Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 10 - Evidence - Afternoon meeting
OTTAWA, Monday, May 9, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 12:35 p.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is the twenty-second meeting, with witnesses, of the Special Senate Committee on the Anti-terrorism Act. For our viewers, I will explain the purpose of the committee. In October 2001, in direct response to the terrorist attacks on New York City, Washington, DC, and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, which when enacted, became the Anti-terrorism Act. Given the urgency of the situation at the time, Parliament was asked to expedite our study of the legislation. The committee agreed and the deadline for the passage of Bill C-36 was mid-December 2001.
At that time, concerns were expressed that it was difficult to thoroughly assess the political impact and the potential overall impact of this then proposed legislation in such a short period of time. For this reason, it was agreed that three years hence Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and a less emotionally charged public.
The work of this Special Committee represents the Senate's efforts to fulfill that obligation. When we have completed the study, we will make a report to the Senate that will outline any issue that we believe should be addressed. We will allow our work to be available to the Government of Canada and to the Canadian people. The House of Commons is undertaking a similar study concurrently.
To date, the committee has met with government ministers, officials, international and domestic experts on the threat environment, legal experts and those involved in enforcement and intelligence gathering. This afternoon, we will hear from the Privacy Commissioner, Ms. Stoddart, and, from her office, Ms. Kosseim, General Counsel, Legal Services, and Mr. D'Aoust, Assistant Privacy Commissioner. As well, we will hear from the President of the Canada Border Services Agency, Mr. Jolicoeur and officials from the agency.
This issue was actively pursued in the first hearings onBill C-36 so it is quite appropriate that you appear this afternoon. Ms. Stoddart, please proceed.
Ms. Jennifer Stoddart, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Thank you, honourable senators. I appreciate that the committee has afforded us one and a half hours today to present and answer senators' questions on this topic that we have followed for the last few years.
I would take this opportunity to place our deliberations under the patronage of a distinguished American diplomat, Mr. George Kennan, who died in March 2005 at the age of 104. On that occasion an edited version of his famous letter from the American Embassy in Moscow in 1946, at the beginning of the Cold War, was published. I would like to quote his letter because it demonstrates how the situation faced by Canadians is new, in one sense, but in another sense has historical precedents, from which we can gather guidance.
In 1946, most of the world was bewildered and frightened by the rise of the Soviet Union. Mr. Kennan believed with certainty that a dictatorship could be defeated by a free society as long as it kept faith with its traditions and institutions. He concludes his letter with the following paragraph:
Finally, we must have courage and self-confidence to cling to our own methods and conceptions of human society. The greatest danger that can befall us in coping with this problem of Soviet communism is that we shall allow ourselves to become like those with whom we are coping.
I thought that was appropriate for our deliberations today as one of the themes of my presentation is the importance of maintaining fundamental Canadian institutions, Canadian checks and balances, in the administration of anti- terrorism legislation.
I will turn to my prepared remarks.
[Translation]
You will recall that I have tabled with the Committee a paper prepared by my Office explaining in detail our position on the Anti-terrorism Act. As Privacy Commissioner, I have a responsibility for overseeing the application of the Privacy Act and two separate pieces of legislation in the public and private sectors.
My remarks today will focus on providing an overview of our office's position on the impact of the Privacy Act.
We will close by highlighting some the 18 key recommendations set out in our paper. We urge the committee to consider these recommendations and to examine the cumulative impact of anti-terrorism measures on the privacy rights of Canadians.
[English]
First, I will deal with anti-terrorism and its coexistence with the right of privacy. The Anti-terrorism Act which we are examining today has had a significant impact on informational privacy rights, that is, on the right of individuals to control the collection, use and disclosure of their personal information and on their right to have access to, and request correction of, that information.
The first key issue for this committee to consider is that of proportionality. Regrettably, there appears to exist no empirical evidence to suggest that the measures provided for by theAnti-terrorism Act are necessary. I want to make myself clear: No one denies the reality of the threat that the act was intended to address. No one suggests there is not a terrorist threat. We must ask ourselves whether what the act gains us in security justifies the sacrifice of privacy and other rights. In that sense, we say that we do not have an empirical study of this relationship.
