get.

The Chair: Is this relative to Bill C-17 specifically?

Mrs. Bev Desjarlais: It is, yes, specifically to Bill C-17.

Mr. John Reid: I will very gingerly put my toe into that very difficult thing by saying there is a once-a-year meeting of the access to information commissioners and the privacy commissioners from around Canada. We sit around a table like this and we complain about all governments of all political stripes doing whatever they can to reduce the access of citizens to information. No party in power in any province, or the federal government, is excepted from that series of complaints.

Mrs. Bev Desjarlais: Exactly. It doesn't make it right.

Mr. John Reid: Let me say that the fewest complaints come from the province of Alberta, where the premier is a very strong supporter of access to information, but if you talk to the commissioners from there, they too have really significant problems.

Mrs. Bev Desjarlais: It obviously hit a lot of soft spots. I don't argue with the fact that any government that does it should be taken to task. The government we're dealing with right now is the Liberal government of Canada, introducing this legislation, and that's what we're dealing with as parliamentarians.

Thank you.

The Chair: I'll now look to the government side. Any further questions?

On behalf of the members of the committee, let me thank both Mr. Yussuff and Mr. Reid and their respective associates for being with us this morning.

Colleagues, we reconvene next Tuesday afternoon at 3:30.

Thank you. Adjourned.