Proceedings of the Special Senate Committee on Bill C-36 (formerly the Subject Matter of Bill C-36)

Issue 6 - Evidence 

The Special Senate Committee on Bill C-36 met this day at 2:02 p.m. to examine the subject matter of Bill C-36, to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism.

Senator Joyce Fairbairn, P.C., (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, welcome back to our special committee dealing with Bill C-36, the anti-terrorism bill. We received the bill from the House of Commons on November 29 and this is our first meeting on the bill since then. Our previous 13 meetings on the bill were part of an intensive pre-study of the subject matter of Bill C-36 before the House of Commons had dealt it with. We were asked by the government to send over our concerns and recommendations, which we did in our report of November 1.

A number of those recommendations are reflected in important amendments made to the bill now before us, but not all of our suggestions were included. We will hear more about that in the days ahead from the witnesses, including the Minister of Justice, the Solicitor General of Canada, the Information Commissioner, police organizations, academics, bar associations, civil liberties groups and representatives of cultural associations.

Our first witness is the Privacy Commissioner of Canada, Mr. George Radwanski, who appeared before us on our pre-study. Before I call on Mr. Radwanski to make his opening statement, I will suggest to the members of the committee that a motion be moved to facilitate the functioning of the committee this week. This was recommended at a meeting of the steering committee last Wednesday.

As honourable senators will know, the practice has been developed in a number of committees to pass a motion at the beginning of public hearings on a bill to indicate that there will be no motions for the final disposition of that bill in committee until all scheduled witnesses have been heard. The purpose of this motion is to remove some pressure on senators to be present every minute of every hearing just in case an unexpected vote is held.

As chair, I am well that our committees currently have heavy schedules dealing with important legislation and that scheduling conflicts may occur due to the continuous sittings of this committee this week.

We were able to work around that in a collegial manner during pre-study. However, to reassure senators who must temporarily absent themselves to look after other duties at this busy time that there will not be unexpected votes, I suggest that the following motion be moved:

That with respect to Bill C-36, the Chair shall receive no motions dealing with the final disposition of the bill in committee prior to the completion of the hearing of all scheduled witnesses.

Senator Fraser: So moved.

The Chairman: Will all those in favour so indicate.

Hon. Senators: Agreed.

The Chairman: Thank you, senators.

Welcome back, Mr. Radwanski. You now have the floor to give us your opening statement, which you can well expect will be followed by enthusiastic questioning.

Mr. George Radwanski, Privacy Commissioner, Office of the Privacy Commissioner of Canada: I do not have a substantial statement to make. I am here at your request and am, of course, at your disposal.

I recommended a number of amendments to the legislation as it was originally presented in response to some very serious concerns I had about its scope and the way it was drafted with regard to privacy. All of those concerns have been fully met in the amendments introduced by the minister, and I am pleased with that. As well, some things that would have concerned me were not introduced, and I am also pleased with that.

From my perspective and from the point of view of privacy, I am fully satisfied that the bill, as it now stands, is a reasonable balance between the need for enhanced security and the importance of maintaining the maximum possible protection for privacy.

That being said, I am in your hands.

Senator Lynch-Staunton: It is nice to hear someone being so cheerful about amendments. I wish I felt the same about other amendments that the minister brought and did not bring. However, that is for another time.

Could you tell me what will be changed from the current process of an individual seeking information from a department on himself or herself and, if refused that information, asking you to intervene with the department and going to the Federal Court for a hearing if you fail in your intervention? As I recall, when you were here the last time you said that only four times in 20 years has the Federal Court released information. I believe that at the moment the only ground upon which information can be refused is the ground of national security. Is that correct?

Mr. Radwanski: There are several grounds for refusal. National security is one. Another is ongoing work of an investigative body. There are a variety of exemptions.

Senator Lynch-Staunton: The Federal Court can either order the release of the information or confirm the department's original position.

Mr. Radwanski: That is correct.

Senator Lynch-Staunton: This amendment, which you support, follows those steps pretty well except that once the Federal Court agrees to the release of information the minister can impose the certificate. Is that correct?

Mr. Radwanski: Only at that point if the court orders release.

Senator Lynch-Staunton: The individual can appeal that?

Mr. Radwanski: That is correct.

Senator Lynch-Staunton: Therefore, what has changed? Is it the appeal process?

Mr. Radwanski: A great deal has changed. It may be that I did not explain my concerns sufficiently to this committee when I first appeared, which is perhaps why the committee did not take up my concerns in its recommendations.

Senator Lynch-Staunton: I am not asking you to repeat your concerns. I am asking you what is the difference now.

Mr. Radwanski: Senator, to answer that I have to tell you what was wrong with the previous provisions. My concern with the previous provisions was that they went far beyond ensuring that an individual could not, by order of a court, end up with access to highly sensitive information. The way it was originally drafted, because it did not refer, first, to information about an individual, the minister could have issued blanket certificates that would have not precluded an individual from getting information but would have precluded the disclosure of information by an entire agency or department, or every agency and department. Second, it said that where a certificate is issued the act does not apply, and that did not mean only the provisions that deal with the right of individuals to access their personal information.