Specifically, the impacts of the act can be grouped into three broad themes. First, the surveillance powers of security and intelligence and law enforcement agencies have been overly broadened. Second, constraints on the use of those same surveillance powers have been unduly weakened. Third, government accountability and transparency have been significantly reduced.
The first theme is: broadened surveillance powers in Canada. Since 9/11, the Canadian government has introduced a series of measures to broaden its surveillance powers over the citizens and residents of Canada. The Anti-terrorism Act has set the tone for creating a broader net for surveillance of organizations and of individuals. Much of the personal information gathered is highly sensitive and part of integrated information systems that process information on a wide range of aspects of the lives of individuals, families and communities. If this information were to be misused, distorted or misinterpreted, it could have serious consequences on the lives of Canadians.
I might also add that public debate over the state's investments in surveillance powers have largely been far removed from discussions of national security policy. Public opinion trends suggest that Canadians are increasingly aware of informational privacy issues and expect a reasonable and balanced approach to a national strategy to combat terrorism. There is strong support by the public for greater accountability, transparency, and oversight of agencies involved in national security.
There is a real risk that, as the logic of anti-terrorism permeates all spheres of law enforcement and public safety, large-scale systems of surveillance will increasingly erode privacy rights in Canada, without a critical assessment of where it is appropriate to draw the line.
I will go on to discuss limiting restrictions on surveillance.
[Translation]
With respect to reduced constraints on surveillance, at the same time that the surveillance powers of the state have been strengthened, constraints on those powers have been weakened. For example, law enforcement and national security agencies are no longer required, in anti-terrorism investigations, to consider other investigative methods prior to applying for judicial authorization for electronic surveillance. The executive branch of government may displace the role of the judiciary in issuing security certificates and authorizing interception of communications. The judicial standard of ``reasonable grounds to believe'' has been lowered to one of ``reasonable grounds to suspect.''
A number of the legislative amendments enacted under the Anti-terrorism Act have had the effect of weakening independent oversight of the surveillance activities of law enforcement and security and intelligence organizations.
Independent oversight is one of the pillars of democratic freedom. The question, ``Who watches the watchers?'' is best answered by ensuring oversight of the surveillance powers of the state by the judiciary and other independent agents. Parliament and Canadians need to question the measures in theAnti-terrorism Act that reduce oversight. Independent review should be the rule, not the exception.
[English]
We will turn now to my third point: decreased government transparency. Amendments brought about by the Anti- terrorism Act have also added to the secrecy surrounding legal proceedings, contrary to the fundamental principles that court hearings should be conducted openly and that individuals should be entitled to know the charges against them and the evidence relevant to the charges.
Among the most significant changes affecting transparency and access of individuals to their own personal information are the amendments to section 38 of the Canada Evidence Act, the section that addresses the judicial balancing of interests between the public interest in disclosure and the interest of the state in national security and maintaining foreign confidences. As amended by the Anti-terrorism Act, section 38 of the Canada Evidence Act provides a broad statutory gag order that prohibits not only the disclosure of the information itself, but also the mere fact that section 38 proceedings have been engaged. These restrictions on disclosure are, in many cases, overly broad.
The Anti-terrorism Act further amends section 38 procedures by permitting the Attorney General to override a Federal Court order that the information should be disclosed. This extraordinary power is unnecessary in view of the judicial rigour that already exists under the Canada Evidence Act which appropriately allows a judge to determine the balance of the competing interests between disclosure and national security.
[Translation]
I will now endeavour to summarize the office's 18 recommendations. As I indicated to you at the start of my opening statement, my office has tabled with the committee a position paper outlining 18 recommendations aimed at improving the provisions and operation of the Anti-terrorism Act.
I will not go over each of the recommendations today, as time simply does not permit me. Suffice it to say that our recommendations aim to contain surveillance, as well as increase oversight and promote transparency. We also ask that the committee consider some general recommendations aimed at improving the privacy protection regime of the federal government's national security framework.
The first recommendation put forward in the paper stipulates that the Government of Canada should conduct an empirical assessment of the effectiveness of the extraordinary powers granted to law enforcement and national security agencies under the Anti-terrorism Act, and the proportionality of the loss of established rights.
