Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 3 - Evidence - March 18, 2004
OTTAWA, Thursday, March 18, 2004
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-7, to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety, met this day at 10:47 a.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: I wish to welcome our witnesses and members of the public to this meeting of the Standing Senate Committee on Transport and Communications.
[Translation]
We are resuming our consideration of Bill C-7, the Public Safety Act, 2002. Today we have a full schedule. I would encourage both our witnesses and senators to remain focused, particularly during their questions and responses. In so doing we will be able to elucidate complex questions, which is the objective of committee hearings.
[English]
Our first witness this morning is Commissioner Giuliano Zaccardelli, from the Royal Canadian Mounted Police. He is accompanied by Inspector Wayne Hanniman, the project coordinator for this bill at the RCMP; and by Mr. Mark Scrivens, the legal counsel.
Thank you very much for being here, gentlemen. You know the drill. You make an opening statement and then we put questions to you. I assume you will be making the statement, Mr. Zaccardelli?
Mr. Giuliano Zaccardelli, Commissioner, Royal Canadian Mounted Police: Yes, I am. Thank you very much for inviting us to be here. It is always a pleasure to appear before committees of the Senate.
[Translation]
I am pleased to be given the opportunity to speak about the role the RCMP will play in the implementation of Bill C-7 and in particular section 4.82.
[English]
The terrorist attacks on the passenger train system in Madrid, Spain last week shows that transportation systems will continue to be used as targets by those who would use the deaths of innocent people and wide-scale destruction to achieve their goals.
Our own transportation systems, particularly our commercial aviation system, are still vulnerable to such attacks. While we have improved the screening of articles that passengers take on board aircraft, we have not improved the screening process of the people who board the aircraft.
We are seeing a global trend toward advanced passenger information programs and passenger name record programs. Israel, Australia and the United States have systems in place. The G8 countries have set up a working group to examine ways of improving aircraft security, including matching passenger names against their national security and law enforcement databases.
[Translation]
The RCMP is committed to ensuring safety and security for all Canadians at home and when travelling. We are committed to seeing that this proposed legislation is implemented in keeping with its spirit and intent which is above all else — transportation security.
[English]
Also in keeping with the spirit and intent of this proposed legislation, the Royal Canadian Mounted Police will safeguard the privacy of air passengers and will share information only when a specific threat to transportation security exists.
Bill C-7, by way of the provisions set out in proposed section 4.82, enables the RCMP to identify individuals who may be terrorists or who otherwise pose a threat to the Canadian air travelling public.
To prevent in-flight incidents, including threats faced by our aircraft protective officers, law enforcement authorities must take pre-emptive measures and be given the tools to properly carry out those duties.
[Translation]
Bill C-7 will not grant the RCMP new powers, it will simply give us access to crucial air passenger information that we do not presently have.
[English]
The RCMP possesses information in its data banks that can be used to identify threats to aircraft passenger safety, but the only way this information can be used effectively is to do a comparison with passenger information. The RCMP is able to manually check passenger data as the result of a specific threat. However, these manual queries are time-consuming and labour-intensive and may not give the RCMP sufficient time to take pre-emptive action.
The intent of the proposed legislation is to provide the RCMP with access to air passenger information for transportation security purposes. Accordingly, the RCMP will only match air passenger information against information that is relevant to transportation security. These records will be compiled into a subset and the passenger information will be matched against this subset by an automated process. Only if there is a match between an air passenger and the records in the subset will an RCMP employee, designated by me to receive air passenger information, use all the information under the control of the RCMP to verify the accuracy of the match and the threat.
[Translation]
The data matching exercise will aim to be effective both in time and cost, while avoiding disruptions to the Canadian travelling public. The manual verification will always be made before any action is taken.
[English]
As custodians of private information on airline passengers, the RCMP will fully comply with privacy legislation and will share information on specific individuals only when a specific threat exists and transportation security is at risk.
The RCMP also endorses the concept of formal information-sharing agreements with other Canadian and international agencies where air passenger information is confined and restricted to those agencies dealing with the specific threat.
[Translation]
I will be happy to answer any questions you may have.
[English]
Senator Andreychuk: What will Bill C-7 give you that you do not already have by way of other legislation to gather information for the purposes of thwarting terrorist attacks?
Mr. Zaccardelli: As I said in my opening statement, Senator Andreychuk, we can do the manual matching now when we have information on a possible threat. However, we do not have automatic access to the passenger list, nor the ability to use technology to compare that list against a restricted subset. That is what we need to do. We can be reactive now, but certain situations require us to act much quicker.
There are people travelling on our airplanes who pose potential threats that we are not aware of right now. This bill will enable us to use information to identify those people and take the appropriate action, if necessary.
Senator Andreychuk: The best protection Canadians could have is a combined, coordinated, cohesive intelligence process in Canada that would be ready, to the extent possible, to face terrorism. As you quite rightly pointed out, the terrorist attack in Madrid was not on an airplane; it was another system. I do not rule it out that once we start gearing efforts towards metro systems and subway systems, it will be something else. It could be a rally or a football game. I want to know that you are acting on information long before you see those lists.
Mr. Zaccardelli: That is an excellent point. Law enforcement and security work is done in an intelligence-led, proactive way. The key is to obtain the intelligence early enough to prevent acts from taking place. That is the premise on which everything is based today. That is done in a coordinated way right across the systems, recognizing that there are privacy issues in other legislation that must be respected. The challenge is always to find that balance. I referred to the protocols that will be required with our partners, not just in Canada but also outside the United States. There is not simply a sharing of information without parameters or guidelines. The parameters will be established in the protocols. However, the key is to have the information early so we can act in a proactive way.
This is only one tool. I realize this is the airline industry, but you are right, every mode of transportation can potentially be the target of an attack. We have not forgotten those. This is simply one in a variety of tools to tackle a serious problem.
Senator Andreychuk: It is one tool for one purpose. When I fly, you will obtain data about me. I may not know you have that data and I will not know what you are doing with it. Are the data assessed only for the purposes of that one flight? If there is some reason to believe I am a terrorist, my data will go into a data bank that is shared with others. How long are those data stored? What assurance do I have that the privacy measures are respected? I do not have time to identify those measures for you, but I am sure you know the clauses. What assurance do I have that my name will not stay on the list longer than required for assessment? How do I know that the authorities that have access to my information will use it only for the purposes of thwarting terrorist activity?
Mr. Zaccardelli: Again, those are excellent points, senator. The proposed legislation is very clear. We are talking about major threats to airline security. The information we can get is limited. If you are not considered a serious terrorist or criminal threat, you simply will not register. The exchange of information will be done electronically. Only the names of those people identified as threats will surface.
We do not match a name against all our databases. We examine your name only against the subset that covers the most serious offences.
If there is something in the data bank, then we do what we normally do. We will manually examine that and determine what action should be taken.
The proposed legislation is clear on the retention of the information. Certain information is retained for 24 hours and certain information is retained for seven days, et cetera. There is a yearly review. There are strict guidelines in terms of who has access. Only people specifically designated by me as the commissioner can have access to that information. There is a very rigid system in place to control that.
People who have any complaint or concern can avail themselves of a series of people and organizations, like the public complaints commission or the Privacy Commissioner, if they feel they have been unfairly dealt with by the authorities under this proposed legislation.
I believe there is a fair balance, senator, between ensuring we only receive information on people who are real, serious threats, and the strict controls on the use and retention of that information.
Senator Andreychuk: What if my name appears on that list? How does one know that and how does one go about clearing one's name, for example, after having been identified as a terrorist because of having a common name like John Smith or Lee and it is in the data bank? There does not seem to be any parliamentary scrutiny or assurance that these names are purged and used only for that purpose once they get into the data bank. How do I defend myself? How does Parliament?
Mr. Zaccardelli: Ultimately, I am accountable to my minister, and through the minister, to Parliament. Parliament calls me before various committees to account for how I run the RCMP and manage their funds. There are various mechanisms by which I am held accountable.
Your name will only surface, senator, if you have been identified as a serious terrorist or criminal threat. Otherwise, you may be the subject of minor investigations, which will never come out because that is the way the system is set up. If your name surfaces, obviously, you will be a serious concern to the authorities and you will be approached about that. It is not simply the surfacing of the name that will make you a subject of investigation. We will do a manual check. We will then involve the authorities, whether federal or local, in an investigation, and you will be spoken to or the appropriate investigative measures will be taken. You will know that you have been the subject of an investigation. Once you are approached, you will know about that.
You may not be approached, and if you are not, it means you are not the subject of an inquiry and your name will not surface. It will be automatically destroyed within 24 hours and no one will see it. It is a technological exchange of information. There is no connection. Your name does not stay in the record.
Senator Andreychuk: You say I will be approached. There is no mandatory or inferential provision in this bill that the names will be purged. You are saying that if I am a suspect, I will be approached in the normal investigative process. I am talking about people who are not terrorists, but you think they are, and you start sharing information with legitimate authorities in Canada, the United States and France, only to find out later there was no substance to any of it. My name is now damaged. My reputation is damaged. My freedom may have been taken away. At what point do I at least get the right to fight back?
Mr. Zaccardelli: First, the purging takes place. As I said, every seven days, the information is automatically purged. Depending on the circumstances of the case, there might be a need to retain and share that information. As I said, there are protocols that deal with the exchange of information.
That is no different from any other investigation that is undertaken by authorities. We regularly share information with other agencies in Canada and around the world to do our work, to keep Canada and Canadians as safe as we possibly can. That information is shared and retained. That is what we do.
You will be aware of that. Obviously, we are accountable for how we use that information.
Senator Andreychuk: I think the Auditor General has pointed out that the level of accountability in our law enforcement systems is too variable. There is no continuous oversight. In some cases there is oversight, and in others there is not. It is not that we question you. It is a question of good governance. That troubles me.
The other thing is that this is where good police work targets and traps people, sometimes innocently, in a sphere of activity. It could be that I took a plane and I could find myself falsely accused on that, being held for seven days, or longer, with my information going somewhere else. I do not see any parliamentary scrutiny sufficient to overcome that.
I understand police work. You find suspects. You find a suspicious area or a linkage or you get information and you go on that trail. That is good police work. Surely, the act of stepping onto a plane should not make all of us vulnerable to the extent that there is no way to counter that, to know that we were not on the list, or that the list is being purged and is not continuously used. It seems to me we have not put in place the appropriate oversight functions to assure citizens that while you continue your good law enforcement work, we are not negligently or inappropriately targeted when all you are getting is a name and a date of birth.
Mr. Zaccardelli: I can assure you that stepping onto a plane, senator, if you are not involved in terrorist activity or a serious criminal, will not bring you to the attention of anyone. The only thing that will bring you to our attention is if you are involved with terrorism or serious criminal activity. Otherwise, the names never surface. They never come to our attention and they are never looked at.
You made some statements. You said the police "trap.'' I do not like that word. We do not trap people.
Senator Andreychuk: I said "track,'' not "trap.'' That may have been a Freudian slip.
Mr. Zaccardelli: The proposed legislation provides for appropriate balances. There are checks and balances in the system. We account to the courts and to the minister, every day, for what we do and how we do it. We have oversight committees. We have oversight groups. You mentioned that the Auditor General says there is uneven monitoring, et cetera. I am not sure anything is wrong with that because we have a whole series of different types of organizations, and to apply one type of supervision or oversight to all of them may not be the best answer. You may need certain types of oversight for certain organizations while others may need other types. I know we are looking at some other oversight mechanisms already. I would venture to say that there is a lot of oversight of police activity, as there should be, because we have powers and authorities that the average citizen does not. We are always looking for that elusive balance.
Senator Jaffer: Before I start, I want to take this opportunity to congratulate you for the work you are doing internationally. Senator Andreychuk and I were in Sierra Leone, where you had sent a diversity officer to work. I commend you for that. My colleagues do not know this, but you know that I am working to get some of your forces to Sudan to help with the police force there. I commend you for that.
When you appeared in front of us on Bill C-36, you had indicated that you had sufficient tools to carry out your work, and I understand from what you were just saying to Senator Andreychuk that you now need the additional tool to hasten your work. Are you saying that? You have the tools, but this will make it faster. Is that correct?
Mr. Zaccardelli: We believe this is a necessary tool to enable us to enhance the security of the airline transportation system and of the people who travel on that system. This is not just in Canada, this is not just the RCMP, but, as I said in my statement, this is really an international movement. Many countries have moved in this direction. The G8 countries are working on this. As you know, especially in the case of our American counterparts, they already have this information. They get it from the airlines. Without this, we would literally be in a position where, especially vis-à-vis the Americans, they would have information about Canadians travellers that we do not, and then we would be getting requests to help them investigate, which would put us in a very difficult situation. However, that is not the reason we need this. The reason we need this is to enhance the security of the flying public.
Senator Jaffer: Commissioner, last time you were before the committee, on Bill C-36, you stated that — and I am quoting you now — "On the point of racial profiling, we do not racially profile.'' Is that still your department's position?
Mr. Zaccardelli: Absolutely, yes.
Senator Jaffer: My concern is that I have been involved in round tables right across the country where people from your police force have said to me that they are being sent to California to train in racial profiling. Is that not correct information that they are giving me?
Mr. Zaccardelli: Absolutely not. There is no such thing. We do not do racial profiling and I am certainly not aware of any RCMP members going to the United States to learn how, because I do not know of any law enforcement or other agency in the United States that actually supports that.
Senator Jaffer: I can give it to you.
Mr. Zaccardelli: I would love to have that information.
Senator Jaffer: I will have to ask their permission, but I can tell you that in a number of places I visited they told me that they have been trained in racial profiling. I will speak to these officers.
Mr. Zaccardelli: I wish to clarify something. We do profiling in a number of things. We profile criminals, we do geographic profiling in terms of patterns of criminal activity, et cetera. We do profiling; however, we do not do racial profiling.
Senator Jaffer: My colleagues will ask you some other questions, but what is very important from where I sit is that there be trust in the community, and for you to do the kind of work that you do, you have to build that trust. Canada includes people who look like Senator Phalen and who look like me. What are you doing after Bill C-36 to build trust within the community?
Mr. Zaccardelli: Senator, I am glad you asked that question because I think we have done a lot.
In every province where we work we have a program whereby dedicated police officers have been mandated to go out and actually meet with all kinds of groups and Canadians of different backgrounds, for example, the Muslim community. We have been to mosques. We have had religious leaders come to our training sessions. I personally held a town hall meeting in Toronto a year and a half ago with over 500 visible minorities, many of them Muslims.
Senator Jaffer: Was that the last time you had a meeting with Muslims?
Mr. Zaccardelli: No. On January 2, I spoke to the 9,000 Muslims who met in Toronto. Some people actually questioned whether I should. I went there and we talked about these issues. There is no easy way to build trust and I accept that there are people in visible minority communities who believe we do profiling. I accept that that is their view, so we meet with them. I do not reject the fact that they are concerned. We have to talk about these things and we have to meet with these people. I know other police forces and other police chiefs are trying to do the same thing. We are doing it on a constant basis.
We have a national advisory committee of visible minorities, which includes Muslims. I meet with them on a regular basis. They represent every part of Canada. I meet with them so they can advise me on how we can provide better service to them and understand them better.
Is it perfect? Could we do more? We probably could, but I am proud of what we are doing.
Senator Jaffer: Commissioner, I am also proud of the work you do. Yesterday there were two reports from Toronto about racial profiling, and we all know about DWB, "driving while you are brown or black,'' and the profiling that happens there. I find it difficult to accept when you say there is no racial profiling because that is not what your officers are saying, and that is not what a lot of people I meet with are saying.
Mr. Zaccardelli: I really want to know if you have information on officers in the RCMP who say that we do racial profiling. I would really like that information before I leave here today because that is very serious.
Senator Jaffer: I cannot give it to you because I do not want to jeopardize their work, but I can tell you that I met with them and they told me that they were sent to California to do training in racial profiling.
The Chairman: Thank you, Senator Jaffer.
I think clearly there is some follow-up to be done on that, which is not directly connected to this bill, but it is a very serious issue, Mr. Zaccardelli, and I would appreciate any further background material you can furnish — in particular, if you are sending people to California for training of any kind, what is it?
Mr. Zaccardelli: We are not sending anyone to California — I want to make that clear — and if they are going there I certainly am not aware of it. I have no knowledge of that and no one has ever brought that to my attention. I would like the information as soon as possible and I would rather not leave here without it. I cannot act if I do not get information. With all due respect, senator, I know you are concerned about what the members are saying, but I am assuming they would want this clarified also, because if they told you about it they would want to make an issue of it. I am very concerned and it is very disturbing because there is no such policy, and I believe I have made my point here.
Senator Phalen: I want to go back to Senator Andreychuk's questions to clarify something. I believe it is correct to say that other countries may request airline passenger information if the flight is to land in that country. Under what conditions can airlines disclose information to governments or organizations in other countries? Is it automatic — you fly into our country; you give us the information?
Mr. Zaccardelli: Every country has their own rules in terms of allowing people entry. The United States wants certain information, so you provide that information and then they make a decision as to whether to allow you in or not.
Senator Phalen: Are there any safeguards on the use, disclosure and retention of the information when it is disclosed to another country?
Mr. Zaccardelli: Senator, this is why I mentioned the need for the protocols. The protocols will lay out the terms of the exchange, how it is done and what will be done with the information, et cetera. We have hundreds of protocols with many countries on similar types of things. We are constantly exchanging information in doing law enforcement in a whole variety of areas, and those protocols guide the exchange and the use of the information. By and large, those protocols are respected and honoured. I am not saying there has never been an abuse, a potential misuse or a mistake made with the use of that information. However, we do not exchange information with the people we work with on a regular basis, whether it is the Americans, the Europeans, other countries around the world, unless we are assured that the use is consistent. That means it is required to be exchanged for the advancement of the investigation, and that we are assured that that information is not misused.