All the fair information practices in the act would not have applied where a certificate was issued, including other restrictions on the collection, use, data matching, sharing with third parties and so forth. The net result of the provisions as previously drafted was that it was possible for a Minister of Justice, an Attorney General, to sign a series of blanket certificates, and the Privacy Act in effect simply would not exist.

That has been completely changed with the amendments because they now refer specifically to information about an individual. They make clear that where such a certificate is issued - which now must be piece meal, it cannot be wholesale - only those provisions dealing with disclosure to the individual do not apply. What concerned me the most has been fixed.

On the specific aspect of the individual being able to access his or her information, the minister previously could have issued the certificate at any point hence there would have been no opportunity for the Privacy Commissioner to even review the information in order to judge whether it was even appropriate to recommend its release. That oversight rule would have been removed entirely.

Under these provisions, the minister could only issue the certificate much further downstream at the point where a court was reviewing it. It is the role of the Privacy Commissioner to be aware of what is going on and to be able, if need be, to make the argument at some point that the information in question was not so sensitive as to deserve this treatment. As often happens when information is exempted under one of these provisions - that is, an absolute exemption - it cannot be reversed by the commis sioner or anyone else except the court.

However, it often is possible to persuade the authorities that there is question that some part of the information is not sensitive, some part of information is disclosed to the individual, and only what is truly sensitive remains exempted. That part of the rule remains in place, too. Basically, it is the difference between night and day, senator.

Senator Lynch-Staunton: I think you are comparing the original amendment to the Privacy Act.

Mr. Radwanski: Those were my concerns.

Senator Lynch-Staunton: What is the major difference between the Privacy Act and this bill other than the additional appeal to the Federal Court of Appeal? What other step has been added?

Mr. Radwanski: There is now a mechanism for a further appeal, which was not there previously.

Senator Lynch-Staunton: Other than that?

Mr. Radwanski: Not much.

Senator Lynch-Staunton: The certificate is new, is it not?

Mr. Radwanski: That is a given.

Senator Lynch-Staunton: The 15-year certificate.

Mr. Radwanski: Yes. However, that does not particularly concern me because a court has seldom stepped in to overturn one of these exemptions. In the instances where I have seen them applied, they made sense. Where some part of it is unnecessary, it has been my experience that the authorities in question have been quite reasonable in making the adjustment.

Frankly, a certificate could be issued in a very rare instance where a court could overturn. That is one of those tradeoffs. As I said, there must be a balance between security and privacy. This strikes me that this is one of these balances. It does not strike me as cause for huge concern.

Senator Lynch-Staunton: When the individual goes to court, does the Privacy Commissioner help in that procedure or does your office stay away from that and leave the individual on his own? You have helped him in the initial process to try to get the information. The government refuses, and then he goes to court. Do you carry on in helping him to protect himself?

Mr. Radwanski: To be honest with you, senator, that has happened so rarely that I would have to look up what my predecessors, did. For my part, if I felt that an exemption was wrongly applied, I would certainly not be hesitant to make that known in court.

Senator Lynch-Staunton: Your authority does allow you intervene at the court level?

Mr. Radwanski: There is nothing to prevent me from doing so as far as I know.

Senator Lynch-Staunton: Do you have the funds with which to do that?

Mr. Radwanski: We have the funds intervention in court, wherever necessary. We currently have a few issues before the Supreme Court. We have the funds.

On any issue where it is important to protect privacy and the obstacle was funding, I would not hesitate to come back to the government and say that we need more funding. I certainly would not hesitate to be candid with a committee like yours and ask for a hand to persuade the government to give us more funding because I am inhibited from doing my job.

Senator Finestone: I found interesting your response to Senator Lynch-Staunton. I gather, from the letters in the information that you were good enough to send, that you are in support of the amended bill. You do not feel that there is any way in which an individual's information can be accessed contrary to their will or without their consent. Is that correct?

Mr. Radwanski: There are many provisions of the bill that touch on privacy, for instance, the aspects regarding the CSE, which are changed somewhat. I regard those provisions as being part of the reasonable balance that must be drawn in a time of emergency between security on one hand and privacy on the other.

There are other aspects of this bill that certainly touch on individual rights other than privacy. The position I took prior to the amendments and the letter I wrote to the minister should not be interpreted as expressing any opinion on aspects of the bill other than those touching on privacy. That would be beyond my mandate as Privacy Commissioner.

I am satisfied that this bill, as it touches on privacy rights - which are under my jurisdiction - is now a reasonable balance between the requirements of security and the desire to protect privacy to the maximum possible.

Senator Finestone: We all know that privacy is not an unfettered right. It has certain constraints. The Charter of Rights indicates what we can do with respect to issues that we may feel affect us.

You are not saying that privacy is dead. You are saying that privacy is protected to the degree that is a fair balance in a society that has concerns for the well-being of its citizens.

Mr. Radwanski: That is correct. Privacy is alive and well, as far as I am concerned with regard to this bill.

There are changes that would permit the CSE not to disconnect if it is monitoring a communication for security reasons merely by virtue of one end of the conversation extending into Canada. Yes, that diminishes privacy somewhat, but that strikes me as reasonable in the circumstances. One could go through the other provisions in a similar way.