This examination should include an exploration of alternative models for achieving national security objectives without unnecessarily encroaching on informational privacy.
As I indicated a moment ago, there exists an apparent lack of empirical assessment by the government of the effectiveness of the extraordinary powers that the Anti-terrorism Act gives law enforcement and national security agencies. This assessment is the necessary precondition of a proper analysis of proportionality.
[English]
I have also formulated some seven recommendations in our paper that address the need for contained surveillance and increased oversight. The suggestions include increased judicial oversight over the activities of law enforcement agencies. The paper includes four recommendations on the need for transparency and openness of section 38 procedures under the Canada Evidence Act. We believe these recommendations will strike the right balance between disclosure and national security interests.
I have also created a recommendation for a security-cleared special advocate position to carry out the function of both challenging arguments that information should not be disclosed to the affected party and in challenging information that cannot be disclosed before the judge. Our office would be willing to offer its policy expertise and experience in applying privacy legislation to assist in the development of special advocates, as it may be needed.
Finally, I have made five general recommendations of importance that deal with the need for a continuing review of the act, and a proposal that the government articulate the operating principles of a privacy management framework for national security, including the development of an internal privacy audit capacity, privacy leadership responsibilities incorporated in the performance agreements of senior executives, privacy protection performance indicators, and a strengthened role for access to information and privacy coordinators.
The elements of such a privacy management framework will be familiar to the government. Indeed, I recently wrote to the President of the Treasury Board, the Honourable Reg Alcock to suggest a number of measures to strengthen the government's privacy management regime. These range from a thorough review of outsourcing and off-shoring of personal information and the development of contractual clauses to mitigate against privacy risks, to strengthening the reporting requirements to Parliament under the Privacy Act.
[Translation]
In closing, let me state simply that the Anti-terrorism Act, as well as other recent government initiatives aimed at combating terrorism, reflect a fundamental shift in the balance between national security, law enforcement and informational privacy, with an associated loss of privacy and due process protections for individuals.
Overly broad state powers in the name of national security may in fact imperil the self-identity of democratic nation states. It is imperative that the means and measures adopted to combat security threats do not end up abrogating the very freedoms that define and give substance to the democracy that we claim to be defending.
Contrary to what is sometimes thought, security and the protection of informational privacy need not be seen as atrade-off, where one is sacrificed in the interest of the other. Both can be achieved with well-designed law, prudent policy, and effective but not excessive oversight.
I urge the committee to carefully consider our remarks and recommendations, which are intended to contribute to the achievement of this goal.
I am tabling the summary of our submission. I will now be happy to answer any questions that you may have.
[English]
The Chairman: Thank you very much for a most concise and precise brief.
Senator Lynch-Staunton: Thank you. Welcome. I do not have any questions because your presentation touched on aspects of what was Bill C-36 that I gather have not been used since the act came into effect.
You point to anxieties concerning certain aspects of the act and, in your recommendations, you pinpoint which sections, in particular, trouble you, but you do not say that the government or police authorities have exercised any of the sections that cause you concern. Am I correct in stating that?
Ms. Stoddart: We refer to the fact that most of them have been rarely, if ever, used.
Senator Lynch-Staunton: Have they been used at all?
Ms. Stoddart: Some have been used once or twice.
Senator Lynch-Staunton: Which ones?
Ms. Stoddart: Immigration certificates have been used several times, and I believe one other power has been used once.
Senator Lynch-Staunton: Immigration certificates did not come under Bill C-36.
Ms. Stoddart: No they did not, but there is a parallel procedure.
Senator Lynch-Staunton: Can you recall what clauses ofBill C-36 regarding privacy have been used?
Ms. Stoddart: I believe only one provision has been used. However, the fact that we do not go into this detail because it is non-existent is illustrative of our first point that is that there is not a proportion between the need for this act and any kind of objectively definable fact situation that would call its pleasures into force. The fact that it has not been used in three years, to our mind, simply underlines the argument. It is perhaps so self-evident that we did not dwell on this because there is a common consensus that this has not been used. I am familiar with the report to a minister of Parliament responsible for the administration of this act that says most of these provisions have not been used.