Senator Phalen: Do the airlines release the information themselves or does it go through you, or are you aware that the information is requested?
Mr. Zaccardelli: In respect to what, the information we would get under Bill C-7?
Senator Phalen: Yes.
Mr. Zaccardelli: That would come from the airlines, to us, through a technological system.
Senator Phalen: If another country requested it, who releases it?
Mr. Zaccardelli: Do you mean if another country requested it of us?
Senator Phalen: If another country requested it of the airline that releases that information.
Mr. Zaccardelli: The airline would have to make the decision on whether they want to release it to that country.
I am sorry, senator, did I answer your question?
Senator Phalen: There is another party here. I can understand the RCMP releasing information to another country with respect to the passengers on an airline.
Mr. Zaccardelli: We do not release information about passengers on airlines. We only release information, on a case-by-case basis, about a particular person that we may have an interest in on a particular flight. For example, if a person surfaced in the system that we would put into place under Bill C-7, and we had a serious concern about that person and felt it necessary to exchange that information with another country, then we would do it on a case-by-case basis that would be covered by a protocol.
Senator Phalen: The airline can release that information on the request of another country; is that correct?
Mr. Zaccardelli: If they choose to do so, yes.
The Chairman: We will be hearing from the airlines next week, Senator Phalen. That is probably a good line to pursue with them.
Senator Graham: I would like to say at the outset, as a Canadian, I am very proud of the work that the RCMP does. Perhaps you could tell us how you co-operate or interact with CSIS in matters of this kind.
Mr. Zaccardelli: That is a good question, senator. As you know, CSIS will have their own system to access this information. There are protocols between CSIS and the RCMP for the exchange of information, because we do not automatically have access to their data banks and vice versa.
Through their data banks or the information they have, if they believe there is somebody of interest to them who may be involved in a criminal matter, they will then share that information with us and we will act upon it. If it deals with the security of an airline or passengers on an airline or a threat to the airline, we will take the appropriate law enforcement actions that are required to neutralize the threat or render that situation safe.
There is a close working relationship between CSIS and the RCMP. However, we only get information if there is a need for us to be involved from a criminal perspective. We do not get their information, nor do they get ours, automatically. If something surfaces in our data banks that they should have an interest in, we share that with them, and they will share certain things with us. It is not 100-per-cent access to each other's information.
Senator Graham: The former privacy commissioner spoke about the number of common names there are in Canada. He cited as an example that he had identified 200 Paul Martins, and as we know, there is only one.
In my part of the country, Nova Scotia, you can imagine how many John MacDonalds there are, John R., John A., et cetera. I cite the example of finding another Al Graham when I was on a pre-election monitoring assignment in Pakistan. I was getting off a plane to change flights and was apprehended by the authorities and taken into temporary custody because "Al Graham'' was in a data bank as a trafficker in drugs. It took some time to clear that up.
In that kind of instance, would that information filter across the ocean into your system? Should I be worried? That occurred in 1993.
Mr. Zaccardelli: I am not saying that mistakes do not take place around the world in terms of identifying or misidentifying people. The important thing to remember is that in the context of Bill C-7 and how it will work, the surfacing of a name is simply the very first step. If there is a hit in the subset, the officer who has been specifically identified — and only he or she can deal with that information — must then start the process of verifying whether that is the person. That is simply the first step. The officer must then do a series of other verifications to ascertain whether that is the person. Only when they are assured that that is the person do they act. It is not simply get the name and then go and arrest Mr. Graham. We must ensure that it is the right Mr. Graham, or the right Paul Martin, if you wish to use that name.
There is a series of steps. I am not making light of this. This is only the first step in a long process of identifying whether that is the person. If we cannot make the connection, then we simply cannot do anything. The laws and rules that are in place in this country bind us. We must act on reasonable and probable grounds to believe this person is a threat, and only then can we act.
Senator Graham: Do you take immediate steps to rectify the situation?
Mr. Zaccardelli: Absolutely.
Senator Graham: How do you do that?
Mr. Zaccardelli: The important thing is to get the information quickly. If somebody is an hour away from boarding the plane, I cannot wait two days to get the information. I need to get that information right now. Then I have to make that verification.
Depending on where the person is, the person who has been identified must be able to talk to the local police authorities, which must do their verification. This is not an easy process. There are a number of steps that you must go through. In all cases, we cannot act in disregard of the person's Charter rights. Whatever action we take, that person is entitled to all the Charter and constitutional rights. We must have reasonable and probable grounds. We must notify him if there is a warrant for him or we believe he has committed an offence. He must be advised. He is entitled to a lawyer. All of the things that you are normally entitled to as a suspect, or as an accused, are still applicable. All this process will do is surface the name, and then we must meet the high standards set by the courts and the Constitution before we take any action.
If we take the wrong action, we are subject to a series of challenges and oversights.
The Chairman: You will take the passenger records and do an electronic match of them against a subset of information in your own data banks. What is in the subset? Who determines what is in the subset? What are the criteria and controls there?
Mr. Zaccardelli: The subset is stated in the proposed legislation. It deals mainly with serious terrorist threats and other serious, violent offenders who might be a threat to the airline or to the passengers, et cetera. This would include people involved in illegal activity in drugs, et cetera.
We do not check the names against the vast data banks that we have. We only check the name against the subset, which is restricted to the serious potential threats against the airlines.
The Chairman: The mere fact that I, for example, visited Saudi Arabia last year would not be in your subset?
Mr. Zaccardelli: Visiting a country is not grounds, no.
Senator Beaudoin: I am worried about the presumption of innocence. It is not because you take a plane that you are a possible terrorist. You cannot be presumed to be a terrorist. Given the power that you will have under Bill C-7, I wonder if this is not an encroachment on the presumption of innocence. Many people travel on planes every day.
Very few, of course, are terrorists, or at least we hope so. However, there may possibly be a terrorist. I agree with the need for some legislation on this, and I am ready to give more power to the police if it is strictly necessary. However, you cannot presume that they are all possible terrorists. That is my first point.
My second point is that you have a file on someone and you say that you will destroy it at a certain time. The temptation must be great when you have to destroy files. We are all afraid of dying, of course, and we want security. You work on a file, or many files, and after a certain number of days, the time comes to destroy the information. If you have communicated your file to the Americans, or to another country, do you think that they will destroy it? Those are my two questions.
Mr. Zaccardelli: Those are good points, Senator Beaudoin. Again, we have a government system, a Treasury Board system. Files are destroyed on a regular basis. If the legislation says after twenty-four hours, or seven days, that is exactly what will happen. We are not in the business of committing violations of any act. If they are not destroyed, not only will you be in violation of the federal law proposed here, you will be in violation of the RCMP Act by failing to carry out your duty. This is a very serious matter and we do not take it lightly. Those files will be destroyed. There is a review mechanism and an accounting process in place to ensure that will be done.
I want to go back to the question of the records that you talked about. Remember, the only people who will surface are people who actually have been identified as terrorists or have actual arrest warrants. Those already exist. They are people who have been identified as serious criminals or serious terrorists. We are not just surfacing anyone. It is only those who have been identified. If someone has been identified as a terrorist and gets on the plane, we have to deal with the presumption that that person poses a threat to that airline or those passengers. That is the fundamental issue here. It is a delicate balance.
I realize that that causes some problems, but we believe that allowing someone that we know has been involved in terrorist activity to get on the plane and not challenge him or her would create a situation that would put a lot of Canadians in serious jeopardy.
Senator Beaudoin: What about the presumption of innocence?
Mr. Zaccardelli: The presumption of innocence is not lost here, because the person who will surface in the records will be someone who has committed a serious offence and there is a warrant for them, or we have information that that person is a serious threat by virtue of the fact that he has been involved in terrorist activity. I realize someone involved in terrorist activity may not have been found actually guilty, but if we have sufficient information that that person was involved, do we allow that person to walk onto the plane and do nothing? That is the dilemma. That is the fundamental issue.
Senator LaPierre: I am sorry that you have to deal with this stupid bill. It is the largest invasion of the privacy of the Canadian people since the beginning of our country in 1867. It is unconscionable. That is my comment for the moment.
Sir, do you realize the powers you have in this bill? Have you read 4.81 or 4.82? The powers you have, sir, are dictatorial. You or your police can do whatever you like. Those of us who lived through 1970 know perfectly well that you may not have policies about targeting, but many of us were targeted in 1970 by the RCMP, or by officials of the RCMP, because we defended the case of Quebec — not independence but French Canadian nationalism. My house was searched three times by three different police forces. The police followed my children to their kindergarten over and over again. Therefore I do not trust the police of my country, whether it is yours or anyone else's.
I think these duties and responsibility must be enshrined in very clear legislation. You have all the power in this proposed section, sir. You probably would not use it because you are a nice man, I am told. On the other hand, someone else who may not be as nice as you might, and there are officers out there who are not as nice as you.
You do not train them for this profiling, but the profiling, sir, has nothing to do with Senator Jaffer being an Islamic Canadian. It has to do with looking at a person and saying, "This must be a crook.'' It has happened before. Those of us who lived with the black people attempting to establish their rights in this country know that individual RCMP officers were profiling them, and every black man was a crook because they all looked the same. We have gone through that, sir. What makes you think we will not go through this again?
Mr. Zaccardelli: I was living in Quebec in 1970, and I believe we have evolved since then. Can I say that we are perfect? Can I say that I do not have a man or woman in the RCMP who is not racist and may not look at certain people in a certain way that you have described? There probably are some people like that, but we try to eliminate that. We try to minimize it as much as we can through various policies, accountability systems and so on. I believe we do one heck of a good job, but we are not perfect, and we do have people who do not share the values that we all believe in.
Senator LaPierre: Do you fire them?
Mr. Zaccardelli: Where I can, absolutely. I do not want them in my organization. I often take them to court, and the courts send them back to me. That is another of my frustrations, but we can talk about that another time.
Senator LaPierre: We will not deal with the courts.
Mr. Zaccardelli: We do. We try to fire them, get rid of them. They are entitled to due process.
I share your concerns, but we are living in a reality, or a world, that unfortunately is getting a lot uglier and a lot worse in many ways. This, in my view, is something that we need. If we do not get it, we will continue to do the best we can, but I can tell you that I cannot make this country a little safer without this. This would be helpful. I am willing to submit to whatever conditions or supervisions are reasonable. We have always said that. I have always said that. I said that on Bill C-36, I say this here; I say it all the time.
I understand that the perception is that we are getting a lot more power. My saying that we are not is not the issue. I understand the concerns because they were raised before. However, I believe our record is fairly good, in spite of some of the abuses that have taken place.
Senator LaPierre: As one Canadian to another, do you think that the price of my security is the price of my individual rights? Do I have to lower my expectations of privacy rights, free-speech rights — all kinds of other rights — in order to be more secure? That is what is happening in the United States, of course, but is this what my country must become? Is that the price?
Mr. Zaccardelli: You are asking me a question that —
Senator LaPierre: As a Canadian.
Mr. Zaccardelli: As a Canadian? I believe the balance has shifted a little. I believe we are under severe threat and I am very concerned that we may not be getting the balance right. I do not want power for the sake of power. I do not want authority for the sake of authority. I have not used the authority under Bill C-36 once. Although the newspapers seem to be accusing us of using it, we have not.
However, that is the world in which we are living. We can ignore the reality out there. I do not want us to give up any rights, but what is the balance? It is not for the police to decide where that balance is. Society has to make that decision. We need a good debate about that. I will accept whatever decision is made.
Senator LaPierre: Thank you very much.
[Translation]
Senator Corbin: I would like to ask the commissioner if he is aware of the CAPPS II program in the United States.
[English]
CAPPS II is an acronym for Computer Assisted Passenger Pre-screening System II, which is what we are talking about here. Are you aware of that?
Mr. Zaccardelli: I know they have the system in place, yes.
Senator Corbin: They have a system. Do you know that they have not even tested that system?
Mr. Zaccardelli: I am not aware of that.
Senator Corbin: We are being asked to provide information that will go into that eventual system once it is up and working? It is the subject of a lot of preoccupation in the United States and airlines refuse to cooperate in terms of input. A number of American citizens have been incensed by the fact that Northwest Airlines, for example, which is the North American agent for KLM and provides service to Canadians travelling not only to the United States but also to all destinations of the world, has secretly provided information for this program without informing the people affected.
What are we doing here? Are we trying to be purer than the angels? The Americans have not even tested the program for which we are asked to authorize the input about Canadian citizens. This bothers me a lot. Everyone can get this information on a number of Web sites, from Homeland Security to the Transportation Security Administration. It is all there. I looked into that this morning. American Congressmen are rather bothered by the turn of events. I could quote a statement made yesterday, that, "I just do not think we are heading down a path here that is going to work,'' said Oregon Democratic representative, Pete DeFazio, who also said that resources would be better spent on baggage screening and tighter controls on airport employees.
I am amazed that you are not aware of what is going on down south. Of course, we are all for improving the security. Do not misunderstand me. I am scared by what is going on and I trust you people to do the best possible job for us. However, the Americans do not have their act together.
Mr. Zaccardelli: Senator, I understand. We follow the American system quite a lot. As you know, a lot of changes are taking place rapidly in the United States. However, this proposed legislation is not about releasing information. Obviously, the airlines are being asked to provide information to the American authorities. This particular bill is about how we can check certain information against our data banks. We are not releasing information to anyone, except on a case-by-case basis where we believe there is a need to follow up an investigation.
Senator Corbin: I thought everything was connected. I just do not understand what you are telling me now. I think you are only talking about a part of a program. I have to accept your word for it, mind you, but I do not think that, overall, this bill has been properly put together. In fact, the program is being tested, and resisted, in the United States, and it is a matter of privacy protection and preserving freedoms there. They are just as concerned as we are about privacy matters. They will not take this lying down. We all must be aware of that, but I do not think we should be the spearhead on something that the Americans have sought our collaboration until they themselves put their programs in order. Then we will all know what we are heading into.
Mr. Zaccardelli: They have already passed their legislation.
Senator Corbin: They passed the legislation. The programs have not been tested. They are not working. There is a great deal of resistance and contestation. In fact, people are being brought to court over this whole issue. I have made my point.
The Chairman: Indeed. I am sure that when the airlines appear before us, we will want to pursue the kinds of questions that you and Senator Phalen are both raising, Senator Corbin.
Senator Corbin: Do you have a program to ensure that all your staff is committed not only to the letter, but also to the spirit of privacy laws in this country? Are you keeping them updated on an ongoing basis in this context of terrorism versus privacy? Are you highly sensitive to this whole issue? What are you doing about it?
Mr. Zaccardelli: We are absolutely sensitive to this issue, senator. Again, as I said in my opening statement, there are only a very few people in the organization, specifically designated by me, who will have access to any hits that come out of the matching of the passenger list against the subset, and the subset contains only very serious criminal activity or terrorist activity.
Beyond that, all the work that we do in this field, that is, criminal investigation relative to national security, is highly centralized. Most policing is very decentralized. There is a lot of devolution of authority because of the nature of police work, but in this area it is totally — 100 per cent — controlled out of headquarters by very few people, because of the concerns about too many people being involved here and some of the potential harm.
The issue of privacy is absolutely critical. As you know, we had a number of issues with the previous privacy commissioner. We were constantly meeting with him. We have been in constant meetings with the current Privacy Commissioner, who will be here later, in terms of ensuring that we understand, and find, that right balance and work together to solve these issues that arise — and that do not go away — whether it be cameras on the street corners or other privacy issues. We are in constant discussions and that is being passed on to everyone in policing.
This is an ongoing, serious issue. We are well aware of this elusive balance post-9/11. I can assure you that I am very concerned about this, senator.
The Chairman: Thank you, Mr. Zaccardelli, Mr. Hanniman and Mr. Scrivens.
Senator Andreychuk: When this bill came in, it was part of a three-pronged approach that you were involved in, and it was terrorists, terrorists, terrorists. We were going after terrorists, no one else. However, as you have described it today, you have this sort of "hit bank.'' Our names go against it, as do those of drug dealers, criminals, and those who commit terrorist activities. We have spent more than a century putting together the checks and balances of our criminal system and now you are blending terrorism, criminals, et cetera. If we are worried about terrorists, the integrity of your data bank, and balancing it with the effect on people, do we really need proposed subsection 4.82(11)? Can you not do all your terrorist work and have all the hits against any terrorists without expanding it into a delicate criminal balance?
Mr. Zaccardelli: That is a very good point. The fact is that no one works in silos any more. Terrorists are involved in organized crime; organized crime people are involved in certain potential terrorist activity; terrorist activity is financed out of petty crime, as we sadly learned from the Ressam case out of Montreal. They were below the radar screen. We never actually picked him up. Perhaps we should have picked him up earlier.
There is a crossover. The reason for looking at people involved in serious criminal activity is that they are a potential threat to the safety of the airlines and the passengers. That is why we limit it to those people involved in very serious activity. There are people, organizations, involved in serious organized crime that do, in our view, pose a threat to the passengers on those planes. That is why we have extended this but put very clear limits on it.
Senator Andreychuk: I do not see the limits in the proposed legislation. Perhaps in your database, you have limits. On the face of it, you have carte blanche.
Mr. Zaccardelli: Senators, it is always a pleasure to come here.
The Chairman: Senators, our next witness will deal directly with some of the concerns raised in these questions. Jennifer Stoddart is the Privacy Commissioner of Canada.
Ms. Stoddart is accompanied by Ms. Heather Black, Assistant Privacy Commissioner. They will both be able to discuss with us the concerns that the Privacy Commissioner may or may not have about this bill. You will recall that Ms. Stoddart appeared before the Committee of the Whole in the Senate last year shortly before she was confirmed in her new functions.