I do not find that privacy, as it stands now, is being gratuitously invaded in any way under the law. That still remains subject to oversight and my oversight powers as commissioner are undiminished. Certainly in all matters pertaining to privacy in this proposed legislation, as in any other, I intend to be extremely vigilant.

Senator Finestone: One might think that big brother has been watching and listening beyond the pale. Considering what Carnivore and Equinox have been doing, and now will continue do even more efficiently, you consider still that privacy is alive and well. I sincerely hope so. You are convinced that it is.

Mr. Radwanski: Senator, we live in a world where there is certainly a need for intelligence activities and a need for security activities.

Senator Finestone: I have no objection to that Mr. Radwanski.

Mr. Radwanski: As I said, I will be vigilant. If I ever find that activities nominally carried out in the name of security are being used to compile information on Canadians for any other reason, or for improper collection of information about Canadians, you may be assured that I will be not only vigilant but outspoken. That is why I am here; and that is my job.

Senator Finestone: You have certainly been outspoken on a number of occasions. Sometimes we agree with you, and sometimes we do not.

The Information Commissioner of Canada, Mr. John Reid, has some ongoing serious concerns. He noted that he requested a change of language so that the act would correspond to sections of the Privacy Act. Have you discussed his concerns with him?

Mr. Radwanski: I have not, senator. Frankly, his concerns are his, and my concerns are mine. My responsibility is to ensure that privacy is protected. That is a large job. Mr. Reid is a very able advocate for his own concerns.

Senator Finestone: Have you finally been able to speak to the Minister of Justice through an official appointment? Have you spoken around the table? How has it worked? I understand that you have been somewhat concerned about your lack of access to her personally and to a direct dialogue.

Mr. Radwanski: I was concerned about the process because I was not able to find out whether the concerns I was expressing and the recommendations I was making would be acted on. The process was such that, while there were meetings with officials - and it was entirely cooperative in that sense - it was a one-way process. I had no way of being assured whether changes to my concerns would take place. I had no choice but to ensure that my concerns were as widely articulated and known as possible.

Those concerns have been addressed, and as you know from the letter I sent to the minister, I thanked her for acting on those concerns. The path to achieve that may not have been as smooth as she or I might have wished, but it is a happy ending. That is what preoccupies me.

Senator Murray: Mr. Radwanski, when you were here on October 23, you helpfully tabled a draft amendment to address the concerns that you expressed about this bill. Your draft amendment would have restored the role of the Privacy Commissioner but continue to allow the government - the minister - to cut out the courts. You reacted with some sensitivity to my suggestion that you were attending to your own prerogatives first. I did not mean that as a criticism; that is your job.

In the event, the government has gone farther than you suggested. It not only kept your office whole, but it allowed for an appeal to the courts. I presume on their behalf as well as on your own, or on behalf of privacy, you regard this as a win and I agree with you.

I see, however, that Mr. Ken Rubin, who was mostly concerned with access to information, has filed a brief with this committee in which he discusses a process, as it affects not only the Information Commissioner but also other commissioners, such as you, Mr. Radwanski, and other officers such as the Auditor General. He says:

Even in cases where the Information and Privacy Commissioners and the Auditor General are involved may result in their being cut off if exclusion certificates are applied to their or in other related proceedings at which time they will have to drop their incomplete investigation and return records to the government. They and other parliamentary watchdogs like the Auditor General will know as little as other Canadians about certificates issued in other proceedings they are not involved in.

What do you think of that concern?

Mr. Radwanski: I do not know if I would want to explain Mr. Rubin's views, because that is not my concern. Since a certificate can only be issued after an order has been made, in the normal course of events, if it deals with a request to me for assistance to obtain access to personal information, my process would have to be completed before the individual could go to court. I am certainly not being cut out. The only scenario where I suppose that could occur is if the minister issued a certificate in some other proceeding.

Senator Murray: Yes, again it is not for me to interpret Mr. Rubin, but as I understand his point, the certificate can be couched in quite broad terms. While it may deal directly with the matter in respect of which an order has been issued, it may also scoop up or snag in its net other matters, including things that you may be investigating at the time.

Mr. Radwanski: That would only affect, in my case, the request by an individual to access personal information about himself or herself.

As I say, over the last 20 years, when there has been a security issue exemption or investigation exemption involved, it has been virtually unheard of for the individual to access that information. Therefore, this is of no practical import. I see this as the kind of thing about which one can get exercised in theory, however, in practice, that exemption, when used, has always stuck anyway. I do not see that as a huge issue.

Mr. Rubin's concern, and I do not purport to speak for him, is much more in the reality on the access to information side. There the issues are different. When a certificate is issued, since access to information is only about access to information, everything stops.

In my case, the right of access to one's personal information is important, but it is by no means the only right that is protected by the Privacy Act or by the Private Sector Act. The entire set of rules around fair information practices - the collection of information, the use of information, the disclosure of information to third parties, and use only for purposes for which collected - remain intact, even when a certificate is issued.

From my point of view, in a perfect world we would not have any changes. In a perfect world, we would not have had the events of September 11. I can live with it.