The mere fact that there is not a lot of jurisprudence on this, with the exception of some of the Canada Evidence Act provisions which we talk about in detail, begs the question that we develop in our brief, and that is: Why should we have such excessive draconian powers when, in three years, we have not seen the need to use them? Should we not turn this situation on its head and look at the justification for having any of them at all because they are not in routine use?
Senator Lynch-Staunton: I am not good at dealing with hypothetical cases. You use terms such as ``excessive draconian powers,'' and I could apply those terms too, if I wanted to use that kind of language, to all sorts of legislation on our books not just this act.
If a section has not been applied there may be a message in that. The government prides itself in not having applied the security certificates, the preventive arrest provisions, and another aspect that was contentious. That makes you question whether we need the act at all. It is a good analysis, but it is all hypothetical — this is what we think might happen if something does take place.
Do you have one concrete example? I think of the Juliette O'Neil case where there was a question regarding the privacy of the information she received. There is meat in that situation. It is all about the information she received regarding what constitutes privacy and confidentiality and how it should be analyzed, protected or whatever.
I apologize if I am being somewhat vague. Yours was a good presentation, but it contained hypothetical situations, and I am not good at dealing with those. I will leave it to my colleagues to enter into a more challenging debate.
Ms. Stoddart: Perhaps we are vague, honourable senators, and perhaps more concrete illustrations would be useful.
I think you have, however, put your finger on the crux of the problem. As a society, and as Privacy Commissioner, we cannot show that these powers are needed. They are not used in a regular way. Should the exercise not be turned on its head?
We make a suggestion that is more practical in the present circumstance. We point out that this law has a provision for one three-year review. We have not been able to find another. At the very least, as a practical matter, we should rewrite these sections and do what our American neighbours are doing. They take the view that these extraordinary measures will automatically sunset unless they vote to keep them in force.
Senator Lynch-Staunton: We do have provisions for two items, but that is different from a review.
Ms. Stoddart: Exactly. We should look to a short time period, a continuing time period. After this review, what will happen? We would strongly suggest that you build in an ongoing review mechanism so that the provisions automatically sunset unless, every three years, it is determined that there is an ongoing need for them. All we can say is we do not see the need. That has not been demonstrated after three years.
Senator Lynch-Staunton: A review by itself is strictly a review with recommendations, which the government may or may not accept; whereas a sunset clause challenges the government to justify the extension of whatever is being sunsetted. I am completely with you. The pre-study we did on Bill C-36 did recommend an overall sunset clause, and that was only taken up in part by the government on two contentious clauses. Hopefully we can come back to that. Thank you for your support.
Senator Fraser: I am a little puzzled. When Bill C-36 was being passed, your predecessor appeared before this committee's predecessor — I know you are not the same person, but you occupy the same job, based on the same office and the same precedents and principles — and asked for a few amendments. They remain. His written conclusion after that process was that, under Bill C-36, all existing privacy rights of Canadians remain fully safeguarded, the oversight role of the Privacy Commissioner remains intact and even the issuance of certificates is closely circumscribed and subject to judicial review. He congratulated the government on this great victory for the privacy rights of all Canadians.
Now you come before us and say that this whole act is excessive and draconian. Could you please explain what happened in the interim?
Ms. Stoddart: Several things, perhaps, happened in the interim. First, today is 2005; the quotation to which you are referring, I presume, was in 2001. I think that what may appear reasonable in 2001 may, with the benefit of hindsight, the intervening years, sober second thinking, reflection, observation and how the law is used or not used, appear different today.
Second, as you mentioned, the Office of the Privacy Commissioner is a function that revolves around a Privacy Commissioner. There has been at least one other Privacy Commissioner in the interim since that particular statement was issued. As current Privacy Commissioner, I bring my own preoccupations to this, which may be different from those of a previous Privacy Commissioner.
Third, my office, the Office of the Privacy Commissioner, has been able to benefit from a lot of scholarship that has gone on in the last few years about the increasing growth of a surveillance state, about the convergence of data communications technology and its links to national security and its increasing use by national security and police forces. Therefore, what may have seemed more reasonable in the anxiety-ridden days of the fall of 2001 is, some four years later, seen to be questionable from the point of view of the protection of personal information.