Welcome, Ms. Stoddart. This is certainly your first time before this committee. I do not know if it is your first time before any Senate committee, other than the Committee of the Whole.
Ms. Jennifer Stoddart, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Yes, I was before the Senate committee that dealt with the assisted reproduction bill a few weeks ago.
The Chairman: You are familiar, then, with the way we organize things around here. We are very pleased to have you. As you could tell from the preceding session, senators have a lot of questions that go directly to your mandate.
Ms. Stoddart: Honourable senators, I again express my pleasure at being called to testify before you in the months following my nomination. I am accompanied this morning by Assistant Commissioner Heather Black, who is also acting general counsel and was, for several years, the general counsel of the Office of the Privacy Commissioner. Also with me is Mr. Carman Baggaley, a senior policy adviser who has been tracking these issues.
I have a fairly complete statement, honourable senators. This is a complex issue, so we tried to put it down clearly for ourselves. We tried to focus on exactly what we object to in this proposed legislation and to suggest positive changes for this period in legislative history, rather than ranging over a series of issues that have been with us for some time and probably will be for years to come
Let me be clear at the outset. The Office of the Privacy Commissioner objects strongly to this bill for two reasons. First, the proposed legislation is far too broad. Second, to use a word we all understand, this bill co-opts private-sector organizations by pressing them into service in support of law enforcement activities.
Before I begin discussing these two concerns, I will comment briefly on the history of this bill to put it into perspective. My past as an historian probably prompts this way of looking at things.
The history of this bill has been marked by controversy. For some two and a half years, honourable senators, you have not adopted it. Should you now adopt it completely in its current form? We suggest no.
[Translation]
Bill C-7 originally began life as Bill C-42, which received a first reading in November 2001, shortly after the terrorist attacks. Bill C-42 was one of three bills that formed part of a government's legislative response to the events of September 11. The other two — Bill C-36, the Anti-Terrorism Act, and Bill C-44, amending the Aeronautics Act — were passed in late 2001.
Bill C-42 was withdrawn in response to significant criticism, revised somewhat, and reappeared as Bill C-55. C-55 died on the Order Paper when Parliament prorogued in September 2002. Bill C-17, its successor, also died on the Order Paper. Now we have Bill C-7, the latest reincarnation.
Reminding ourselves of the history of Bill C-7 can be instructive for two reasons: first, C-42 was introduced shortly after the September 11 attacks when, understandably, we were all horrified by this new face of terrorism, and the federal government felt that it needed to act decisively. Now, two and a half years later, it is time to ask ourselves whether this legislation is still appropriate.
The second point I will make is that this is now the government's fourth attempt to have the Public Safety Act adopted by Parliament. Throughout this process many individuals and organizations and many parliamentarians have expressed serious concerns about the implications of this legislation for privacy and human rights. This includes seven provincial information and privacy commissioners and the International Civil Liberties Monitoring Group. If this legislation has been subject to this much criticism and if it has taken this long to get to where we are today, then we would suggest that it is because the approach it represents is fundamentally flawed.
[English]
I would like to now focus on the particular provisions that cause us concern. As you know, Bill C-7 amends some 23 existing acts and enacts a new statute to implement the Biological and Toxin Weapons Convention. This is a very complex bill. We will not comment on all these various facets. We will focus on two aspects of the bill, that is, the amendments to the Aeronautics Act dealing with airline passenger information, and a related amendment to the law that we apply — the Personal Information Protection and Electronic Documents Act, known as PIPEDA.
Clause 5 of this bill adds a new provision to the Aeronautics Act, section 4.81, empowering the Minister of Transport or authorized department officials to require certain passenger information from air carriers and operators of aviation reservation systems. The bill would also add a new section, proposed section 4.82, to the Aeronautics Act, authorizing the Commissioner of the RCMP and the director of CSIS to require air carriers and operators of aviation reservation systems to provide them with information about passengers. This information would be used and disclosed for transportation safety and national security purposes directly related to the proposed legislation. As well, the information would be used for the enforcement of arrest warrants for offences punishable by five years or more of imprisonment, a purpose that has no direct connection to the bill. I will come back to that.
Finally, clause 98 of the present bill amends PIPEDA to allow organizations to collect personal information without consent for the purposes of disclosing this information to government, law enforcement and national security agencies.
We have various serious privacy concerns; I will attempt to describe them summarily.
[Translation]
These provisions raise serious issues of privacy. The proposed amendment to PIPEDA, in effect, allows organizations to act as agents of the State by collecting personal information without consent, for the sole purpose of disclosing this information to government and law enforcement agencies.
Under the existing provisions of PIPEDA, this information is collected with the knowledge and consent of the individual. This is fair. The proposed amendment that would allow collection without consent is not.
The amendments to the Aeronautics Act require air carriers and operators of reservations systems to turn over information about passengers to government officials, including officials of foreign governments, the RCMP and CSIS. These provisions dangerously blur the line between the private sector and the State by enlisting businesses, not only in the fight against terrorism but in identifying individuals against whom there may be outstanding warrants for a wide variety of offenses.
[English]
This proposed legislation establishes, then, a new and troubling precedent. What is next? Will we start requiring car rental firms, couriers and telecommunications companies to collect information for the specific purpose of turning it over to law enforcement agencies?
This runs directly counter to the increased recognition of the importance of privacy as reflected in Parliament's decision to pass the Personal Information Protection and Electronic Documents Act.
PIPEDA, over which my office has oversight, prevents private-sector organizations from collecting or disclosing personal information without consent. As a nation, we have decided it is important to put restrictions on how private- sector companies collect, use and disclose our personal information.
Are we now prepared to stand back and allow law enforcement and national security agencies to demand that same information and use it in ways that are dramatically at odds with fair information principles?
[Translation]
I can understand the need to defend ourselves against future terrorist attacks. And as we saw last week with the bombings in Spain, international terrorism is still a threat, which I do not want to minimize. If Bill C-7 dealt only with antiterrorism or transportation security, I would still have reservations about this legislation, but my concerns would not be as great.
However, the legislation goes beyond fighting terrorism and enhancing transportation safety.
Proposed subsection 4.82 allows the RCMP to match the passenger information it receives, even for flights entirely in Canada, with any information under its control. Subsection 11, which you referred to earlier, then empowers RCMP officers to notify local authorities to take appropriate steps to effect an arrest if, as a result of this data match, they identify anyone who is wanted on a warrant for any of a wide number of Criminal Code offenses.
[English]
The list of offences in the proposed regulations, which you have surely seen, is lengthy. It includes arson, procuring and forgery of a credit card. These are offences that, it seems to us, have no connection whatsoever with national security or transportation safety.
One of the basic fair information principles is that information collected for one purpose should be used for that purpose only. This proposed legislation violates that principle. Air carriers collect personal information for the purposes of facilitating travel. This proposed legislation would require them to turn that information over to law enforcement and national security agencies for purposes unrelated to facilitating travel and, largely, unrelated even to air transportation.
The former solicitor general of Canada, when he appeared before the House committee studying Bill C-17, justified this provision by claiming:
I believe that Canadians would expect the RCMP to take action to help arrest dangerous fugitives in the interest of public safety. If we had the means to identify a dangerous wanted criminal, or a terrorist from another country and apprehend them before they could harm someone else, shouldn't we make use of these tools?
[Translation]
The former Solicitor General's comment suggests that it is acceptable to use any personal information collected by a government department or agency — income tax information, for example — for other purposes that have a public interest. This of course flies in the face of the underlying premise of the Privacy Act, and more importantly, it flies in the face of our basic rights as citizens.
That is why this argument establishes a very dangerous precedent, and so does this legislation.
We have followed the debates in both the House and Senate and we have reviewed the comments made by government officials when they appeared before the House committee that studied the bill. We have yet to hear any compelling reason why the warrant provisions are needed and how we will be safer as a result of these provisions.
The last point I would like to make is that this legislation, along with much of the antiterrorism legislation that has been passed here and abroad, is based on the premise that the more information the State has about everyone, regardless of whether they have done anything to incur suspicion, the safer we will be. I will leave it to this committee to assess the merits of this assumption because it is a question that is outside my area of expertise. However, at this point in our history, it is not clear how reducing the freedoms of all individuals in society will prevent further threats to public safety, whether by terrorists on a political mission or, for that matter, sex offenders acting on uncontrolled impulses.
But I can tell you that as we collect more information about more individuals, we are increasing the possibility that people will be subjected to unnecessary scrutiny, that more people will be singled out, and that more people will be treated unfairly.
[English]
The clauses of the bill that we have addressed leave us, then, with great unease. It appears to be an unreflective and quickly thought-out response to a real and legitimate problem.
In conclusion, we would urge this committee and its members to look critically at this bill and to provide the careful and thoughtful analysis that seems to have been absent to date.
Specifically, we urge the Senate to consider the following amendments.
First, the proposed amendment to PIPEDA should be dropped. While we understand the intent of the proposed amendment, we are not convinced it is necessary. Certainly, the broad wording causes us serious concerns. It applies to any organization subject to PIPEDA, not just air carriers. Second, it does not limit the amount of information that can be collected without consent. Finally, it does not place any limits on the sources of information.
Our second suggestion is this: With respect to the issue of warrants, our concerns could be addressed if the RCMP were limited to matching passenger information against databases specifically related to national security. As long as the RCMP is allowed to match this data against any information in its control, it will inevitably turn up people wanted on warrants for offences unrelated to national security or transportation safety. If it is not possible to limit data matching in this way, then we recommend that the proposed legislation be amended to require that the regulations listing the offences be tabled with Parliament for its scrutiny.
Our third suggestion is this: We recommend that the list of offences for which information can be disclosed to execute a warrant be significantly reduced.
Finally, our fourth amendment is as follows: We would like to see a requirement that air carriers and operators of reservation systems be required to inform individuals that they routinely provide the government and law enforcement agencies with their personal information.
It is my pleasure to respond to your questions.
The Chairman: Before I go to questions, I will note that we have not had formally before us in committee the draft regulations to which the Privacy Commissioner refers.
[Translation]
An effort will be made to get them by our next committee meeting at the latest.
[English]
Senator Andreychuk: I have an overall comment. I take it your concern is that this bill, unlike other pieces of legislation, is not target-specific or narrow enough. It seems to be taking a broad brush to words like "safety'' and "security.'' If I understand what you are saying, the RCMP does need information but it should be tied to national security.
I understand that. If we do not amend PIPEDA and if we limit the scope of the bill as you suggest, do you have any concerns that the matching of data under national security is somewhat undefined these days, because as the RCMP commissioner said to us, we just do not know today what terrorists will do? They have infiltrated the drug trade; they have infiltrated everything. We think they have infiltrated charitable and religious organizations. Would you still have a problem, if they take your name from an airline's list and match it to what they believe to be information on national security? Or are you talking about a more traditional definition of "national security'' than what I heard the Commissioner say, which is that anything could be national security, could be terrorism?
Ms. Stoddart: Yes. Your question goes to the heart of what the state may be doing with people's information. I will make two points.
In coming to you this morning at this stage of the proposed legislation, our concern is to draw your attention to its broadness, its unnecessary regimenting of the private sector in the broadest possible way, the overgenerous scope of the warrants for which the RCMP can then run lists, et cetera, and the fact that the public is not informed — which is a fair information principle — of what is being done with their information when they take a flight from Toronto to Thunder Bay, for example.
As a principle, we concede and recognize that there is a terrorist threat, there is a role for our security forces, and we understand that they may need powers for those purposes. We are concerned with the broadness of those powers in the present bill, which does not seem to limit the ways in which they can look for people. It is difficult to be any more specific on that because we do not presently have any detailed information as to exactly how the RCMP goes about that kind of search and how they determine who would be a security threat and who would not.
One of the things we are concerned about — and I alluded in my prepared remarks to the fact that the Office of the Privacy Commissioner, over the years that we have been following this, has notice that this proposed legislation, although so necessary, has not yet been passed some two and a half years later — and would like to draw to your attention is that we have come across no cogent arguments, no organized research, no brief, no kind of coherent information or arguments in support of such broad powers being given to our surveillance and police forces.
One would expect that there would be some serious analysis, statistics or studies put forward to show, as Commissioner Zaccardelli just said, if low-level crime leads you to terrorists, how often it leads you and why it would then be absolutely necessary to monitor all kinds of things. My staff found none of this in all their very thorough research. Indeed, from the statement that the former solicitor general made, it sounds more like, "Well, while we have those powers, why not tack on other things and nab other people?'' This is a very dangerous way to approach law enforcement in our country. We do not at all want to minimize the importance of apprehending people for whom there may be warrants for indictable offences that can merit imprisonment for five years or more. We say this takes a well- thought-out law enforcement strategy that looks into prevention, into what happens to the victims, and the whole broader issue, not just nabbing people because now we have the power, thanks to technology, to run huge lists against all kinds of people. This is a dangerous precedent in blurring the boundaries of the use of criminal law.
Those are some of our concerns in response to your questions. Unfortunately, specific answers take specific knowledge of what actually may be done.
Senator Jaffer: Commissioner, do you have resources to do outreach work to tell people who you are and that they can complain to your department or to your organization?
Ms. Stoddart: We have a budget. The specific budget for outreach is addressed, at the moment, under our responsibilities for the protection of personal information in the context of PIPEDA. This is in fact a gap in the definition of the Privacy Act, which has not been amended for a long time. Frankly, we would like to have a higher level of funding for public information, but it is only specifically addressed in one of our pieces of legislation. Therefore we have to be kind of creative about it.
Senator Jaffer: Would I be correct in assuming that if you were not connected or were not living in the Ottawa area, you may not know about the services of the Privacy Commissioner?
Ms. Stoddart: We have a Web site. I am talking about what we would be doing ideally compared with what we are actually doing. We have a Web site, which is consulted by thousands of Canadians every week. We put as much information on it as possible. In response to your question, however, we would certainly like to be funded and we will probably go ahead with these kinds of requests in the coming months to address the growing public education needs, the research needs coming out of a far more complex world, particularly since the year 2000, in terms of public-sector activity under the Privacy Act.
Senator Jaffer: Were you given additional resources to do your work after Bill C-36 was passed?
Ms. Stoddart: No, none. That has never been addressed. The whole issue of the impact of trends on the Privacy Commissioner's office, public security issues since 2001 specifically, and the growth of the use by government of huge databases, the growth in technological capacity of the government to track what citizens do, to match files and so on, has not been addressed at all in recent years.
Senator Graham: You said you were not given additional resources for the examination with respect to Bill C-36, and, perhaps, on the follow-on of Bill C-7. Did you ask for additional resources?
Ms. Stoddart: My understanding is that the previous full-time commissioner did not ask for resources under the Privacy Act. What happened was that the office got a significant amount of other funding under the Personal Information Protection and Electronic Documents Act in the context of protecting commercial information. This happened in 2000. Thus the office's budget was augmented substantially. In practice, a lot of those funds have been used to fund Privacy Act work, but this is a problem because, as you probably know, Treasury Board gives you money for a specific purpose, so these are among the many administrative challenges that have to be sorted out in the Privacy Commissioner's office. If we match money given to us for PIPEDA with PIPEDA work, then it leaves a huge gap in the resources that go to the Privacy Act work, which is the public-sector act, this kind of work, and no one can remember when we had new funding for that.
Senator Jaffer: Can you define what you mean by "commercial information''?
Ms. Stoddart: Information used in the course of a transaction, which is an exchange, sale, barter, et cetera. This is Canada's new, innovative protection of personal privacy in the course of commercial transactions.
Perhaps Assistant Commissioner Black, who is an expert in this area, could speak to you about PIPEDA.
Ms. Heather Black, Assistant Commissioner, Office of the Privacy Commissioner of Canada: The Personal Information Protection and Electronic Documents Act, which Parliament passed in 2000, sets out rules to govern the collection, use and disclosure of personal information in the private sector in the course of commercial activity. The act deals with personal information in the context that we are talking about, not commercial information.
[Translation]
Senator Beaudoin: First, I would like to congratulate Ms. Stoddart, who has presented a very interesting brief. I would also like to take this opportunity to state that in my view, we do not attach sufficient importance to privacy. To my mind, it is a fundamental part of the Canadian Charter of Rights and Freedoms, and there is an ever-increasing tendency to want to know all there is to know about everyone and everything.
It is nice to see someone who is well placed, who has a thorough understanding of the issue, who is not afraid to say that we are going overboard. I followed your presentation and you came up with four amendments. That last amendment speaks for itself:
We would like to see a requirement that air carriers and operators of reservation systems be required to inform individuals that they routinely provide the government and law enforcement agencies with their personal information.
That is the least one could ask. I am a member of the Quebec Bar and the Canadian Bar, and we are always told what information about us is being disclosed. That has to be done, in my opinion. Some will object because they feel that people will be afraid that this will reduce their power.
When you say that we should only enact legislation dealing with pure security issues, I agree with you. However, I get the impression that powers are being provided — whether to the police or to other authorities — that go beyond public safety. Take flying, for example. Everyone of us appreciates in-flight security. We are willing to put up with certain things on a plane, because we know full well that there could be a terrorist onboard the aircraft.
However, as I was saying earlier, the presumption of innocence bothers me a bit. We cannot assume that everyone could be a terrorist. There have to be grounds. The RCMP commissioner said earlier that this applies only to people who are actually suspected, considered or arrested as terrorists. Do you agree with that?
Ms. Stoddart: I listened attentively to what the RCMP commissioner said, but that is not our analysis of the scope of the legislation. Perhaps he was talking about an actual practice of the RCMP, but if I come back to the regulations that are circulating at the same time as the bill — regulations that are supposed to be enacted soon — under the definition of a warrant, there is a long list. I would invite you to consult that list because I feel that it provides us with greater insight.