I regard the achievement as a great victory for privacy rights. There are those who would have preferred the status quo ante. I fought long and hard for what I believed was essential and for what I believed was achievable. Now, I am delighted to report that there was, from that point of view, a good outcome. That is all I can tell you.

Senator Murray: Are you concerned about the potential that exists for the minister to draft a certificate in sufficiently broad terms that it would have too broad an application?

Mr. Radwanski: I was certainly concerned about that before. For purposes affecting my part of the issue, the certificate must apply only to a specific individual, and it must apply only to the right of that individual to access information about himself or herself.

Senator Murray: It only applies to the information that person is seeking about himself or herself on that occasion?

Mr. Radwanski: That is right. By definition, it has been much constrained in the drafting. That was my objective.

Senator Murray: I have one more matter to ask about. This is not quite privacy but it is an aspect of privacy about which you will know a significant amount, as a former journalist. There is an organization called the Canadian Journalists for Free Expression. There are no names listed for the organization, and so I do not know who they are. One would assume that all journalists -

Mr. Radwanski: - are in favour of free expression? I would hope so.

Senator Murray: They express, among others, concerns that, under the preventive detention compulsion of testimonyprovisions of this bill, a journalist could easily be compelled to testify about contacts they have had with supposed terrorist entities or persons suspected of terrorism. Further to that, they speak about the public interest in maintaining the confidentiality of journalistic sources.

They are concerned about many things. The two that interest me are their concerns about the Communications Security Establishment amendments being a direct attack on the principle of confidentiality of journalist's sources. It was stated that a Canadian journalist communicating with a foreign source, would no longer be able to assure the source that his or her identity is known only to the journalist.

This is not quite under your mandate as Privacy Commissioner. I suppose it could be considered to certainly be a journalist's right, if that is what it is, to maintain the confidentiality of sources as some aspect of privacy. Since you have some professional experience and competence in this field, I invite you to comment on those concerns.

Mr. Radwanski: Senator, I very much appreciate the question. I am sure you will appreciate why I will ask your forgiveness for not answering it. That is because since I have taken on this position, I have imposed on myself the discipline that I will only comment on matters that fall within my jurisdiction as Privacy Commissioner. Frankly, there are a great many issues on which I may have an opinion as a former journalist or simply as a Canadian. However, I am not comfortable that it is an appropriate use of my position to comment on areas that are not related to privacy. Tempting as it is, I will not take this invitation to start, and I apologize for that.

Senator Fraser: I also speak as a former journalist, and one not bound by oaths of secrecy. I shall ask the commissioner if he will tell me whether he thinks my recollection is accurate. It was always my understanding that, in Canada, there is no right in law for journalists to protect sources; that, in Canada, the overriding principle has always been that the justice system should be served and, in particular, a defendant's right to a fair trial should be taken as far as it can. Therefore, unlike the United States, one cannot just go before the court and plead whichever amendment it is; you are, above all, a citizen of the country. In your recollection, Mr. Radwanski, you being also a lawyer, is that a fair position?

Mr. Radwanski: Senator, I am reminded of what a good journalist you were. You know just how to ask a question in the hopes of evincing an answer, but I am in the same dilemma I was in a moment ago.

Senator Fraser: It is not a comment. It requires just a "yes" or "no."

Mr. Radwanski: I will not be drawn into discussing issues of journalism rather than issues of privacy because it is a slippery slope. Far be it for me to quarrel with your recollections of how the rules of journalism work.

Senator Fraser: Thank you, commissioner.

This entire question of certificates and the appropriate procedures to be followed when they are issued involves, in a core sense, conflict management. The conflict in question would be a conflict between your interpretation of what needs to be kept secret and the Attorney General's view of what needs to be kept secret.

Mr. Radwanski: Actually, no. That would only arise if there were a conflict between a judge's interpretation and the Attorney General's interpretation. You do not need a certificate to stop me because I cannot order disclosure of anything. I can only express a view and that is why the certificate now will not kick in unless a judge orders it.

Senator Fraser: What I am trying to understand here is the nature of the reasoning that will be going into the various positions being adopted. I take your point that the Privacy Commissioner has already had to deal on very rare occasions with matters concerning national security. Are there any guidelines? Internally, do you have operating definitions of national security; or do you just go and do your job and wait for the government to come back and say, "No, this is national security," and then, on principle, you say, "We disagree." How does it work?

Mr. Radwanski: It does not work exactly like that. The exemption in the bill is an effect other than to court, non-debatable, non-appealable, and there is no injury test. If the relevant department invokes the exemption for national security, that is it. I am required to tell the individual that, under such and such a provision, the government may refuse to disclose information or whether information exists, if it invokes national security. I am not even able to tell you whether the information exists or not. However, if I am satisfied that if it did, the government would have the right to apply this exemption.

I do get to see the information in question. The possibility exists of me looking at it. Initially, my investigators see it and then I see it when reaches me. I can say, "Oh, for God's sake, this is silly. There is nothing here."

There could be instances where, on review of some part of the information at least that will subject it to this kind of an exemption, they agree it would really not hurt to release it, but there is no way on earth that we they will release another part of it. It could be information from one source versus information from another, whatever it might be. That happens. That is really as far as the process goes.