Senator Fraser: Let me preface this by saying that, like all members of this committee and most Canadians, I think privacy rights are important. However, I am a little puzzled in that you call for an empirical examination of the impact of this legislation, which is, to some extent, what this committee is trying to do. However, when we ask you for the results of your empirical examination, you cannot cite any cases of abuse. You do not bring us any examples to illustrate that your office's interpretation today is more justified than your office's interpretation in the fall of 2001. Therefore, I remain a little bit frustrated. Can you give us any specific empirical backing?
Ms. Stoddart: When we talk about an empirical examination, we are talking about things that are largely beyond the scope of what the Office of the Privacy Commissioner of Canada can do. As you say, perhaps this committee can do that. We believe that Canadians need some kind of objective assessment about what has happened in the security world, what has happened in the application of the law and, therefore, why is this law as it is currently drafted an appropriate response to not only what has happened but what is foreseen to be happening and what are the currents.
We cannot find that. We cannot find this kind of pulling together, so perhaps this is work for the committee. My office certainly cannot do it. We have many mandates and a small budget. We are before the Treasury Board on that question.
Senator Fraser: You and everyone else.
Ms. Stoddart: However, there may be hope in the future that this kind of overview can be given in a reference by the Honourable Minister McLellan to a committee of parliamentarians.
It is difficult for my office and Canadians to understand what is going on. It is difficult to understand what the law is and how the law applies. One of the greatest threats before us as a society is that we have extraordinary powers in a world of quasi-secrecy, and no one really describes what is going on in a way that ordinary citizens can understand. If this goes on indefinitely, it will be an extremely serious situation.
Senator Fraser: This is my last attempt to get clarity on this: You have not had complaints that you have been unable to pursue, is that correct? Can you give us even that kind of``we-have-been-stonewalled'' evidence?
Ms. Stoddart: No, we cannot.
Senator Jaffer: My question relates to an issue that had occupied us some time ago, not in this committee but generally as parliamentarians. We understood that many government documents could be processed in the U.S. Under the Patriot Act, the U.S. government has an automatic right to that information. Has your office been involved in that issue in any way regarding the privacy of Canadians?
Ms. Stoddart: Yes, we have been involved in that question in several ways. It is an ongoing concern of our office. We have a document on that on our website that we published last summer. This fall, I met with the President of the Treasury Board, who assured us that a review of the outsourcing practices of Canadian government institutions was under way, and we understood it would be finished by the winter. The outsourcing review was a precondition to adopting guidelines on the outsourcing of Canadians' personal information that was in the hands of the government.
This review does not seem to be complete. We cannot obtain any information on that. We remain concerned about this issue because our current Privacy Act is a weak instrument; it dates now from a generation. It does not speak to the issue of outsourcing, nor does it speak to the contracting out of the treatment of Canadians' personal information confided to the government. It is need of review and we have mentioned this as one of the reasons for its review.
As you may know, there is also a private sector federal law, PIPEDA, which, being of a more recent generation, speaks to this question and specifies that, if those in control of personal information hand it on to a third party, that third party must respect the principles of PIPEDA regarding confidentiality and security. Private sector information is better addressed by the law than public information at the present time. We are still awaiting a response, and we are quite concerned.
Senator Jaffer: If it is proper, I would ask that, when you receive that information, you share it with us.
Since we are looking at a review, it would be useful if you could share with us what you think would help in your work, especially concerning security issues. What kind of legislation do you think we should recommend in order for you to have the ability to look at the issues, especially on outsourcing? I am concerned about outsourcing issues and would appreciate you letting us know about that, through our chair.
You have also recommended a special advocate position to challenge government claims that information should not be disclosed in the interests of national security. This is appealing to us, especially in light of our discussions last week regarding judges. You support an initiative of government to create a national security committee of parliamentarians. Other witnesses have suggested that a parliamentary committee may not be the best type of committee to oversee these laws because it could lack the institutional memory for this challenge.
Could you please describe for us what the role of the special advocate would be? Tell us whether you think a parliamentary committee would give adequate oversight to those laws, and whether you believe that these roles would be fulfilled by one person or a body to ensure transparency and oversight in the counterterrorism regime. It is a long question, but in the shortness of time I ask it all at once.