When serious steps are taken, there is an expectation that the basis for those steps is also serious. I prefer to form my opinions on the basis of what I see in the draft regulations rather than on the evidence just given by Commissioner Zaccardelli, for whom I have the greatest respect, but whose input about what he does or does not do comes somewhat at the last minute.
To get back to the draft regulations, I note, for example, that in the list of warrants in relation to which the RCMP would be authorized to search for peoples' names, there are people sought under section 237 of the Criminal Code, which apparently has to do with infanticide.
Senator Beaudoin: But that has nothing to do with security.
Ms. Stoddart: Infanticide is tragic, but you have to wonder how it is relevant.
The Chairman: The committee does not have the regulations yet.
Ms. Stoddart: Okay.
The Chairman: We take note of what you are saying and we are assured that we will have them tomorrow morning. For now, perhaps you could read what is of particular concern to you.
Ms. Stoddart: I do not want to complicate your understanding. I just wanted to tell you what we were going by when we formed this opinion, that is, why I prefer to rely on things like documents — which you unfortunately do not have before you — than on an opinion for which the factual basis cannot be seen, like computer programs, for example.
Senator Beaudoin: I get the feeling that the net is too broad. There is too much of a desire to know everything. That is dangerous, because it is a matter of privacy, after all. What also bothers me is the assumption that these are terrorists. If they are, then clearly I agree with every proposed step to be taken. I am all in favour of security, but this assumption cannot be stretched to the point of being all-encompassing and for all purposes. That would be too broad, it seems to me.
Ms. Stoddart: Exactly. That is what we say. It is very dangerous to create a society of surveillance based on the premise that the more you watch people, the safer you will be and the better your society will be for it. That is the underlying problem with this bill. We cannot start trying to deal with a very real and very specific national security problem by extending surveillance powers so broadly and open-endedly, by involving companies in the private sector and amending our domestic legislation that is unrelated to security but related to commercial privacy.
Today, it is air carriers, but tomorrow, the list may grow longer. And ultimately, we may feel that if there are video surveillance cameras in convenience stores, it might be a good idea to have all of that information.
This is an extremely important point for us, because we are at a crossroads in the development of a society of surveillance. What will happen if we do not instinctively say that we should only have surveillance for what is strictly necessary and that we should have to substantiate the need for further surveillance? If indeed there are grounds for further surveillance, it should be possible to demonstrate that.
For our part, we have found no argument, no research nor any serious analysis to substantiate the need. We cannot even find out how many arrest warrants are currently outstanding in Canada and on what grounds they could be executed.
It is not very convincing. The temptation to think that the more information we have, the more the police will get the full picture and be able to take action, so the more likely it is that they will catch the terrorists, leads us to question what it is we are attempting to prevent.
[English]
Senator Graham: I have two or three specific questions. In suggesting so-called amendments, you have not given us written amendments, but you suggest general areas. You say that if it is not possible to limit data matching in this way, you recommend that the proposed legislation be amended to require that the regulations we have been talking about, listing the offences, be tabled before Parliament for its scrutiny. Would it satisfy you if the responsible minister or ministers gave a written undertaking to that effect, rather than making a specific amendment to the bill?
Ms. Stoddart: A written undertaking to deposit the regulations?
Senator Graham: Yes, with Parliament.
Ms. Stoddart: An undertaking by the minister could be a solution, if it permits us to move forward, but that is more or less our fallback position. Our main position is to make a change in the proposed legislation, and we feel very strongly about the change in PIPEDA, honourable senator, which is directly under our supervision in terms of its application and enforcement.
Senator Graham: I understand that. I am just looking for solutions.
Ms. Stoddart: Certainly, if that was all that remained, yes, that could be a way forward.
Senator Graham: Then you recommend that the list of offences for which information can be disclosed to execute a warrant be significantly reduced. Could you be more specific?
Ms. Stoddart: This is the list of draft regulations to which we are referring and of which honourable senators do not yet have a copy.
Senator Graham: You are recommending that that list be significantly reduced.
Ms. Stoddart: That is right.
Senator Graham: Perhaps when we get a copy and you get a copy, you could suggest to us what might be taken out.
Ms. Stoddart: We suggest general principles.
The Chairman: Ms. Stoddart, if you have specific suggestions for deletions from that list, perhaps you could write us a letter outlining them.
Senator Graham: That is what I am suggesting.
Ms. Stoddart: Certainly we will note that.
Senator Graham: Then you say you would like to see a requirement that air carriers and operators of reservation systems be required to inform individuals that they routinely provide the government and law enforcement agencies with their personal information. That would be the passenger or potential passenger. How would you propose to do this? Do you think that every time people make a reservation through BTI or through the carrier, that they should be informed that they routinely provide the government and law enforcement agencies with their personal information, or should the government just launch a general information campaign and take out advertisements in the press? What suggestions do you have in that respect?
Ms. Stoddart: We have some concrete suggestions, senator, because in fact there are precedents. I would ask Assistant Commissioner Black to give you some of those examples.
Ms. Black: The private-sector law we have been talking about, PIPEDA, requires private-sector organizations to inform individuals of the purposes for which information is collected, how it is being used, and to whom, generally speaking, it is disclosed. If an airline, for example, collects a lot of information from you, they are obliged to tell you that. The question you are asking plays into the suggestion we have made, which is that the proposed amendment to PIPEDA be dropped, because it essentially says that if the airline is given a terrorist watch list by the government, and this is what we understand would happen, then the airline now has the watch list and the proposed amendments as well, but the airline does not have the right to collect that, which is possibly true. The amendment says that collection will be done without the consent of the individual, and we do not see that that is necessary. The airline does all sorts of things with your information, and it collects it for all sorts of purposes. One of the purposes, it would appear now, will be, "We will act as an agent of the state.'' If that is what Parliament wants the airlines to do, then I think, and I hope that senators will agree with me, that we should know that. At the very least, we should know that, so it is not something that happens without our knowledge and consent.
Senator Graham: This is just a general question. If all of the so-called modifications that you have suggested were met, then would the bill in its modified form be acceptable to you?
Ms. Stoddart: We are focusing on the things with which we have concerns. We feel we do not have expertise in the various other areas of the bill, so we do not have anything to say on these other proposed sections that do not deal with personal information. Those are for other witnesses to inform you about their concerns. There may be legitimate, related civil liberties concerns. Privacy is related to many other civil liberties. We have told you what we have objections to, senator.
Senator LaPierre: Is not vigilance, madam, the price of liberty?
Ms. Stoddart: I think there are many prices for liberty. That is what we are finding out.
Senator LaPierre: Surely, the government is being vigilant. No terrorist will announce that he or she will terrorize us. It is not written in his or her passport. Consequently, the government, in order to protect the Canadian people, must take the necessary steps. If this means, madam, a little incursion into the privacy laws, then that is the price to be paid for the liberty and security of the Canadian people.
Are not the Canadian people prepared to pay that price? Have you done studies about that? They certainly did in the Second World War, and they certainly did in the FLQ crisis in the 1970s, and they certainly did in other problems we have had. I asked my family in Georgeville about this. They would only face a threat in Georgeville because the Leader of the Opposition lives there. There is no other threat that can possibly happen in Georgeville. My sister said to me, "I do not want my grandchildren to be killed by a terrorist, so do what you have to do.'' The Canadian people feel that, madam.
The United States, furthermore, thinks that we are very lax and that terrorists enter Canada because we have lax laws, and therefore they are not prepared to give us the borders arrangements and the freedom that we are supposed to have — they insist we are too lax.
I consider this bill to be reprehensible. Nevertheless, to get myself out of the doghouse with the government, or perhaps more deeply into it, is it not a fact, madam, that the government has to be vigilant for the security of the Canadian people? What price would you be prepared to pay as a citizen?
Ms. Stoddart: Senator LaPierre, I think you are referring to the very delicate balance concerning apprehension of terrorism, public fears about a new threat with which we in Canada, given our relatively peaceful history, are not as prepared to live as European populations that have gone through repeated wars and domestic and some international terrorism in their recent history. A perhaps understandable reaction of the population is often, "Let us beef up security. Let us beef up surveillance. Therefore, we will all be safer.''
My understanding of the role of this office and the reason this office was created was to help Canadians assess the balance between their privacy rights and their other rights, and to make a subjective examination of the proportion of their various rights and liberties that they want to play out at any given time. If you refer to certain public opinion polls, and so on, suggesting that Canadians would be willing to approve more drastic security measures in the hope that this would save them from terrorism, you are quite right.
However, what is interesting about many of these polls is when you go on to explain the problem more carefully, and when Canadians have more information about exactly how the steps would save us from whatever things threaten us, the support for these kinds of sweeping measures drops drastically. I think it is the role of our office to help put the facts and the best reasoning possible before the lawmakers, so that we can understand exactly what we can expect as a security benefit if we infringe upon privacy rights.
Senator LaPierre: I thank you for being around, you and your office.
Senator Day: I would like to focus on your recommendations as well, but I would like to raise a point for clarification, if I could, on your issue of collection of information by the private sector for security purposes and the interplay with government use of that information. In the paragraph that you went over earlier, one of the basic fair information principles is that information collected for one purpose should be used for that purpose only. You go on to say that this proposed legislation violates that principle and that "Air carriers collect personal information for the purpose of facilitating travel.''
Could we change the wording here to say — and should not we say it? — "Air carriers collect personal information for the purpose of facilitating secure and safe travel''? If that is the case, that they are collecting that information and have a responsibility to provide safe travel, then surely this proposed legislation makes sense in that regard. Do you have difficulty with that?
Ms. Stoddart: Generally, fair information principles are tailored much more narrowly and it concerns who holds and has access to this information. Assistant Commissioner Black is knowledgeable on this subject. She could explain our objections far better than I can.
Ms. Black: Our objection is not so much that in the interests of transportation security, of which everyone is in favour — it is a little like motherhood — there must be a flow of information from the carriers, who are essentially the collection point of a lot of the information, to government authorities. Our fundamental difficulty is that the proposal is that it will be done, essentially, without consent and that we will not know about this. The sophisticated traveller might; millions of travellers will not.
This is not to say that we are necessarily in favour of having the airlines act as, essentially, the agents of the state in collecting information. Airlines collect information for their own purposes. If it is to be put to a secondary purpose, then get consent for that. It goes perhaps a little further than that in a sense, if the airlines are actively collecting information that they do not need but the state does.
Senator Day: Let me ask you if you can agree with this, Assistant Commissioner Black. Organizations subject to PIPEDA, the Personal Information Protection and Electronic Documents Act, which is already law today, and notwithstanding Bill C-7, are already authorized to disclose personal information without the individual's consent for reasons of national security, the defence of Canada, the conduct of international affairs or when otherwise required by the law. Is that correct?
Ms. Black: That is correct, yes.
Senator Day: It is without their consent. We are not talking about creating something new here in that regard. It already exists.
Ms. Black: Not the disclosure. The proposal is to allow collection of certain information without consent.
Senator Day: I understand that.
Ms. Black: That is moving one step beyond. The airline collects information for its own purposes and is then allowed to disclose it to law enforcement or national security agencies for a secondary purpose. It proposes to allow the collection of information without consent for the purpose of passing it to law enforcement agencies.
Senator Day: That is an expansion of the collection purpose of this bill.
Ms. Black: That is an expansion, because the cornerstone of fair information practices is consent. The point at which you have the most control over what happens to your information is the point at which it is collected.
Senator Day: The Privacy Commissioner has the authority and the responsibility to review the activities of the RCMP with respect to this on an annual basis? You do a report on an annual basis? We have a public meeting here, where we are talking about what this proposed legislation would do. This proposed legislation would become public law. Everyone would be deemed to be aware of what is in the law. How much more information or notice do we have to give people? Is it not an implied, when they are asked to give information for security purposes, that it will be checked by the RCMP?
Ms. Black: I am not so sure that most people would actually know that. I think that if, for example, the airlines are getting information from national security agencies on, say, a terrorist watch list and the airline itself is running names against that list, the amendment to PIPEDA would allow that to happen without consent. Our primary objection is that if that is to happen, people should know about it. I am not so sure it is sufficient. It is certainly not sufficient for the purposes of PIPEDA itself; if you are supposed to notify people, you actually must do it. If you go to a bank for a loan, the bank must say, "I will run your name against Equifax and I will regularly send information to Equifax. " They must tell you that, even though, if you know about credit reporting and banking, you already know that that is happening.
Senator Day: You were here when the Commissioner of the RCMP was speaking?
Ms. Black: For part of it, yes.
Senator Day: You have seen the discussion on this, in which the RCMP said they would create a subset data bank specifically relating to security issues. That is why I am wondering about the comment here in one of your proposed amendments, where you say that, "as long as the RCMP is allowed to match this data against any information in its control.'' They have already said they will not do that. Why are you putting forward that statement as a reason for an amendment, when you know they will have a designated officer? It will not be all RCMP officers, but rather very specific people dealing with very specific subset databases.
Ms. Stoddart: I think that goes back to my comment to Senator Beaudoin. When we are looking at proposed legislation, we should look at every word and the powers it gives us. Why are we passing legislation that gives vast powers if the reality is we are doing something more focused? That is more focused, and it should be in the law. We should not be passing legislation and then say, "Well, the Commissioner of the RCMP says he will not use it. He will use a subset of the information.'' If that is all he needs, put it in the law that that is what he can have access to. Presently, we have proposed subsection 2, which states that he has power to match it with any other information in the control of the RCMP.
Ms. Black: That includes CPIC.
Ms. Stoddart: Parliament can broaden that at any time if the RCMP and CSIS need it. I would say this could be done very quickly. We saw that in the fall of 2001. Why start out in law with something that is so broad? That is our response.
Senator Day: You do not have any difficulty with the designated officer aspect? Are you happy with having a very specific, designated officer of the RCMP, and not everyone there?
Ms. Stoddart: That is better, yes.
Senator Corbin: I will quote from an article entitled, "Patriot Games,'' published on Wednesday, March 10, by Gail Repsher Emery. This article ties in with a poll by the Ponemon Institute, a privacy think-tank in Tucson, Arizona.
One elderly lady said, "I really don't want the Department of Homeland Security or the CIA...
We could change that to Canadian government security agencies.
...to get an A+ rating in privacy, because it's not their mission. I want them to protect my family. Probably a C level is good enough for them...
Is that good enough for you, in terms of security?
Ms. Stoddart: That is not good enough from the point of view of the Privacy Commissioner. We have a different perspective from the lady in Arizona. We are here to talk to you about how best to protect privacy, so our standards are fairly high.
On that issue of patriot games and what may or may not be happening in Tucson, Arizona, honourable senator, our office notes with great interest the growing criticism within our neighbour's borders of vast data collection, including that of airline passengers, in the context of the deliberations of American legislators. Notwithstanding the apprehensions of the lady in Arizona, the American Congress is looking critically, as we speak, at proposed powers of information collection by its own authorities. That is an ongoing issue we are examining.
Senator Corbin: Senator Beaudoin and I were both members of a special Senate study on euthanasia and assisted suicide some years ago. In my opinion, and in the opinion of most, that committee did excellent work. We did not endorse assisted suicide or euthanasia because we thought the current system needed a lot of mending before we should even think of moving in that direction.
Do you not feel, on this issue of collecting information as described in this proposed legislation, we are also on a slippery slope in terms of our privacy rights, in terms of Charter rights? Are there not many things that we should fix before we even think of going in the direction that the government currently wants us to go?
Ms. Stoddart: Exactly, senator. I think you have put the words into my mouth. This is the beginning of a very slippery slope. This is what we have tried to draw to your attention. If we accept the principle that you can cast your net extremely widely, that you can troll through all kinds of citizens' lives routinely, just in case you come up with something, you are abandoning some of the basic principles that create such a quality of life and such a respect for individuals in our democracy.
Again, we are not saying there are no problems; we are not saying that the police and other surveillance authorities do not have a role. We are saying we should focus on what, justifiably, they told us they need. We should not also give them "what would be nice while they are at it.'' If we say they may look at all of this, too, then we may as well continue to give these extraordinary powers. There would be a greatly diminished quality of democratic life, in our opinion.
Senator Stratton: Where do you think the Canadian public is with respect to this? There are grave concerns expressed on both sides, from the RCMP and from you, Ms. Stoddart. One is concerned when one sees the RCMP actions regarding invasion of privacy that transpired over recent weeks. Is the Canadian public just not aware of that? Have you received complaints about this bill? What is the feeling of the public, in your mind, or do you have an opinion about that?
Ms. Stoddart: I do not know that I have an opinion as Privacy Commissioner on exactly where the Canadian public would stand on this. Certainly we have some indication the public is concerned with the whole issue of data flows, where they are going, to whom they are going. In fact, over the course of the next year, one of our priorities will be to look at transborder data flows. We have some indication that people are concerned about that. Who is sharing what information about Canadian citizens and residents with whom, and so on.
That would be my response. As I said, any serious work that has been done on citizens' opinions shows that they are very measured. They respond very sensitively to the type of question and the context in which it is put.
I participated in the conference hosted by Minister Denis Coderre in my then-capacity as Quebec's Privacy Commissioner. We had a very interesting presentation by a public-opinion-polling firm that showed us exactly how public opinion does vary according to the questions asked. We cannot really say. We certainly did not conclude that Canadians are ready to jettison their privacy rights just in case they could have marginally more security. Canadians are far more critical than that. However, it depends exactly what questions they are asked.
Senator Stratton: If you were presenting to Canadians what you presented to us this morning, what do you think would be their reaction? You have expressed some serious concerns here today.