Senator Fraser: Assuming a case arises where you do say, "Oh, for God's sake, this is silly," that is presumably because you have in your mind some concept of what national security is. Do you have a working definition or is it one of those things that you cannot define, but you know it when you see it?

Mr. Radwanski: You pretty much know it when you see it. Without discussing the nature of some of these files - which I cannot do - it is pretty clear when you look at something and think, "Boy, that is sensitive." Other times you see something and say, "What possible difference could this make?" Sometimes, even though you do not think it could make a difference, when you look at it more carefully, it could make a difference simply because it compromises a source even if the information itself is innocuous, for example.

It is not black and white. Generally - and I have only been at this for a year and a bit - I have not seen the provisions used frivolously or excessively. I can tell you that, where I have encountered them, I would have been very surprised indeed if anyone wanted to take a different position. It is not something that is done for the fun of it. We are mostly dealing with information in the hands of CSIS or the RCMP. They are in the business of collecting security-sensitive information. It is not as if these things are being invoked across the board.

The one for an ongoing investigation can be a different matter. That is often invoked by any number of departments. Then one must look hard to determine what they mean and what information would prejudice it and so on. The security exemption is pretty seriously applied. Before the legislation was introduced, I was briefed on the things that would affect privacy. I was told that some allies - read the United States - were concerned that despite all the safeguards about exemptions and so on, there existed the hypothetical possibility that a Federal Court judge somewhere might order the release of something that should not be released. Therefore, the government wanted the certificate provision just to reassure our allies because otherwise there was a fear we might not be able to secure sensitive information. Frankly, it did not raise any alarm bells with me given my experience with this provision and what was going on.

From my point of view, the problem arose that when what was drafted went so far beyond that stated intent. I do not mean to minimize the gravity of people not being able to get some information, but the fact is it is a good law that permits people, in most circumstances, to get a great deal of information. There are some circumstances - as we all know, because privacy is not absolute - in which that would not make sense. I do not think any privacy law could be drawn in such a way as not to have that kind of exemption.

Senator Andreychuk: I wish to pick up where Senator Fraser left off. It has been some time since I reviewed the Privacy Act. Are you saying that in situations of national security you are satisfied that you get to see all the information that CSIS, the RCMP or the Communications Security Establishment have; it is only that it is covered by the security blanket and you cannot release it to the client?

Mr. Radwanski: That is correct.

Senator Andreychuk: It was my understanding that under the present act you proceed on the basis of trust that the act is being applied as it should on the other side, that they are giving you all the files, and that you have no way of verifying that.

Mr. Radwanski: That is not correct. My investigators have the right to access anything they need to in order to carry out an investigation. Theoretically, we could exercise a search warrant and compel testimony under oath. Our experience has been that we get the information. Since we cannot release it, why would they bother hiding it from us? We can do nothing with it other than recommend, and we are security cleared.

Senator Andreychuk: You are saying there is a procedure whereby you request all information.

Mr. Radwanski: Pertinent to that individual.

Senator Andreychuk: There is an undertaking that they have given it to you?

Mr. Radwanski: Yes. Given that I am not in a position to do anything with it other than express my views to them, and I am security cleared to the highest level, there is no reason for them to do otherwise. There is no advantage to hiding it from us.

My predecessor conducted an audit of the CSE and fully examined exactly what they were doing, collecting and so forth, as we are entitled to do.

Senator Andreychuk: You are saying that with the amendments you have been reinstated to virtually the same position with respect to certificates for anti-terrorism?

Mr. Radwanski: There is no such thing as a certificate for anti-terrorism, however, I do not feel that the role of the Privacy Commissioner has been, in a practical sense, substantially diminished.

Senator Andreychuk: You said that under the present system, when you do see this information it is used sparingly and that it is the type of information that anyone would deem to be of national security. You did not quite answer as to on what basis you come to that conclusion. What body of law do you turn to to make that statement?

Mr. Radwanski: It is based on common sense. You look at these files and see that they refer, for instance, to contacts between one individual and other individuals; you see reference to confidential informants who, by their nature, touch on security; you see descriptions of information obtained from other jurisdictions. Frankly, it is not rocket science to say that "this is highly sensitive and touches on national security." It is really as simple as that, senator.

Senator Andreychuk: Would you agree that your task will be somewhat different under this bill? We have a significant amount of literature, understanding and analysis on what national security is and is not. We are now confronted with something called "terrorism." We are struggling here to define it and to determine how to deal with it. We are giving broad powers to government. Your office will be reinstated to do the things it does, but this whole body of circumstance that would allow a minister to request and get a certificate will be an entirely new field.

Mr. Radwanski: Exactly. That is why I fought so hard to ensure that the oversight role of my office with regard to privacy rights in these matters, including the right to access information about oneself, was not diminished or truncated. It is essential that the Privacy Commissioner be able to observe how these exclusions and power are used with regard to this new concept of terrorism and to be able, - without disclosing details - to tell this committee or Parliament that there is a problem because they are going far afield and invoking the concept excessively, for example. It is important for me to be able to do that, should it become necessary.

I agree that we are into new ground. Over these past weeks, the structure of the Privacy Commissioner working behind the scenes while being able to publicly express concerns as vehemently as necessary has been tested. It works and I am glad of it.

Senator Andreychuk: You are saying that you will exercise your powers under the Privacy Act to analyze how the government will utilize these powers in the future.

Mr. Radwanski: I would certainly raise any concerns. I do not know that I would do ongoing analyses generally. If I see something that is not respectful of rights as guaranteed under the law, or even that is not faithful to the spirit of rights, I make it known at the earliest opportunity. Whether I would put that under the rubric of doing ongoing analyses as such, I may have to or I may not. Circumstances will determine that.

Senator Andreychuk: It would be in those cases that you would be directly involved and not in all cases?

Mr. Radwanski: If I am not involved, I probably would not know about it.

Senator Andreychuk: Further to Senator Finestone's question, when you look at it from the individual's point of view, that is some measure of assurance you will be looking at, but not necessarily a full answer for the individual.

Mr. Radwanski: There are also circumstances in which the individual just will not get the information, as is the case now. However, systemically I can look at it on an individual basis. I can also carry out audits, if necessary, to ensure privacy rights are being respected. I have a full range of very significant powers in that regard.

Senator Tkachuk: Mr. Radwanski, you seemed to be saying, both at the beginning of your informal statement and in response to the first number of questions, that you support the amendments with the caveat of, to use your words, "state of emergency" and "unusual circumstances." Would you support the provisions of this bill if there were no unusual circumstances or emergency?

Mr. Radwanski: That is somewhat in the category of what Mr. Trudeau used to say, "If Grandma had wheels, she would be a trolley bus." We are in a state of emergency. There is a new reality with regard to terrorism. It depends on what provision. For instance, expecting CSE to hang up if a threat to national security contacts Canada does not make much sense. I support that because it makes sense.

Without recent developments, would there be the kind of concern there is on the part of other countries about the sensitivity of information such that they required reassurance of the certificate provision? I do not know the answer to that. If someone had demonstrated to me that there was an issue, that this particular potential loophole was impeding other legitimate security activities, I might have said, "Okay, that makes sense." If there was not a reason, I would not have agreed. It is a function of the circumstances that we face.

Senator Tkachuk: Let us take away September 11. Do you support the provisions of this bill if that event had not happened?

Mr. Radwanski: I do not know how to answer that because I do not know how to take away September 11, senator. It has changed the reality in which we operate.

Senator Tkachuk: I do not know how to take away the nuclear bomb that fell on Hiroshima either, but we have. We overcame the Second World War. We have gone on. Many people fear this bill.

I am not asking you to comment on what happened. I am simply asking that if the events of September 11 had not happened, would you support the provisions of this bill?

Mr. Radwanski: I am not trying to fence with you, senator. I have analyzed that obviously. All my thinking about it has been in the context of the circumstance that we face. It is an interesting question.

With respect to privacy - and I repeat I neither support nor do not support the other parts of the bill - I do not think that there is anything in those provisions as they now stand that so offends the general balance between privacy and security that I would be moved to object vehemently.

Senator Tkachuk: Even certificates are not a concern in normal times to you?

Mr. Radwanski: As it is set up, no. Even if there were no terrorists, if the concern were that some information is so sensitive the possibility of its disclosure could dry up access to information important to Canada's security, given how rarely the recourse to the court is used any way, I simply do not regard that use of certificates, as it stands, as a huge issue. It may be more so on the access to information side. However, I cannot comment on that because it could be more broadly drawn.

On the privacy side - I do not mean to seem cavalier - but I do not see it as a huge problem in practical, realistic terms, given how thorough the exclusions are any way for security and how generally they hold.

Senator Tkachuk: I am asking these questions because of the concern to us as parliamentarians that this bill is becoming a permanent part of our legal landscape. The government has been reluctant to declare a state of emergency or a state of war. As far as the government is concerned, we are acting under normal circumstances, and these provisions are here forever.

Mr. Radwanski: I understand that, senator. I expressed concern about sunset laws in my previous communication to the minister. My concern was that the provisions as they were drafted would be intolerable for five years, three years or two months. My concern was that the government might determine that there could be sunset laws, and we would basically have the potential of having privacy rights wiped out with the stroke of a pen for five years. That would have been untenable.

On the provisions that touch directly on privacy, I am not opposed to sunset laws, but I would have trouble making the argument that these provisions will not make sense in the future as well. They simply tighten some gaps or remove what might be some anomalies in terms of the intent of protecting security.

I certainly would not campaign for a sunset law for those provisions. If every terrorist were wiped out tomorrow, there could still be other issues of security where those same provisions would continue to make sense with regard to privacy.

Senator Beaudoin: My question is on proposed sections 38.13 and 38.131 of the Canada Evidence Act.

I am quite pleased to see that there is a possibility of a review of the certificate before the court. I have been asking for this since the beginning.

It is always one judge, even if he is selected at the Court of Appeal level. Sometimes it is Federal Court Trial division and sometimes it is Federal Court Appeal division. Is there a reason for that?