Ms. Stoddart: Yes.
Senator Stratton: That should be communicated to Canadians. How do we do that? How do those concerns get expressed? Will we pass the bill and then have the concerns come out? What steps are we taking so that Canadians know of these concerns? Are you doing anything?
Ms. Stoddart: If you are referring to the actions of my office, honourable senator, we are making public the position we took here today. We will be ready to talk about it. We are putting information on our Web site. Over the years, the Office of the Privacy Commissioner has taken, as you will remember, very strong stands that were supported by a majority of Canada's Privacy Commissioners on these different pieces of legislation that seem to pose a threat to civil liberties and, particularly, to privacy. The office was supported by a majority of Canadian provincial commissioners. We will be building on that tradition.
The Chairman: Ms. Stoddart, thank you. We covered a lot in a limited time.
Ms. Stoddart: We will send you our suggestions on the regulations.
The Chairman: Thank you very much indeed, and to your colleagues as well.
We welcome our next panel from the Canadian Bar Association.
Ms. Joan Bercovitch, Senior Director of Legal and Government Affairs, Canadian Bar Association: I will do a very preliminary introduction of Mr. Potter.
On behalf of the Canadian Bar Association, we would like to thank the committee for giving us the opportunity to present to you today. As many of you know, the CBA is an organization that represents over 38,000 jurists across the country.
[Translation]
Among the goals and objectives of the Canadian Bar Association, there is improving the law and the administration of justice.
[English]
That is the context for our submission today. This submission will be presented by Mr. Simon Potter of Montreal, past president of the Canadian Bar Association. The submission has been approved as a statement of the CBA and Mr. Potter will proceed to answer your questions.
Mr. Simon Potter, Past President, Canadian Bar Association: Madam Chair, it is a great pleasure to be here. Thank you very much for inviting the Canadian Bar Association to deliver its thoughts to you on this important matter.
Bill C-7 is the fourth version of the Public Safety Act, originally introduced sometime in 2001. On each occasion, the Canadian Bar Association has expressed serious concerns, noting the unacceptably broad reach of provisions governing air rage, military security zones — which have been removed from the bill now to be dealt with as special access zones created by Order in Council and therefore not even coming before the Senate — and the collection of airline passenger information. I myself addressed the third iteration of this bill before the House of Commons committee last year.
Two and a half years have passed since the Public Safety Act was originally introduced. I think it can safely be said that the urgency that we felt two and a half years ago, is, perhaps, not quite there any more. The Anti-Terrorism Act and numerous provisions of the Immigration and Refugee Protection Act, to name but two statutes, give the government extensive powers to combat terrorism and to seek to keep us safe.
The question before you today is whether Bill C-7 is a necessary and urgent addition to all of that. We find what is in the bill considerably troubling, particularly warrant-free access to masses of information that, apparently, is to be warehoused.
We are now nearing the three-year anniversary of the Anti-Terrorism Act, when the government must review the clauses subject to the sunset provisions. The Canadian Bar Association has also called for a comprehensive review of all security-focused measures to assess their cumulative effects, not only on our security — to see if they are actually succeeding in making us safer — but on our rights and freedoms.
The Canadian Bar Association sees no point in putting another anti-terrorism law on the books, particularly one so broadly drafted as this one, when Canada has not yet determined whether the current laws are now, or indeed ever were, absolutely necessary, and when we have not yet assessed the impact already felt on our rights and freedoms.
Passage of Bill C-7 would further and needlessly complicate the critical task of deciding whether these quite unprecedented laws are needed.
We are not calling only for delay. Speaking to the merits of it, we see serious flaws in this proposed legislation. It condones violations of privacy by, for example, allowing police to peruse airlines passenger records for a full week after the flight has landed. You have had witnesses come before you saying they want to prevent violence on the flight. That hardly accords well with the need to keep the records for a full week.
If the goal is to preserve the safety of the aircraft in flight, why not destroy the records within 24 hours? Why do we need to warehouse all this information in data banks? This provision gives police a week to comb through flight records for purposes that are wholly unrelated to fighting terrorism.
In the wake of last week's horrible events in Madrid, it is also worth asking why Bill C-7 applies only to flights. To be consistent, if that kind of statute is really needed, should it not apply to all trains, including commuter trains, buses, limousines, rental cars and hotels? Perhaps we would be safer if the police had all that information, too. Forced compilation of airline passenger lists is no different, in principle, from forcing the compilation of lists of hotel guests or commuter train passengers, or from stopping buses on the highway just to see who is on board and what names crop up.
Implementing such measures, of course, would quickly transform Canada into a police state. We do indeed believe, senator, that we are on the lip of a slippery slope, and our position is that before taking that step forward down it, Canada should take a step backward and assess what has already happened and what is necessary in the future.
The Canadian Bar Association has concluded that a full and rigorous review of all security-focused legislation is required, not an addition to that panoply before the review has even begun. We need to make this assessment before adopting more laws that may compromise the key values of Canadian society. By the way, we have been building those key values in our society not just in Canada, but also for 800 years, since Magna Carta, trying to draw a line beyond which the state ought not to go. It is very easy to go backward towards Magna Carta but very hard to come forward from Magna Carta towards us.
Accordingly, senators, it is the submission of the Canadian Bar Association that Bill C-7 should not receive the approval of this committee or of the Senate. We believe it should not be passed into law. We believe, as a minimum, it should be delayed and considered after the review, and in any event, we believe that substantial amendment is required.
Just as an example, there are powers in this proposed statute to do things that normally would be done by statute, not only just by regulation, which would never come before the Senate, but by a new animal, called a "ministerial measure,'' which does not even have to be approved by cabinet. We find these powers to be extremely broad and that the invasion of privacy is serious enough that we are indeed on the lip of a very slippery slope; we recommend that Canada step back.
The Chairman: Just for the record, regulations are, of course, brought before Parliament. I think you are talking about prior review.
Mr. Potter: Of course.
The Chairman: Thank you very much, Mr. Potter.
Senator Andreychuk: I had the benefit of hearing you on these topics before, and you have underscored them again today.
I want to ask you a broad question first. Canadians are concerned about their safety, and that is driven by continuing events such as what took place in Spain and elsewhere. Do you think that the public is aware of the cumulative effect on our democracy and governance from the intrusion of the state? Has the public had a proper appreciation of that part of it? I do not see the press talking about it in any cumulative way, as they do every time something goes wrong at an airport, et cetera.
Could one of the reasons for an overall review be to bring about a serious public debate on the cost to our rights vis- à-vis this hope to stop security threats against us?
Mr. Potter: Senator, it is a good question, and it is very hard to say what the public does in fact appreciate and what it does not, and to what depth. However, I can answer in this way: In the immediate aftermath of 9/11, all of us were extremely concerned, even while making a few mistakes if necessary, about increasing the security of Canadians. We passed the anti-terrorism statute, with some changes that were recommended by the Senate. We passed other legislation as well. I believe it is fair to say that not only is the general public insufficiently aware of the cumulative effect of all that on all of us, as parliamentarians you have not been able to assess it. The Canadian Bar Association has not. We are, all of us, insufficiently aware of what that cumulative effect really is. Our position here today is that it is time to lay down tools and have a sane, rational, calm look in order to answer that question for Canadians.
Senator Andreychuk: I have not had an opportunity to fully assess from a legal perspective this amending of some eight or nine acts by the use of interim orders. The government's position, as I understand it, is that the minister is given the power to make these immediate orders, and then they are filed 14 days later, et cetera, because, again, the minister may have to act. These interim orders seem to be broad, from my cursory look at them. The Minister acts. It does not say, if she has reasonable information to act, it simply says the minister may do certain things for safety reasons. Of course, they relate back to the regulations and to an act that the minister, whichever minister it is, is administering. They say they are narrow, not broad powers.
However, the cases I have looked at, and one I quoted in my speech, seem to say that the orders have to be very specific. In other words, ministers should not be given unfettered, vague abilities to act because that goes against natural justice, fundamental justice, and it has a chilling effect on citizens if they think they might be subject to this order at some point.
What is your opinion on the constitutionality of those proposed sections? I do not have time to allude to all of the interim orders, but there are certainly capacities in the bill.
Mr. Potter: There are many of them, senator. It is not just the ministers who can issue them but their deputies as well.
Senator Andreychuk: Exactly. Do you think they can withstand a constitutional challenge such as in the Parker case, where they said they are so broad that citizens will feel a chilling effect, and they will not act in the way they normally would because of fear of being caught by some interim order?
Second, people should know what the laws are, and this creates vagueness around them.
Mr. Potter: The regulation-making process is subject to several safeguards: the regulatory impact analysis statement; the consultation requirements; the reporting to Parliament, which leads me to say that an interim order, which can be issued almost immediately, not only by a minister but by a deputy, is much more likely to be susceptible to attack than the regulation itself. That is, attack under the Charter.
Will it be more Charter-vulnerable simply because it is an order issued by a deputy? I do not think so. We would have to look at exactly what is there. The fact that these powers would be exercised without the kind of consultation and impact analyses that are required for regulation making goes to your first point, senator, that the power should be less broad than the regulation-making power itself. It should not be the power to do anything you might do by regulation, but just from the privacy of your own deputy's office. It is very troubling, and this bill creates several new animals like that — interim orders — for several statute measures. We see in the first clauses of this Bill C-7 that the minister may make a measure. This is a new one, too. Therefore we are creating new law, we are going very far, and our view is that perfectly well-intentioned statements by the security-minded people in this country that it is necessary is not enough. It is not enough to justify our taking this step onto a slippery slope.
The Chairman: What is the alternative to an interim order when you have a clear, immediate problem? You have an immediate threat to waterways or airports. As you know, the standard regulatory process takes a lot of time. It could take weeks. For the sake of argument, I am the Minister of Transport and I have information that Dorval airport is under threat in 90 minutes. What is the alternative to giving me the power to act?
Mr. Potter: There are two answers to that, and I think it is the question to ask about this bill. First, there are already many provisions in the criminal law, in the immigration law, that allow rapid response to emergency situations, whether it is at airports or train stations or bus stations. They are all there, and we have had the police react to emergency situations in the past. We have had firemen show up and knock doors down in adjacent buildings. They have not had to go to talk to a deputy minister. The first answer is, there are many provisions of law that already allow rapid reaction in times of emergency.
The second answer is, clearly, just because we are worried about a precise emergency or a need to react within 90 minutes at a particular airport, we should not create an across-the-board power for deputy ministers to issue interim orders any time they might need a regulation. It is an overreaction.
First, we already have provisions to respond in cases like that, and second, even if there is a gap somewhere that we have to fill, this is an overreaction.
Senator Jaffer: Mr. Potter, you were saying that there are already many powers, and, for example, on September 11, our Minister of Transport had sufficient ability to do all he had to do within present legislation. Am I correct in understanding you to say that there is already sufficient legislation in place for emergency situations?
Mr. Potter: I am saying there are many provisions already in place, and that if there is a gap, let us fill it. Let us not make it possible for all of these deputy ministers and all of those ministers to pass all of their regulations on an interim basis.
Senator Jaffer: I do not think you were in the room when Commissioner Zaccardelli was speaking, but from what I understand, and my colleagues will correct me if I am wrong, he said that he had used none of the provisions of Bill C- 36. What has your experience been? Are the authorities using the provisions of Bill C-36? Is the Canadian Bar Association aware whether any of the provisions of Bill C-36 are being used?
Mr. Potter: We do have anecdotal evidence of those powers being used here and there. However, that is obviously not an answer for you. What we really need is a reliable, independent monitoring process to know who is using them.
By the way, the commissioner is not the only person empowered under Bill C-36. There are extensive wiretapping powers there. There are extensive powers that can be used by any police force in the land and by CSIS. There are many powers in Bill C-36.
If those powers have not been used, that is also relevant to a review. Perhaps they are not that necessary.
There are parallel powers to Bill C-36 in the immigration legislation and those have definitely been used.
Senator Beaudoin: I would like to return to that question. You were here when we studied Bill C-36. You are here today as we consider the son of Bill C-36.
I am inclined to agree that what we are doing is probably unconstitutional. We had a sunset clause requiring that after three years we would hold a review.
I raised this question the other day with the Leader of the Government in the Senate. He said that we have until December 2004 to hold a review. He is right.
Perhaps we should start a review before legislating on Bill C-7. That is what we decided on Bill C-36. One of our reservations on the previous bill was that we were giving too much power to the minister. As a matter of fact, the minister was even issuing some warrants, if I am not mistaken. Up to that time, only a court of justice could have done that. We had some problems with that. We said that is probably against the Constitution.
We are not talking about that in Bill C-7. We just say, "The minister may make an interim order immediately.'' That is pretty close to the powers that were given to the minister in the previous bill, except that it is done in another fashion. They may claim it is a case of emergency, et cetera. I agree with that. I agree that we may delegate powers to the minister. There is no problem there. That is not what worries me.
What worries me is that the minister is encroaching on certain powers that were not given to any cabinet minister in the past. When you say that this bill goes too far, I am inclined to say that you are right. We do go too far.
Mr. Potter: Let me add to that, senator. In Bill C-36, we were talking, as I remember, about two ministers. Here, we are talking about a greater number of ministers. Not only that, but the sunset provisions do not apply to all of Bill C- 36. The sunset provisions apply only to the major issues that everybody saw, not just the CBA. Everyone understood that there were dramatic things in that legislation, for example, the preventive arrest and the forced testimony of witnesses.
Those are the sunset provisions. That is why the CBA has called for a more general review. We need a review of more than just those two provisions. Canada needs a review of what has been done in Bill C-36 generally, in the Immigration Act and in other pieces of legislation, too, brought forward as necessary for security by perfectly well- intentioned people.
It is time for Canadians to know: Is it necessary and what is the price? We should know that before we pass another bill.
Senator Beaudoin: I am much in favour of protection, I agree with that. We may legislate to have better protection. I have no problem with that. However, that must be done the right way. I voted for the sunset clause. I remember that. I voted for that with enthusiasm, if I may say that.
We now have another bill that goes further, in my opinion, in giving more power and the minister may instantly issue an interim order. That is nearly legislative power.
People will say, "Yes, but we have delegated the powers to legislate to the minister(s) and we may do that.'' It is true that they may do that. However, the fact is that we are encroaching on the power of the Parliament.
We cannot change everything by orders. That goes too far. For 10 or 20 years we have legislated by regulation. We already abuse this process. Now we go further and say, "It will be more than a regulation, it will be an interim order.'' These things may be done in 20 minutes, 5 minutes or 5 seconds. It is unbelievable. We are changing the system completely. If that is the only way to save our country, I would accept that, but I am not convinced that we are in that situation now.
[Translation]
Senator Corbin: My question has to do with concerns about protecting privacy in relation to airline passenger information. In the discussion with the witnesses this morning, I quoted passages from US media. There is a reason why I did that. Potentially, information gathered by Canadian security agencies in Canada is going to wind up on computers in the United States, under American surveillance. The fact is that information on a Canadian citizen in no way affects his or her citizenship. This gives cause for concern. For example, we have seen Canadian citizens wind up in torture chambers abroad. That may be an extreme case, but it is nevertheless a precedent.
What concerns me — and I also believe it concerns all of the senators around this table and yourselves also — is that the information has to be kept for seven days. You are against that. Twenty-four hours should be enough to collect the data, which means the duration of any passenger flight.
Once again, I will quote what Ms. Nuala O'Connor Kelly says.
[English]
The Chief Privacy Officer of the Department of Homeland Security says the data collected by CAPPS II — I will remind the committee that is the Computer Assisted Passenger Pre-screening System II, in which names of Canadians eventually will land — will be thrown out within hours, not seven days, but hours, of a flight taking off or arriving. The department also promises that government employees will never see commercial data that flow into CAPPS II, and intelligence data, whatever is meant by that, will remain behind a firewall.
Here is the case of a high U.S. official saying that personal information would be wiped out, technically, once the plane has landed. Yet we retain in the law a seven-day provision. I do not understand. There is something going on here. Do you have a comment on the quote?
[Translation]
Mr. Potter: You are absolutely right to be worried about that. When this bill saw the light of day for the first time, the Canadian Bar went exactly in the same direction. If the information is necessary to deal with a security problem for a given flight, then you have to keep it for the duration of the flight. We said in January 2003 that we could agree with that part of the legislation, but on condition that the seven-day period be brought back to 24 hours.
Now, Bill C-7 is coming back and the seven-day period is still in it. It does say explicitly that the information will be shared with other countries. It also says explicitly that the information will be used not only for antiterrorist measures, but also to check whether certain people are on the passenger list.
The commissioner says that you do not have to worry because that information will be kept in a safe data bank. Rather than getting rid of that information within 24 hours and using it only for the duration of the flight, as the American authorities say, that information will be stored in order to be compared to other information.
We consider that way of doing things extremely dangerous. If that is the case, it could be used to other ends. For example, you could get the information concerning all the people registered at a given Ottawa hotel, put that data into a bank and see if any interesting names pop up. It is the same thing.
Senator Corbin: It becomes a social monitoring system.
Mr. Potter: That is what we are afraid of. Rather than stating whether we are for or against that procedure right away, let us back up a little bit to avoid falling into a precipice and undertake a general, healthy and calm review of the situation to see whether we have already gone far enough. After thinking it through, if we have to go any further, then how much further? We think it is a bit extreme.
[English]
Senator Graham: Thank you, witnesses. I want to make one comment, and I make it with the greatest of respect. I found it a bit of a stretch when you said in your opening remarks that the list of airline passengers is no different from a list of hotel guests.
Having said that, I am wondering if you would concede that the RCMP and CSIS are justified in assessing and cross-checking passenger information on legitimate grounds of security, and if so, is it realistic to expect them to ignore outstanding warrants with respect to serious offences?