Mr. Radwanski: Senator, I apologize, you would have to put that question to the justice department. I have no idea. I was not pushing the issue of review, as you know. I was addressing these other issues.

My understanding was that the government's entire purpose, certainly on the areas under my jurisdiction, was to avoid any possibility of an exemption being overruled by a judge.

I thought that was a given. My concern was to circumscribe the provisions as narrowly as possible. They have gone further and provided review. That is great. Why they did it this way, versus some other way, I simply have no idea.

Senator Beaudoin: I will certainly ask that question of the officials.

Mr. Radwanski: I cannot speculate. I have not been involved in discussions on that point.

Senator Beaudoin: Even if you did not propose it, I understand, you do not object?

Mr. Radwanski: Of course not. The more scrutiny there is by the courts of any intrusion on rights, the better. I am certainly happy with that. I thought the government was determined precisely to close that avenue of judicial review. If they are willing to allow it, that is even better. That makes the certificates even less of a factor than they were otherwise, and that is good.

Senator Beaudoin: I understand that it is very good. The judge would consider the application as soon as reasonably possible, but not later than 10 days. To use an expression, it fits in your assessment.

Mr. Radwanski: Sure, it is a very welcome safeguard.

Senator Bryden: With respect to the amended bill, am I correct in saying that the device used by the drafters of the bill to satisfy this committee's concern - as brought to our attention by you - relating to what happened in the former bill in the Privacy Act, was done by leaving your role alone and making the certificate changes in the Canada Evidence Act?

Mr. Radwanski: That is certainly a part of it. They also narrowed the scope, in the amendments to the Privacy Act, by making clear that the certificate would be pertaining to occasions about a specific individual. They also made clear that where a certificate was issued, only the provisions of the bill dealing with the right of individuals to access their personal information would not apply, so that everything else would remain intact.

There were several different steps. I asked for a number of amendments, and I received them all.

Senator Bryden: It went from your recommendation, to an order of the court, to the issuance of the certificate, and then to the right to appeal before the single judge.

In addition to that, there were some bonuses that you wanted. One of them was that the certificates be published in the Canada Gazette, which is a valuable thing.

Clause 104 sets out some extensive amendments to section 70.1 of the Privacy Act, I believe in clause 104, in relation to how you conduct yourself or your office when a certificate that relates to an individual or an order is in place under proposed section 38.13 of the Canada Evidence Act. Could you take a minute to explain what the import of that is from the point of view of the operation of your office?

Mr. Radwanski: The import is fairly limited, really. There was a concern, of which I was not aware until it arose, that there not be an endless array of potential people who could have access to such sensitive information. I was required to limit the number to four delegates, which is not a problem. Obviously, once the certificate is issued, I am expected to return the information within the reasonable period of 10 days. Again, that is not a problem.

I would not characterize this as much of a change in the operation of my office. I would characterize these asconsequential amendments, given what they were trying to achieve.

Senator Bryden: What they were trying to do under the Canada Evidence Act?

Mr. Radwanski: That is correct.

Senator Murray: I have one question that was alluded to in either a previous question or in a previous answer. I would like to be clear about the process. When, notwithstanding your advice, the government insists on non-disclosure of the personal information of an individual to that individual and the government proceeds to court with a view to obtaining a certificate, may we be assured that your office will always be there in defence of the proposition that the information, or whatever part of the information you have already recommended, should be released? Will you be there in court on behalf of the claimant or the applicant?

Mr. Radwanski: If it is my view that the information should not be subject to that exemption, I would want to take the opportunity to share that with the court.

Senator Murray: I note that we have some new colleagues here today, and that senators Kenny, Stollery and Bacon have been replaced. While I welcome our new colleagues, I am certain that all honourable senators would like to join me in expressing our appreciation to senators Stollery, Kenny and Bacon for their constructive contributions to our previous deliberations.

The Chairman: Absolutely, Senator Murray. We all know that senators Kenny, Stollery and Bacon are also chairs of other Senate committees and so are also in the grip of other pending legislation. Indeed, we thank them and we welcome our new colleagues.

Senator Finestone: I was pleased to hear your answer to Senator Murray's question. Do you see as a mandate, the responsibility to appear to defend your opinion if it differs from that of the Attorney General?

Mr. Radwanski: My mandate, always, is to protect and champion the privacy rights of Canadians in any matter. My mandate is to do whatever I think is necessary to champion those rights to the maximum. If that entails court, certainly I will go to court, as I have in other matters.

Senator Finestone: I do not know whether the entire question of computers, the implication of encryption, or the issue of whistle-blowing come into play. I regret that Senator Kinsella is not here to provide us with his opinion about such a concern. It may be that it is actually a secret concern or a secret issue. Would a whistle-blowing issue come to your attention first?

Mr. Radwanski: I honestly do not know. If would depend entirely on the circumstances. I cannot speculate. If it came to my attention, and it entailed an issue of privacy rights, my staff and I would certainly address it.

Senator Finestone: The same thing can occur in respect of encryption. There are so many people working at home and encryption of their information is often an important aspect. If the RCMP or CSIS is investigating that person and they want access to that encrypted information, is that considered, under the Privacy Act, an invasion of personal privacy? Can they insist that a person open up the encrypted information?