Mr. Potter: Senator, it is legitimate to expect our security agencies to collect information and to cross-check the information that they can access. That does not mean that it is therefore legitimate for them to bulldoze their way through all kinds of information, information that we are used to keeping private and out of the hands of the police. It is legitimate for them to do cross-checking, but that does not mean that it is legitimate for us to pass statutes so that they can get all kinds of information wholesale, warehouse it, cross-check it all and keep information on all of us all the time.
There is a distinction to be made. They are doing their job, and we should be proud of that, and we should be happy that they are cross-checking what information they have. Frankly, I think we should be happy that they share the information they legitimately collect with other police agencies in other states because we know terrorism knows no borders.
However, that does not answer the question of whether this bill necessary. Do we adopt this bill, and if we do, why does it not include all passengers on trains, too? If it includes all the passengers on the trains too, with the greatest of respect, senator, why should it not include everyone in the hotels too, just so we know where everyone is going?
Senator Graham: What level of privacy protection would fugitives from justice have a right to expect when travelling by air or on the train, or staying in a hotel room, at a time of heightened security concerns?
Mr. Potter: A fugitive from justice has very little right to privacy; however, the rest of us have very much a right to privacy. We have built up our freedoms. I think I exaggerated in taking it back to Magna Carta. We did spend hundreds of years, senators, building up these freedoms, and we did so by saying that citizens' rights in Canada are not limited to those of fleeing felons. They have rights as citizens and we must respect them.
Senator Graham: You obviously have a lot of concerns. You have an overall concern with the bill itself. Do you have any modifications to propose to address your concerns?
Mr. Potter: Yes. We have circulated the report we filed in January 2003, in which we said that the minimum change that must be made to this bill is that the information collected about airline passengers must be held for no more than 24 hours and must then be discarded and not warehoused. We see that as a minimum amendment.
As concerns Bill C-7, we are very troubled by the creation of two new legislative techniques, the interim orders and the animals called "measures'' at the beginning, and we do not think nearly enough work has been done to answer the questions raised by Senator Beaudoin. These are new ways of making law. They change the legislative and regulatory process, and we are very troubled by that.
To answer your question directly, I would say, to the extent that Parliament believes that there is a pressing, urgent problem that must now be addressed by creating emergency responses like this, well, all right. However, and speaking only for myself, senator, because the CBA does not assess security risks to Canada, I am just not convinced that need is there. We have other statutes that allow for emergency response in particular situations. I see no indication that Canada has been unable to respond in any given situation and needs these kinds of powers.
The Canadian bar's position is that if you are to pass the bill, the seven days must become twenty-four hours, there must be no warehousing of information, and it must not be used otherwise than for anti-terrorism purposes regarding the particular flight. That is the CBA position.
Senator Graham: I have sons who are lawyers, but I am not a lawyer. I wonder how the CBA arrives at its conclusions, which you are here representing.
I know you meet annually and semi-annually and you have committees, on which Ms. Bercovitch has some oversight. How do you arrive at these conclusions? Do you get a consensus across the country?
Mr. Potter: Yes, we do, senator. You are right, Joan Bercovitch is our director in charge of legislation and law reform. She is a permanent employee of the Canadian Bar Association and she and her staff keep watch over all of this.
The council of the CBA, which meets twice a year, sets policy. If a policy has to be chosen between those meetings, the executive officers, of which I am still one for another few months, set the policy and submit it to the council later for approval. Every submission to Parliament is vetted not only by all those people, but also by our volunteers across the country who sign up to be members of this or that section, for example, criminal law or immigration. As regards anti-terrorism legislation, we had something like 400 people working on that across the country, leading up to a policy that then went to the council of every provincial and territorial branch of the CBA and was approved unanimously by them all before we put it forward to Parliament.
Senator LaPierre: If the government were to declare that we are in a state of security risk — the barbarians are at the gates — would this law be valid?
Mr. Potter: There is no doubt there is a sliding scale of what is acceptable, depending on the threat and the danger. If the barbarians are truly at the gates, I am sure the courts will take that into account. Thus far, the courts have insisted on quite compelling evidence of the balance between need and response. In the current situation, it will be extremely hard to convince a court that this legislative response is necessary and will accomplish what is intended with an acceptable level of harm to our privacy interests.
Senator LaPierre: Cast your mind back to the 1970s, when we had only the War Measures Act to guide the government. The government then passed the daughter of the War Measures Act, if you remember, which was utilized. That is still on the books, I suspect. Does that give enough power to the government to act during a state of emergency caused by terrorism?
Mr. Potter: I believe it does. I believe many other pieces of legislation do, too.
Senator LaPierre: Therefore, this is not necessary, as you have said?
Mr. Potter: Our view is that it is very hard to see why it is necessary to pass these new, quite dramatic emergency powers. I know of no situation in which Canada has faced some kind of legal obstacle in putting together an emergency response.
Senator LaPierre: I will ask you a question that will probably be ruled out of order, which happens to me almost every time.
Mr. Potter: It is always good to warn the chair.
Senator Day: He is frequently out of order.
The Chairman: He was born that way. He was born a rebel.
Senator LaPierre: What is an emergency to you, as a citizen of Canada? My second question, which is much more important than the first, concerns the fact that we are not independent. We are interdependent with the United States of America. If we do not do the right thing in passing such legislation, we will be accused of encouraging terrorism and the next terrorist act that occurs in the United States will affect Canada dramatically and seriously. Consequently, to protect ourselves from the Americans, we must pass this bill.
Mr. Potter: Allow me to answer your second question.
Senator LaPierre: You see, I am in order!
Mr. Potter: You are definitely in order on the second question, which I propose to answer.
The Canadian Bar Association policy, developed in the way that I just explained, is that it is necessary to see to security interests and to do so in a way that gybes with the interests of our friend and neighbour, the United States.
However, that does not mean that doing the right thing, to use your words, is doing whatever is requested south of the border. It is doing the right thing in the Canadian context, with our values in mind, and trying to achieve the right balance between security, including that of our neighbour, the United States, and the legitimate rights and freedoms of our citizens. The right way is to come to that balance.
This, now, is a question for you, but our view is that Bill C-7 goes too far.
Senator LaPierre: It does not maintain this balance?
Mr. Potter: No, it does not maintain that balance. You asked me to speak as a citizen of Canada. Unfortunately, senator, the Canadian Bar Association does not come here as a citizen of Canada. The Canadian Bar Association comes here with a mission, which is to help Canada improve its laws and its justice system, all under the umbrella of respect for the rule of law. That mission convinces us that the balancing, which is necessary for nearly every statute, particularly security statutes, has not been done here.
Our submission to you is that instead of passing another statute that tips the balance too far, why do we not sit back, have a review, see if it is really necessary, and see if the CBA is right? Maybe we are wrong. Maybe the balance is fine. We say, let us check first.
Senator Day: Mr. Potter, let me congratulate you on the fine job you did you as president of CBA. I hope that you are enjoying your year as past president.
Mr. Potter: You can see me in my return to normal life, senator.
Senator Day: We look forward to that. There are several points with respect to interim orders on which I thought that maybe the record should be clarified, and the first is the checks on the minister. I know that you have looked at all of the checks and balances that are put into these interim orders.
First, there was a suggestion that interim orders — and this is something new — presently exist in federal legislation, in the Canadian Environmental Protection Act and the Aeronautics Act. Are you familiar with that?
Mr. Potter: Yes, I am, and you are quite right. There are legislative references to interim orders. I could be wrong, but I believe there are no provisions to allow deputies to pass interim orders, which could be anything that might be done by regulation.
Senator Day: Our debate, then, was not with respect to the interim order concept, but with respect to the concept that deputy ministers could get involved. Is that correct?
Mr. Potter: No, it is that the deputies could be involved and that the interim order could cover anything at all that might normally be done by regulation.
Senator Day: I checked a number of them while we were going through the questions, but the wording seems to be repeated. I am looking at the Radiation Emitting Devices Act, at page 78 of the bill, subclause 13.1(1), which states:
The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act...
That is to say, the interim order must be within the regulatory authority of the act.
Mr. Potter: Not only within, but it could cover the whole ambit of the regulation.
Senator Day: The subclause goes on to state:
...if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.
That is the other limitation. That appears in all of these.
Mr. Potter: In that clause, yes.
Senator Day: I think you will find the wording is similar with respect to each of the interim orders.
Mr. Potter: I have not checked them all, but I believe you are right.
Senator Day: As opposed to what the record might show, namely, that the minister could do what he wanted, there are limitations in each of these with respect to filing with Parliament and the various other items that I will not go into now. A number of checks have been put in to ensure that Parliament has oversight with respect to these interim orders.
Mr. Potter: There is eventual, later oversight. Let me make it clear. I am not suggesting there is an army of ministers and deputies out there who are anxious to abuse these provisions and issue interim orders even when they do not believe it is necessary. That is not the position of the Canadian bar.
However, the position of the Canadian bar is that these are very dramatic powers and quite a departure from the normal way of doing things. They cover the whole regulatory ambit under those statutes. They are very broad powers. This is a dramatic change that we are considering. We suggest taking a step backward.
Senator Day: I appreciate your comment. We have made note of that.
The Chairman: Mr. Potter, Ms. Bercovitch, thank you for your powerful presentation.
[Translation]
Mr. Potter: It is always quite a pleasure, Madam Chair, to appear before a Senate committee as a witness. We find that these committees do remarkable work.
The Chairman: Thank you very much.
[English]
Honourable senators, our next witnesses are a panel from four different organizations, the Muslim Lawyers Association, the International Civil Liberties Monitoring Group, the Canadian Association of University Teachers and B'nai Brith Canada. Welcome.
Ms. Lynne Cohen, Communications Officer, B'nai Brith Canada: Honourable senators, B'nai Brith Canada was established in 1875 and is Canada's oldest Jewish community service and advocacy group. Our advocacy department is comprised of the League for Human Rights and the Institute for International Affairs. The League for Human Rights concerns itself with human rights and equality issues here in Canada. The Institute for International Affairs monitors anti-Semitism and other forms of racism and prejudice worldwide.
The experience of the Jewish community worldwide in the last century, particularly since the end of the Second World War, is unique. We have learned through bitter experience that no discussion about fundamental human rights can be conducted in isolation from a discussion of the environment wherein those human rights are to be practiced. A society without the rule of law and the means and will to protect its citizens through the enforcement of that rule of law cannot hope to uphold the fundamental rights of those who live within its borders.
Freedom, security and rights are inseparable from one another. It is within that context that we appear before you today. I would like to introduce my colleague, Rubin Friedman, from the League for Human Rights. He will speak to you at greater length about this and how it pertains to the proposed legislation this committee is currently studying.
[Translation]
Mr. Rubin Friedman, League of Humana Rights, B'nai Brith Canada: Thank you, Madam Chair, for giving us the opportunity to say a few words on the bill you have before you.
[English]
We have a profound gratitude to the Government of Canada. Perhaps "gratitude'' is too strong a word. We are glad that the Government of Canada has finally begun to take terrorism seriously. In 1985, close to 300 Canadians were killed in what was the worst terrorist act in the world until that point and was probably the worst terrorist act until September 11.
In reaction to that terrorist attack, our police services erased evidence. Since September 11, the United States has launched two wars. Perhaps we in present day Canada can find some happy medium between these two extremes.
Before any other guarantees or rights can be recognized, people must be able to live. It is the fundamental responsibility of every government to ensure that its population has this opportunity.
The Jewish community has been faced for many years now with threats of all kinds, because as Lynne Cohen says, we have a unique experience. Our community centres and our synagogues around the world have been the object of fire bombs, car bombs, machine gun attacks, anthrax threats and so on. From our perspective, it is high time that we had stronger security concerns in Canada.
That being said, we know that in our Canadian context, and in our Charter, we are constantly called upon to balance various kinds of rights. We are called upon to balance the right of freedom of expression against the right of others to be able to live in peace and security, which is why we have a hate crime law.
In a similar way, we feel that much that is in this proposed legislation is necessary to ensure the safety of the Canadian population. Nevertheless, we would like to discuss two areas where we think there is cause for possible concern and improvement.
One area concerns the review by the head of CSIS and the Commissioner of the RCMP of the materials collected from airlines and so on and whether they should destroy the information. We strongly support any effort to bring in more civilian oversight of this activity. There should be some check on the powers of these individuals to make decisions independently and simply report what they have done to the minister. That is the first area where we have a concern and would appreciate any improvement.
The other area has to do with the sharing of information with other countries. We are profoundly concerned that Canadian citizens can be deported to countries where torture is a routine practice without any say by the Canadian government in what happens to them. Therefore, in any arrangement or agreement we make with other countries, we strongly recommend that we ensure that such things cannot happen.
Finally, we think that civilian oversight of any part of this proposed legislation would be greatly appreciated and that there should be review of how these matters operate to ensure that racial profiling is not being used to screen, stop, search or investigate people. We think that is an essential part of what should be done in this country. Thank you very much for your attention.
The Chairman: Thank you, Mr. Friedman.
[Translation]
We will now go to Mr. Tassé who represents the International Civil Liberties Monitoring Group.
Mr. Roch Tassé, National Coordinator, International Civil Liberties Monitoring Group: First, I would like to thank you for your invitation to appear before you and make known our concerns.
[English]
Since September 2001, Canada's anti-terrorism agenda has been driven primarily by our government's obsession with keeping the Canada-U.S. border open for business. This objective is rooted in the logic of deep integration and is consistent with proposals by some sectors in Canada to create a North American safety perimeter and a customs union with the United States.
We understand the proposal to essentially mean reinventing Canada as part of the United States. It implies integrating the internal security regimes and data banks of both countries and acting on the information in concert. Such measures would effectively weaken Canadian sovereignty and diminish the capacity of Canadian governments and institutions to ensure the security and protect the freedoms of Canadian citizens on the basis of Canadian rights and values.
ICLMG is concerned with several aspects of the bill. We share the concerns expressed this morning by the Privacy Commissioner that the law is too broad.
We are also concerned that the bill is not limited strictly to anti-terrorism issues and national security, but expands police powers for criminal activities as well.
I will focus on our concerns with privacy issues. We feel that in many respects, Bill C-7 deals with the nuts and bolts of harmonizing security measures negotiated in the context of non-legislated bilateral agreements with the United States, such as the Smart Border Action Plan. The 30-point Smart Border Action Plan calls for increased coordination and information sharing between Canadian and U.S. police and intelligence services. It also calls for the harmonization of our refugee, immigration and security policies.
Let me read some of the highlights of the Smart Border Action Plan: share advance passenger information and passenger name records on flights between Canada and the United States; establish joint passenger analysis units at key airports in both countries; develop jointly a compatible and automated immigration database as a platform for information exchange; enhance sharing of intelligence and trend analysis; establish joint teams to analyze and disseminate information and intelligence and produce threat and intelligence assessments.
It is all about data gathering and integration of databases, information sharing and risk assessments by computer- generated profiling. We have heard in the last few days that Bill S-23 allows airlines to give information to customs and Revenue Canada. Bill C-44 authorizes airline companies to give information on passengers to foreign governments.
While such legislation has received little public notice in Canada, similar agreements between the European Union and the U.S. are at the heart of a major controversy right now in the European Parliament. Parliamentarians in Europe are concerned that European passenger data shared with the U.S. will receive little or no protection and there is likely violation of the privacy rights of European citizens. There has been no such debate in Canada yet.
Now we hear from Minister McLellan that the government wants to collect data information on both outgoing and domestic air travellers. She says Bill C-7 is required to get the legal authority to go further.
I believe in the last session, Senator LaPierre was asking Mr. Read from Transport Canada whether Canada was inputting information into a database and the answer was, bluntly, no. I have not read the transcript, but my memory is that the answer was no.
Although Bill C-7 has not been adopted, measures already agreed upon under the Smart Border agreement are being implemented and, in our opinion, should require the adoption of Bill C-7. A case in point is Canada Customs and Revenue Agency's multi-million dollar plan for an air-scoring system. The program is secretly being set up with American authorities to screen individuals who could pose a risk to national security, be it for terrorist or other criminal or suspicious activity. A new national risk assessment centre opened in Ottawa in January to implement this program. It will receive all passenger information, analyze it and share it with U.S. counterparts. Information will flow south of the border, where it will be stocked, managed and used by U.S. agencies as they please.
This information will be fed into the U.S. CAPPS II program that we have heard about. The information will go not only into the CAPPS program, but also into the US-VISIT program, which we have not heard about until now, I believe, in these sessions. The goal of the US-VISIT scheme is to eventually create a lifetime history of all travellers from all countries around the world. Since the beginning of January, I believe, foreign visitors now entering the United States are fingerprinted, photographed and catalogued in a database, with the exception of citizens of 28 countries. Canada is presently an exception to this.
Both CAPPS II and the US-VISIT program provide the foundation for the establishment of an international infrastructure for total surveillance of movement. That is what it is all about.
Under this grandiose scheme of Orwellian proportions, the presumption of innocence is reversed and everybody becomes a suspect. Otherwise, why maintain a database on all citizens who are presumably innocent?
ICLMG regards this initiative as leading toward information mining, monitoring and pattern analysis equivalent to or worse than practices of the most reprehensible of security forces in dictatorships. It is antithetical to a free and democratic society.
The Arar case encapsulates all the dangers of more information sharing and integration of personal databases with the U.S., and such cases will multiply if this trend is allowed to evolve.
Once the information is in the hands of American agencies, there is no control whatsoever on how it is used. The problem is that foreigners travelling to the U.S. have no rights, become vulnerable to extrajudicial proceedings and can be deported on mere suspicion to countries with no regard for human rights. There is no single Canadian agency, department or constitutional right that can protect you as a Canadian. We are giving all these data to the U.S. and they will do with them what they please. If Canada continues along this path, we will, de facto, be trading in the civil liberties and human rights of Canadians to accommodate the demands of deep integration with our southern neighbour.
We see Bill C-7 as the key to legislating the implementation of non-legislated agreements. It is the only reason that we can see for so much pressure to pass this bill at this time. Our recommendations, however, would be similar to others you have heard so far, that we wait for a review of Bill C-36, that we take "un certain recul'' before we adopt new legislation and examine what has been the reality, and that we get a better assessment of the real risks in Canada so that the laws are in proportion to the demonstrated risks. To our knowledge, there has been no demonstration of the risks to Canada in any of the debates around Bill C-36, Bill C-44 or Bill C-7.
We would also hope that the review of Bill C-36 would involve a thorough examination of all the various regimes of information sharing between Canada and the United States.
The Chairman: Mr. Tassé, for clarification purposes, when you say that a program is being set up secretly, what is your authority for that?
Mr. Tassé: An article in The Toronto Star titled "Air Travellers Face Screening.''
The Chairman: Perhaps you could give a copy of that article to the clerk of the committee so we know to what you are referring. That is all. It will be part of the committee's documents.
Mr. Tassé: The article refers to internal documents accessed by Ken Rubin, a researcher who is an expert on the Access to Information Act. I have two documents that were disclosed under the Access to Information Act and that substantiate the contents of this newspaper article. I will distribute not only the article, but also the documents we obtained through the Access to Information Act, which describe the operational implementation of this Ottawa centre for risk assessment. It is in place. There is a budget for it. There is a timeline. The timeline totally corresponds with the timeline of the CAPPS program in the United States. It is the very same.
The Chairman: Thank you.
Ms. Maureen Webb, Legal Counsel, Canadian Association of University Teachers: I am legal counsel for the Canadian Association of University Teachers. We represent all academics across Canada in all of the universities — approximately 35,000 people — with the exception of some of the francophone institutions.
We do not usually lobby on issues of security and human rights, but we are here today to ask you to stop this bill. We feel that this is proposed watershed legislation. If it is enacted, it will have a profound effect on Canadian society and Canadian sovereignty. It presents grave and specific risks to Canadians of Arab and Muslim extraction, but really, it endangers all of us.
First they came for the Jews, and I did not speak out because I was not a Jew. Then they came for the communists, and I did not speak out because I was not a communist. You know the quotation. Then they came for me, and there was no one left to speak out. There are moments in the history of democracies of which, in retrospect, we are all ashamed. Let this not be one of those moments. Let it not be said that Canadian intellectuals did not speak out at a critical juncture in Canadian history.
Why is this proposed legislation dangerous? If you have been following security issues, as we have, you will know that it is becoming clear that what is being currently set up and implemented is really a system of global surveillance, as Mr. Tassé has described to you. This system envisions the deep integration of police, security, intelligence and customs operations of countries around the world with American operations. It is being driven by American legislation and carried out through bilateral agreements like the Smart Border agreement between the U.S. and Canada. It is a system of general and pervasive surveillance in which everyone is treated like a suspect; everyone is subject to surveillance under fishing expeditions by law enforcement officials without reasonable grounds for suspicion.
It is a system in which the personal information of Canadians will be collected, but it will also be stored and linked with other databases to create profiles on individuals and data mined, not by human intelligence officers, but by computer software programs that set out arbitrary parameters for identifying suspicious patterns and activities.
Our personal information will be used and shared not only among Canadian agencies, but also with foreign governments. To facilitate this sharing with foreign governments, the Canadian government and other democratic governments around the world are being asked to jettison well-established protections for their own citizens: privacy protections relating to access to information being held about oneself; security of information; retention, accuracy and legal recourse; due process protections against unreasonable search and seizure; as well as basic human rights protections against arbitrary detention, and even torture.
If the Arar case was cause for concern for Canadians, they should be utterly alarmed about the regime that is about to be put in place under this bill. We believe that once this infrastructure of global surveillance is set up, it will be difficult or impossible to dismantle. These kinds of systems only accrete, and one must understand that there are huge corporate interests at stake in the technology and the research to underpin these systems. These corporate interests, combined with politicians' interests in justifying the system, will only lead to additions, not deletions or rethinking of the system, once it is up and running.
We submit we will be living in a different world order once it is up and running. It will be a world order in which your national government is virtually powerless to protect you once you are caught up in an adverse way in this system. Get denied a visa in one country, get on a no-fly list, you will be de facto denied entry everywhere. Get sent to a third country, where you face interrogation and torture, and see whether your government can get you back to Canada.
Let us be absolutely clear here. Following the Arar case, the U.S. government unequivocally stated that it would continue to send Canadians to third countries if it was believed it was in its national interest to do so. Alongside this system of global surveillance runs a parallel world of extrajudicial activities, a brutal netherworld to which certain citizens will be cynically consigned in the name of greater security for us all.
Canadians have seen this in the Arar case. We had our eyes opened. There was an enormous public outcry from all kinds of Canadians across the country. Why is our government continuing to lead us down this path?
Why are we heading down this path?
At CAUT these issues are not theoretical. Our members travel frequently to conferences, for research, as visiting professors, as consultants. We even deal with the U.S. Department of Defence. Even now, our Muslim members are being stopped in the U.S. and in the U.K., interrogated, intimidated and detained. They are being visited on campuses by CSIS. Eminent scholars are now refusing even to travel through the United States.
We hear their testimonials at our national councils. Believe me, this is mobilizing our entire membership. How much worse will it be for our Muslim colleagues when Bill C-7 is passed? We fear for them. We fear for all of us. We think that our democratic traditions and the very fabric of our society in Canada are threatened by this kind of regime.
In closing, I would like to leave you with some questions about Bill C-7.
The Chairman: Perhaps you can give your material to one of the pages.
Ms. Webb: We submit that you must be satisfied that you have answers to all of these questions before you can, in good conscience, pass a bill like this.
Briefly, the questions are: How will cases like Arar be avoided if this regime is put in place?
The Chairman: Ms. Webb, I am not trying to cut you off, but this committee must rise at three. We still have to hear from Mr. Mia and we wish to have a question period. Perhaps we can take your questions as read, since we will be given copies of them.
Ms. Webb: Certainly. I will close with the message that I bring from the Canadian Association of University Teachers and its 35,000 members; that is, that a security policy that endangers Canadians' personal security is not acceptable.
Senator Corbin: Madam Chair, could we please have the questions that have been submitted printed as part of today's record?
The Chairman: Certainly.
(For text of documents, see Appendix)
The Chairman: I will ask the representatives of the Muslim Lawyers Association to please proceed.
Mr. Khalid Baksh, Counsel, Muslim Lawyers Association: In the name of God, the beneficent and merciful, thank you for inviting us to speak today.
Mr. Mia and I represent both the Muslim Lawyers Association, which is a collection of lawyers, law students and articling students, and the Coalition of Muslim Organizations, which is a coalition of various Muslim non-profit and charitable organizations. The CMO is community based and represents a significant portion of Canada's Muslim population.
Thirteen months ago, we appeared before this committee to deal with Bill C-17. We remember dealing with Bill C-42 in October and November of 2001. That changed to Bill C-55 and then Bill C-17. In March 2004, we are dealing with the same serious subject matter that we would suggest to you changes the social contract between the citizen and Canada. For that, we require your sober second thought. We require you to stand up for what we believe in as Canadians.
The issues that we debated 13 months ago are no different today. The issues include privacy, racial profiling, sharing of information, concentration of executive power and a community at risk. Canadians are at risk. It is no different now than it was then.
What have we seen in the last 13 months? Let us talk about that. Twenty-one South-Asian Muslim gentlemen were rounded up on the grounds that they belonged to a terrorist cell. The RCMP backed off from those allegations pretty quickly, but the taint was still there.
We are talking about the misuse of information. In regard to this bill, we are talking about the unfettered discretion to disseminate that information.
These 21 Pakistani gentlemen were picked up on immigration charges — overstaying visas and things like that. Why were they tainted with the spectre of terrorism?
Thousands of Canadians are being profiled. All we have to do is take a look at air travel. You do not have to look beyond this room to see examples of racial profiling at the airports. Every honourable senator knows that, because Senator Jaffer has spoken to that eloquently within our own Parliament, our Senate.
We have particular problems at the American border. Business people and professionals who have to do business in the States are having difficulties. We are Canadians. We are just like you, but no, we are not. Look at the colour of my hand; I am not like you.
My name is Khalid. That matches the name of a suspected terrorist. I will be pulled aside. I am pulled aside. If your name is Mohammed, which happens to be one of the most popular names in the world, you will be pulled aside. This happens day after day to your neighbours, to your people, to Canadians. Our mobility, our right to earn a living and our freedom to travel are affected.
Our government has set up information-sharing protocols with the United States. This is something that Mr. Tassé talked about, whereby the provision of private and confidential information to American agencies is not only easier than ever, but also mandated. This is something we are doing right now.
Our government can certainly mandate responsible dissemination of information. Once it is out of our hands, there is no power. Ms. Webb talked about that. Once that information is out of our hands, who knows what will happen to it? Whether you have a twenty-four hour or seven-day period, or a one-year review, it does not matter, because the information will be out of our hands and in those of foreign powers and agencies. Those organizations may or may not be benign.
The Muslim community is a community at risk. Many Muslims in Canada come from repressive regimes. Many of us came to get away from this type of information dissemination and discrimination by our own governments.
In other countries, and they may be countries we visit or come from originally, that information may not be treated as kindly as our own government would treat it.
Finally, there is the case of Mr. Arar. You are probably getting tired of hearing this, because it seems Bill C-7 really has nothing to do with Mr. Arar, but it does. It has everything to do with Mr. Arar. The reason is that this bill involves information sharing. Information was sent from a Canadian agency to an American agency. That information was subsequently used when a Canadian citizen was incarcerated and tortured. We are not talking about theory any more. We are not talking about what might happen here; we are talking about reality.
This is what is happening out there to us. This is why we are here to talk to you about it and hopefully engage you so that we can take a look at our primary social contract.
I want to make a short note about the timing issue before Mr. Mia gets into some specifics. This bill has been on the books for 28 months. We had Bill C-36, which brought in sweeping powers. Bill C-36 is preventive legislation. Mr. Read, when he was here on Tuesday, referred to that. Your own bureaucrats are telling you that Bill C-36 is the preventive legislation. This is not preventive legislation; this blows the doors open. We do not need this. We have not needed it for 28 months. The inquiry into Mr. Arar's case is coming up, so we can find out just what happened and what is going on. Why can we not wait until after that inquiry? We have the three-year review on Bill C-36 coming up. Why can we not wait until after that review to figure out what will happen?
Mr. Ziyaad Mia, Director, Muslim Lawyers Association & Coalition of Muslim Organizations: It is certainly a pleasure, every time I come to Ottawa, to take part in these hearings. I am not a big fan of these topics, but they certainly speak to the health of the democratic process in this country, and I take that seriously. I am not given to hyperbole, and that is why I get to deal with the dry matters of the clauses.
This certainly is a significant hearing. This is a significant bill, and I would also say that it is historic, as historic as the Anti-Terrorism Act was. It was the most significant overhaul of our law in 50 years. It was passed within a matter of weeks or months. This proposed legislation is similar.
I think it is a faulty bill — I will talk to you about that — and on that point alone, it should fail.
It is historic and important because it changes rights and information sharing, which is ultimately the kernel of democracy, accountability and responsible government in this country, let alone the Constitution. I think Senator Beaudoin would tell me that responsible government is really the crux of what this country is all about and our common law system.
The bottom line is that this will threaten the civil and human rights of every Canadian, certainly the brown ones or those named Mohammed. We know that. Mr. Tassé can tell you that under CAPPS II, there will be three levels, orange, green and yellow, but you know what the real colours are — brown and not brown. It is we who are affected today, and maybe there is not a big fuss about it, but you know that when these powers are entrenched, they will be used against others who are not popular or are victimized or made villains.
Muslim Canadians do not oppose prudent, reasoned and reasonable measures to make our country safer, because we are part of this society and we want to be safe, too. Muslims died at the World Trade Center. We see today that Muslims are dying in terror attacks in Baghdad itself. Our concern is that the cost to civil liberties and our democratic way of life is just too high. It is not a price we want to pay.
The second point I want to make is that it gives us a false sense of security. This does not give us security. It gives the computer industry, the security experts and the bureaucracy something to keep them busy.
When I come here, I usually open with this anecdote from the prophet Mohammed. It is a saying and a teaching of his that Muslims are supposed to be good neighbours to all of their immediate neighbours, but 14 centuries later it is really a communitarian spirit. That is the spirit in which we appear before you today, a spirit of communitarianism and neighbourliness. We are part of this society and we want to offer our advice.
I said that Bill C-7 is fundamentally flawed. As a lawyer, I was amazed when I read this proposed legislation. It is so easy to pull apart. I am not a Supreme Court justice or anything like that.
The experts that you heard from on Tuesday — and you heard from Commissioner Zaccardelli this morning — gave you similar evidence, and I think the theme of that is clear. There are serious, unanswered questions, and there is significant potential for problems. None of those people, including Commissioner Zaccardelli, could answer every question about serious potentialities and risks. No one person really has the overall answer on the impacts or consequences and the oversight of this bill. I am astonished that there are even contradictory views within the bureaucracy and within the testimony of Commissioner Zaccardelli himself.
The gist of all this is that there are significant gaps in logic, and there are shadows here where we do not know what is clear and what is not clear.
Unlike when we were here on Bill C-36, as Mr. Baksh noted, our concerns are not theoretical any more. They are real, and the face of that reality is Mr. Arar. We know what these measures can do. When we were here on Bill C-36, people laughed at us. They said, "You are just scaremongering.'' Well, wake up and smell the coffee. We are living that anti-terrorism law now. Since September 11, 2001, Muslim Canadians have experienced racial profiling and stigmatization. There has been a serious decline in our communities in public participation, just walking down the street, at work, in our charitable institutions, because Bill C-36 criminalizes charitable giving through the outrageous "facilitation'' offence, and I still think there is no knowledge element in that crime.
Bill C-7 will exacerbate this, but again, it is not just the Muslims. We are the canary in your coalmine. Once this is unleashed and entrenched as permanent law — I am quite dumbfounded as to why they do not use the Emergencies Act if they want to use permanent law for emergency or potential emergency situations — it will be used in the future against others who are vulnerable.
You have our written submissions. I urge to you read those because we are short on time. I want to sketch out the kernels of our argument: first, rights at risk; second, the concentration of executive power — you probably are all aware of it; the privacy right. It is rooted in itself, and in section 7 of our Constitution and the Charter of Rights and Freedoms. Equality rights are in section 15 of the Charter. Mobility rights, according to section 6 of the Charter, provide that we should be free to travel in and out of this country and within it without being hounded and subject to surveillance by the state. I would urge you to read retired Justice La Forest's opinion again. He talks about the case law on that, saying that it is illegal to track people's travel patterns, especially with advanced technologies. There is fundamental justice, section 7, and natural justice; things are done in secret. Unreasonable search and seizure is section 8 of the Constitution. These inquiries for information and then the extracting of it are unreasonable searches and seizures. Those are the opinions of Mr. Lalonde, Mr. La Forest and Roger Tassé. Those legal opinions were provided to Mr. Radwanski.
This really speaks to a bigger question, but there is no process of legality or justification in violating our rights, and that is really what the Charter says. When you do violate rights, you need justification, and there is none in Bill C-7. The concentration of executive power really places open and accountable government at risk. I will not go into the interim orders now, but we can talk about that. There are the broad discretion and the delegation of power to, basically, bureaucrats, the power that elected officials should hold.
In concluding these opening remarks, the umbrella of all this since September 11, 2001 is that we are living in a culture of fear. That is not a good way to conduct a society, yourself, your household or a government, or to write law. Bill C-7 takes us away from the rule of law and responsible government and to a society motivated by fear and characterized by reaction. This is evident from the government's sales pitch on Bill C-7. It is just ridiculous. They have been coming here and selling you fear, fear, fear to pass this bill. It is time for this to stop. History has proven that fear and reaction also inevitably diminish responsible government and produce unjust law.
One poignant example of this is the war in Iraq and the bogus weapons of mass destruction. What a bill of goods we were all sold there. That was all based on fear.
The fundamental question here goes above and beyond the bureaucratic minutiae that witnesses were here to speak about on Tuesday, and it goes beyond technical amendments. The question is this: What kind of society do we want? One motivated by suspicion and fear and governed in secret? Or do we have one built on reason, compassion, open government and the rule of law? I submit to you that Bill C-7 takes us closer to that former society.
Honourable senators, you are the final vanguard on this. This is the last stop on the road to this bill becoming law. I have been told that it is quite unlikely that this will be stopped. One minute more, please.
The Chairman: Mr. Mia, you have already had 20 minutes.
Mr. Mia: It is in your hands. You are the vanguard and I ask you to stop it.
The Chairman: I intensely dislike cutting people off, but I hope you understand that it is because we want to put questions to you.
Senator Andreychuk: On that point, I regret that so many of you were put together on one panel. I think all of you have a message and we should have taken the time to hear it fully. That is really the crux — not just the compelling case that the government can make but the compelling case that Canadians can make. We have to weigh that. I regret the time was short. However, I am pleased that at least some of you were able to respond in writing so that we can benefit from your broader input.
The crux in this bill is twofold. First, do we need new laws when there may be old laws on the books that are doing the job that we want on security and safety? Second, if we need something new, is it the least intrusive into our other rights and have we found the right balance between security and other rights?
Without going into your statements, does anyone disagree with those kinds of principles as to what we should be looking at?