Mr. Radwanski: I would really have to look at it more carefully. Off the top of my head, if they have a warrant, then they are entitled to the information in a form of response to the warrant. Beyond that, there are so many variables that one would have to look at a specific case. I could not give you anex cathedra pronouncement.

Senator Finestone: What happens if that person disagrees with the warrant, saying it is an invasion of their personal privacy and comes to you with that complaint?

Mr. Radwanski: A warrant is for the courts to issue. I cannot second-guess warrants.

Senator Lynch-Staunton: Is there anything in this bill and in the amendments that concern us today that would prohibit the minister from issuing a certificate even before information is requested?

Mr. Radwanski: Yes. It states that the minister may issue a certificate at any time after an order to disclose is made.

Senator Lynch-Staunton: What does that mean, "an order to disclose"?

Mr. Radwanski: To make an order by a court or another body that has order-making powers - which is not I by the way. It can only issue the certificate after there is an order to disclose. It cannot issue a certificate when something is being investigated.

Senator Lynch-Staunton: In the original amendment, that was one of your main objections.

Mr. Radwanski: It could have been issued at any time.

Senator Lynch-Staunton: Yes, at any time, anywhere, and on anything.

Mr. Radwanski: That has been fixed, as well. The process must wind its way to that point, before they can issue that certificate.

Senator Murray: To what point?

Mr. Radwanski: To the point where an order is issued or another competent authority or tribunal issues the warrant.

Senator Murray: I thought that as soon as a complaint was filed, the certificate would be issued.

Mr. Radwanski: No.

Senator Murray: That only happens after the filing of a complaint.

Mr. Radwanski: No, it happens after the issuance of an order.

Senator Lynch-Staunton: Does anyone have any idea what clause that is in? Do you have a number?

Mr. Radwanski: I do not have the bill before me.

Senator Lynch-Staunton: It is on page 91, proposed section 38.13: "The certificate may only be issued after an order or decision that would result ..."

There are amendments to the Privacy Act in the bill. Then, it digresses, and so becomes somewhat confusing. When you are finished here, could I hire you as a consultant on how to get amendments through?

Mr. Radwanski: Perhaps you could also hire me as a consultant on how not to get a certain amendment through.

With your indulgence, senator, there is one other matter I wanted to raise with this committee because I have not been asked it so far. I wish to ensure that I do not fail to address it. I know that this committee recommended the creation of a new officer of Parliament to oversee all this.

With regard to the matters that are under the jurisdiction of the Privacy Commissioner, I must tell you that I would be as vehemently opposed to that as I was to these amendments that I had to take issue with. The reason is that there is oversight of privacy matters by an officer of Parliament. It is by an officer of Parliament who has a long-established office with an expert staff, including the best privacy expert lawyers, trained investigators, some of whom have been at this for 20 years, and policy analysts who have been at this for 20 years. To give a part of that oversight to a new officer of Parliament, with presumably other duties as well, would create either a fragmentation of oversight roles, which would weaken oversight; or it would create a hierarchy of officers of Parliament, which in my view would be untenable.

I wanted to put that clearly on the record since it was a recommendation of your committee. It may have bearing on other fields that have nothing to do with the privacy issue. However, were you to go there, I would certainly very much want that it to be clear that this would be oversight only in those areas that are not already under the oversight of an officer of Parliament.

Senator Murray: We appreciate that, Madam Chair. For my part, I agree with it. The fact of the matter is there is another oversight body: the Security Intelligence Review Committee, which has oversight over CSIS.

Our problem, of course, in seeking a parliamentary officer to monitor the exercise of these other powers, and blow the whistle where there is abuse, is that the SIRC's mandate is limited and the mandate of our friend, the Privacy Commissioner, is also limited to matters under his jurisdiction.

Mr. Radwanski: We have oversight over the CSE, senator. That is an internal process that they have, but it does not mitigate our right of oversight over their activities from a point of view of ensuring that they obey privacy laws.

Senator Murray: The powers that CSE will have, and the other powers that are given to the government, to the police and the security agencies, would need oversight and a parliamentary commissioner for that purpose. We understand the desirability of building some fences around it when it comes to that. We thank you.

Senator Lynch-Staunton: Had the bill not been amended, would your feelings about parliamentary oversight be the same, since everything was stripped from you?

Mr. Radwanski: I would have still argued that my office was the only appropriate authority to oversee privacy.

Senator Lynch-Staunton: The bill was taking everything away from you.

Mr. Radwanski: I opposed it.

Senator Lynch-Staunton: I know, but that was not my question. Had the bill not been amended, would your position be the same? Some kind of oversight was essential. That is why the recommendation made was under the original bill.

Mr. Radwanski: I understand. Had that been the case, I would have argued that that was flim-flam because such oversight could not have replaced the oversight of an expert body.

Senator Lynch-Staunton: I see your argument from that point of view. Thank you.

The Chairman: Thank you very much, Mr. Radwanski. It is always a pleasure to have you here. We thank you very much for your comments today.

The committee adjourned.