Mr. Friedman: I think there is one other principle that you should be concerned about. That is, we have all talked about this being a historic occasion. The fact is that the relationship between citizens and states has been changing dramatically over the last 20 or 30 years. This is not all since September 11. This has been going on for some time.
Today, an individual can threaten a state with mass murder, because any individual in the world can build his own little atomic bomb. We are indeed faced with a serious problem that is global in nature, and it is not just since September 11. The only thing that has happened since September 11 — and this is really unfortunate — is that we have been forced to act quickly. We should have been doing this since 1985, when 300 Canadians were blown out of the sky. Why did we do nothing? We erased the tapes. You ask the families and friends of the people who died on that airplane if they would not have appreciated a little better security from the Canadian government and the authorities. That is one issue you must also face. I am not saying it is easy, and I do think there are serious repercussions for civil liberties.
Senator Andreychuk: I think that was my first statement. Perhaps it is the long time we have been sitting here without a break. My point is, security is important. Our other rights are important. Do we need new laws at this moment? I said a long time ago, in the Security Committee, which was to the credit of the Senate, that we have information about problems to which we are not paying attention. Read the report two years before September 11. It is not a question of what we should have done. At this point, do we need new laws, or do we have existing laws that cover those areas? You can pick 20 ways to attack protection and security. Are we taking the least intrusive way to meet that objective?
Mr. Friedman: I think you are asking a third question. Always bear in mind the consequence if you make the wrong decision. That is all. Of course, that is a huge problem with which to deal.
Mr. Mia: My short answer to that is, you are right. I do not think we have looked carefully enough. We have the Emergencies Act. I think Bill C-36 short-circuited that process, as does this bill. Certainly, there are some things the Emergencies Act does cover, like the information-gathering process.
The Chairman: What about the National Security Act?
Mr. Mia: You trumped me on that one, then. If you gut Bill C-36 and Bill C-7 and say, "Let us overlay that with the powers that are in the Emergencies Act,'' knowing full well that the Emergencies Act has checks and balances and parliamentary oversight, and that it was drafted in direct contemplation of a War Measures Act that did not and went overboard, then we do not have a lot left in Bill C-7. With this bill, we are making emergency legislation permanent, which is troubling to me, and we are removing accountability and parliamentary oversight, or any other oversight. We can go on and on about interim orders. A lot of this is done in secret. It is usually one man or one woman deciding, in secret, that this is required, and then they decide when it is no longer required. There is no oversight. You do not know when your information is being misused. There is no recourse, either politically or judicially, and there is no compensation. Arar is a classic example of this. The RCMP and CSIS were stonewalling him, and there are allegations they were running a smear campaign against this man.
Those are the kinds of problems I see, in terms of old legislation and new.
Senator Jaffer: You are talking about the Air India incident, where people who looked like me were killed. It took all these years to come to trial. I guess those lives are not as important.
Mr. Tassé, you talked with my colleague, Senator LaPierre, about whether we have a mirror system between the U.S. and Canada. Senator LaPierre asked Mr. Read this question, and I would like you to elaborate on it for my friends. Is the same system that is in the States being set up here? Your colleagues have told me about what happens to them. The professor from Memorial University and people who work for the U.S. Defense Department will not go to the U.S. because of what happens to them at the border. If you can give us written testimony that would be useful.
Mr. Baksh and Mr. Mia, you heard Commissioner Zaccardelli talk about Bill C-36 and how he has not applied the provisions. Maybe you can tell my colleagues here what happens to the Aboriginal community under Bill C-36.
Mr. Tassé: I will not go into much detail. If you have a chance to look at the document that will be circulated, go to page 11 and also page 8. There, you will see the description of the timelines and the joint operations. It is a parallel project with the CAPPS II project. The description states that this funding is necessary for Canada to honour commitments made to the United States to implement a national centre of expertise and make system enhancements to support risk scoring and EPR, PNR connectivity and information exchange.
All the language there is about being compatible, developing the same computer programs and the same criteria for risk assessment. It appears to be truly a parallel system to the CAPPS II. I would urge you to ask questions of ministers and bureaucrats next week. We do not know more than what is in those documents at the moment.
The Chairman: That is in the document called "Advance Passenger Information, April 2003.''
Mr. Tassé: That is correct.
The Chairman: It is being distributed now.
Ms. Webb: May I add to Mr. Tassé's answer? Under American law, the American government is mandated to ask this of other countries. These were their demands when they negotiated a PNR sharing agreement with the EU, namely, direct access to airlines' computer systems, access to data for all flights, not just U.S. bound flights, the ability to share data with federal agencies other than customs and for purposes other than anti-terrorism, and the ability to store the data that they receive from countries for 50 years.
The EU gave in to many of these demands. It is quite clear that this system envisions the harmonization, sharing and use of information by the United States without controls. That is in these documents. Details on what happened in the EU negotiations and the American law that underlies and is driving this whole regime are found in this document here, which I will give to your clerk.
I will also give two written examples of the kinds of testimonials that we are hearing regularly by telephone and in our national councils.
Mr. Baksh: Your third question is on the use of Bill C-36. Commissioner Zaccardelli indicated this morning that, to his knowledge, Bill C-36 is not being used. However, contrary to what the newspapers have indicated, we do know of at least one report of the use of Bill C-36 against a First Nations group on Vancouver Island.
The Chairman: Did the RCMP use those provisions? Commissioner Zaccardelli was only referring to use by the RCMP.
Mr. Baksh: That is our information, yes.
Mr. Mia: I believe it was a combined national security team involving the RCMP.
The Chairman: Do you have documentation on that?
Mr. Baksh: It was reported in the Ottawa Citizen and we will dig that up for you.
Getting back to what Senator Andreychuk said about the need for legislation, many times, they do not need to use Bill C-36. Many times, they are using existing security legislation, especially under the Immigration Act — the use of secret evidence, closed trials and detentions without charge. Those powers are already in different acts and they have been copied into Bill C-36. Again, we are seeing the same thing with Bill C-7. We do not need a lot of these provisions because the information is available. Bill C-7 just goes way overboard.
Our Muslim community understands — and we have heard many reports to this effect — that the RCMP and CSIS do not need to use Bill C-36. They simply need to threaten you to get their so-called voluntary interviews. I am putting "voluntary'' in quotation marks there. They say, "Come and talk to us, because if you do not, there are things we can do to you. I could just take you downtown now.''
Guess what? All of a sudden, the person wants to talk to them. The mere threat of preventive arrest under Bill C-36 is enough to get people talking. Have the RCMP used a specific section of Bill C-36? Perhaps not. Have they used dirty tricks with regard to it? Absolutely.
Senator Beaudoin: I think Mr. Mia said that we have before us emergency legislation that is permanent. This was my problem from the beginning. We had the choice a few years ago of what we should do about our problems. Should we declare the emergency doctrine? We have changed the War Measures Act, of course, and we now have a much better piece of legislation.
We have the choice between emergency doctrine and special statutes. The government, for one reason or another, selected the second theory. We are, in fact, in a period of emergency that is permanent. It is nearly a contradiction in legal terms — permanent emergency doctrine. It works, but it is not perfect. That is the problem.
I have been listening. The debate today is very good. Mr. Potter said this morning that we should first have the review, and then legislate. I am inclined to think he is right. It is one thing to legislate, but if we do not review Bill C-36 and the others, then we are going in the wrong direction. We must review what has been done and act after that. I prefer the review first and Bill C-7 after. Do you agree or not agree?
Mr. Mia: I agree without exception, but with some additional comment. I think you are entirely correct. Permanent emergency is an oxymoron, to begin with. Noam Chomsky talks about "national security states.'' Really, a permanent emergency is a national security state. It is Chile under Pinochet. It is basically what the CBA said in their press release about Bill C-17 last year: These are steps towards a police state.
When you have an emergency, deal with it as an emergency. I am not saying there are no times when rights must be derogated. The Charter has section 1. The International Covenant on Civil and Political Rights and all other international human rights norms have derogation clauses. However, there is accountability. There are steps to be taken. Take it out of the dark and put it into the light where the public can review it.
The citizens of this country should not be policed and seen as criminals. We are the ones who put government in power and they are responsible to us. This is flipping the relationship between citizen and state and saying, "You need to be policed and controlled and monitored.'' That is a police state, I submit to you, and not a democracy.
Senator Beaudoin: I agree.
Mr. Friedman: I am sorry to disagree with you a little, but in fact we are in a long-term emergency situation. That is the reality. It may be a contradiction in legal terms, but in reality, it exists. We face a situation where the people who want to blow up other people have not gone away; they are still out there. They can take their time. They need not strike tomorrow. They can strike in a month, in two years, in ten years. The emergency will be a long one.
Mr. Mia: I know the discussion is between the committee and the witnesses, not among the witnesses themselves, but I would ask my colleague, Mr. Friedman, a rhetorical question: When does the emergency end and who decides what the criteria will be?
Senator Graham: I allowed earlier that I am not a lawyer, but I have two sons who are. It is very difficult to get a yes or no in my family.
This is a general question. Are there any restrictions on privacy rights or other civil liberties that are justified in the name of security? For example, are there any circumstances in which you believe it might be justified to collect personal information on airline passengers?
Mr. Mia: Our position, as I mentioned in the opening, is not against all security measures. I can understand that airline threats are top of mind because of September 11, 2001, and now other forms of transportation. Fair enough. You may want to use that passenger manifest, aside from the fact that no terrorists fly under their own name, but authorities may have intelligence about aliases. Run that manifest through the known database, and when there is a match, secure that flight. Destroy the non-matches immediately.
My concern is that it is not entirely clear that those non-matches are destroyed. Once information is in the hands of CSIS, it is held forever, and the director of CSIS makes his own decision on whether to retain it after a year or not. It is a reverse onus, as the CBA said, and proposed section 4.81 is a bit of a leaky sieve. I recommend you read it. It says information can be passed on for "transportation security,'' but when it is passed to Citizenship and Immigration, you flip to clause 72 of this bill, where it says for "conduct of international affairs'' and "arrangements.'' That goes back to what Mr. Tassé was saying about the algorithms of CAPPS and the Smart Border agreement.
Start with transportation security, the next thing you know, you are in Syria.
Senator Graham: I have many other questions.
Senator Corbin: I will say this: My brother, who was a medical doctor, always told me living is a dangerous occupation.
Senator LaPierre: I consider this discussion rather irrelevant. This is not a Canadian bill. This was not drafted for the security of the Canadian people. It was drafted essentially to placate the Americans. The price of living next to the United States is an abrogation of Canadian sovereignty, which is more and more in danger. I am 74 years old — 75 in November — and by the time I am 85, Canada may not exist, at the rate that we are now going, being subject more and more to the dictates of the Americans.
The time has come for us to wake up to reality. This bill, Madam Chair, is completely useless because it does not afford any security to me or to my grandchildren. All it does is placate the Americans, and we continue to do that every day. Thank you very much.
The Chairman: Would one of the witnesses care to comment?
Mr. Tassé: I would like to amplify what Senator LaPierre is saying. By virtue of the Patriot Act — I do not know how much is known in Canada — the American authorities can ask any American companies and their subsidiaries operating anywhere in the world for personal data that they hold on their clients.
Equifax, the company we have read about in the newspapers in the last few days, is a subsidiary of an American company. It does all the credit checks in Canada and has all the information on Canadians' banking operations, finances, et cetera. If the FBI asks Equifax for the data of all their clients, by virtue of the Patriot Act, Equifax is obligated to give them the information and also not to tell anyone. In theory, the American agencies already have access to the most profoundly intimate details of personal data of Canadians through the Patriot Act.
The Chairman: We cannot amend American legislation in any way. We can do what we can with our own system.
Mr. Friedman: I respectfully disagree. Canada has its own reasons to increase and improve its security measures. We do not necessarily agree with the information-sharing provisions set out in this bill. However, we obviously need to improve the security measures in this country. Whether this is the best way or not, I am not prepared to say. However, it is something we will have to come to grips with some day.
Senator Day: Like Senator Graham, I have many questions arising out of your points, but I would like to say, first, this is not the beginning of the three-year review of Bill C-36. We have discussed a great deal, and you were asked to respond to questions with respect to, the anti-terrorism bill. That is not our mandate here. That should be made clear. Our mandate is to deal with what is in Bill C-7 and that bill only. You made many general comments with which many of us agree, for example, my friend, Senator LaPierre.
Senator Jaffer: A point of order: When my senator friend spoke in the Senate, he said this was the last of the three. Bill C-36, Bill C-44 and Bill C-7 go hand in hand.
Senator Day: What is your point of order?
The Chairman: That is not, in fact, a point of order. Senator Day is right. This committee's term of reference is to examine Bill C-7, not Bill C-36 or any other legislation.
Senator Day: I obviously did not speak clearly enough. There is a built-in three-year review in Bill-C 36. That is not this committee's mandate. That is my point. Are you with me now?
Senator Andreychuk: On a point of clarification, surely, when we study Bill C-7, we do not do so in isolation. Every time the Standing Senate Committee on Legal and Constitutional Affairs studies a Criminal Code amendment, we put it in the context of the Criminal Code because it has an impact on other pieces of legislation and on policing and enforcing. Surely, Bill C-7 cannot be taken in isolation. It must be taken in the context of anti-terrorism legislation. The minister said so.
The Chairman: Senator Andreychuk, that is not a point of order, either.
Senator Day: Obviously, you misunderstood my question. Built in to Bill C-36 is a three-year review. It is built into the legislation. This is not that three-year review. That was my point. Are you with me now?
Senator Andreychuk: Now I understand.
Senator Day: I was trying to speak too quickly.
Senator LaPierre: You have forgotten your question.
Senator Day: I am wondering if you have had a chance to review this proposed legislation that we have the mandate to study. Does your silence with respect to the other provisions, such as the implementation of the toxic weapons convention and the protection for reserve Armed Forces personnel who are called up in the case of an emergency, mean that you are okay with those? Did you come to speak just to proposed sections 4.81 and 4.82?
Mr. Baksh: First, there is not silence, because in our submissions we referred specifically to the fact that time and organizational constraints mean we cannot go through every clause of this bill. We are not the Department of Justice and cannot go through it with a fine-toothed comb. There are alarming problems with the bill. Those are set out in our submissions, and I would refer you to that.
Specifically, with regard to the reference to Bill C-36, we know this is not the three-year review. We want a full three- year review on Bill C-36, but because legislation was brought in so that we have Bill C-35, Bill C-36 and, at the time, Bill C-42 — which became Bill C-44 and now Bill C-7 — it is integrated legislation. This is security legislation. Most are omnibus bills that gloss over or change entire relationships within the statutes of Canada.
Our submission to the honourable senators is that because this is integrated legislation that effectively changes the social contract, please wait for the three-year review of Bill C-36 and the Arar case inquiry so we can understand what changes you will make, because once you open the barn door, you will not get the horse back in there.
With regard to the specifics you talked about, the biological toxins, et cetera, Mr. Mia will deal with them briefly.
Mr. Mia: There are some things we do not have problems with, for example, biological and toxins conventions and control of explosives. However, do not read our lack of comment on every proposed section as approval thereof. I would rather say we do not approve of any of it for fear of having our name stamped on something else.
Our main concerns are the Aeronautics Act — this transfer of information, the interim orders, the overly broad discretion — the Immigration Act provisions, the sharing of information with foreign governments, and the ridiculous provision whereby they will use transportation security and national security to go fishing for warrants against criminals. I am no fan of criminal activity, but for God's sake, it is entirely legally illogical and unconstitutional. Senator Beaudoin can speak to that. The purpose of the bill has nothing to do with cattle rustling or keeping a common bawdy house. We should not be trawling for that information.
Those are the main points. Please read our submission. I will not endorse the whole bill. Control of explosives, you have my okay on.
Senator Day: Good. Please give us any specifics that could help us. We heard your general comments. You were here, perhaps, when the Privacy Commissioner gave us some specifics with which to deal.
Mr. Mia: The back of our submission has a list of recommendations.
Senator Day: That would be helpful.
Now, Mr. Mia, the only other point I wanted to clarify was, when you were talking about the information being passed along, you talked about the Immigration and Refugee Protection Act and the information that could be given under that. You pointed out the phrase, "the conduct of international affairs.'' Are you also aware that any regulation concerning the use of that type of information must come before committees of Parliament, and we have a chance to scrutinize that before it happens?
Mr. Mia: I am not aware of that.
Senator Day: It is in the bill, at page 55, clause 70(2):
The Minister shall cause a copy of each proposed regulation made pursuant to sections...
There is a list of them, and the one you were referring to was 150.1.
...to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate committee of that House.
We, or another committee of the Senate, will be charged with reviewing that regulation to see how this information might be used.
Mr. Mia: You would review the regulation, but as Mr. Tassé can speak to in more depth, it also mentions "arrangements,'' and you may say that in the case of the Smart Border or US-VISIT or integration of border facilitation, you will approve the structure, but I submit to you that you will not be looking at every minutia of detail of what will be passed on under those arrangements, and rightfully so, once it is in U.S. hands. When Mr. Read came before you, he said he does not know what is in those algorithms nor what they do with the information, and extraordinary rendition is still U.S. policy.
Senator Day: You are right. I was talking about Canada.
Mr. Mia: You have oversight of the general regulatory framework. My concern is that it sets up the interface, but you do not have oversight of what goes through that interface.
Senator Day: That is the kind of detail we need in order to help us decide whether this proposed legislation is needed.
Mr. Mia: I am happy to come back for a whole day.
The Chairman: We would love to hear all of you for a whole day. Short of that, any further submissions that you wish to make in writing we would be delighted to receive. We thank you all. I know it has been a compressed experience, but it has been very important for us to hear all of you.
The committee adjourned.