Ms. Stoddart: I will start with what I understand of the special advocate. On the dangers and possible injustices that were probably not foreseen, I go back to the previous question of why there was not more objection to this legislation in 2001.
However, think it takes us time to understand the impacts of all these changes.
People may find themselves caught up in proceedings and being judged on information that relates to them — thus, their personal information, part of the concept of privacy — without knowing what the information is. This is one of the classic features of exceptional security legislation.
From a privacy point of view, this is extremely serious. Various jurists have struggled with the question of how to reconcile these two. Here we are taking up an idea that is not unique to us. Others have made the suggestion; indeed, it is largely modelled on the experience of a case that went to the Federal Court of Appeal, the Ribic affair, in which a lawyer had to, first, have security clearance. There are many able lawyers in the Canadian legal community, but few of those whose work has meant they must get security clearance, such as is typical of lawyers who work for the federal government. Provincial government lawyers do not require security clearance. It must be a lawyer who is conversant with the issues, who has the requisite security clearance and, therefore, who can both advise the person who is the subject of the proceedings and advise the court, as it may be, and therefore who has access, through this special role, to the information that the person who is the object of the proceedings does not have. It is an attempt to reconcile and, of course, obeys the law and does not disclose the contents to the person, to reconcile the exclusion of an individual from information that concerns him, which is a basic privacy right, and the issues of national security, which can be very real in a particular context.
That is our understanding of the role of special advocate.
With regard to parliamentary committee oversight, I read the report of Senator Kenny and Mr. Derek Lee. I find this report persuasive. I also find that in many other countries whose democratic structures are like those of Canada, there is a parliamentary committee or a committee of citizens' representatives of some kind. I think that one of the ways that we ground this exceptional security legislation is to bring it as close as possible to ordinary people. The elected representatives and the representatives of Parliament are the closest to ordinary people that we can realistically get in this context. Given the experience elsewhere, particularly in the United Kingdom, this is an appropriate way to provide oversight.
Senator Andreychuk: Thank you for putting what I think is the essential difficulty that we will have to face, which is that we are concerned about our security. We are continually bombarded by threats coming from everywhere. We are told they are different today from what they were before. We know that some of them have been discounted, but we also know some of them had some validity. The government continues to say in justification of any action or any legislation that it must have these tools because it must act quickly.
When we were dealing with the bill, Minister McLellan's point of view was: ``I do not know where the threat is, so I have to be sure to have all of the tools that I, with my officials, can possibly envision, to be ready.'' That, to me, is where the dilemma arises. Many regimes, other than democratic, have said they need all the tools to maintain security. What distinguishes a democracy from other regimes is some sort of accountability. When an action is taken in secrecy with no scrutiny, we do not know what is going on, nor do know if it is being done legitimately for purposes of our security or whether it is being done for convenience, or any other motive, by any government or official. Therefore, we seem to undermine our officials because we are always questioning them, whether it is the minister or someone else, because we have no other means of measurement. Is it not important that we have some ability to scrutinize these acts?
I point out that, every time we have a review that seems to expose these matters, and people say ``This will be our opportunity to see whether the government has used the powers given to it properly,'' the government comes in and says, ``No, the judge or inquiry commissioner will not get this information because it will jeopardize national security.'' The very mechanisms we have put in place to this point have not produced a level of reassurance. Is that what you are getting at?
Ms. Stoddart: Yes, honourable senator. In fact, one of our major themes is increased transparency and openness, and asub-theme could be, if you look at our comments on the security certificate, to let us use those review mechanisms that we already have and, I would say notably in Canada, the judiciary. The little experience that we have, if we look at the Ottawa Sun case, the Ribic case, the O'Connor inquiry and so on, those are the glimmers we can see of the actions around these laws.
We have, in Canada, an upright, dedicated and talented judiciary. Our judiciary is seen as a model in many countries of the world. One of the themes of our proposal is: Let us use the judiciary to provide a check on some of these extraordinary powers. Taking the example of the security certificate provision, we would have confidence that, given the tests the judiciary has invoked, we could see an ongoing review by the judiciary through the appeal mechanism and this would deal with the constant unilateral interference.
What the judiciary has said since 2001 is a balanced approach. This is not the writing of people who will expose Canada to unnecessary security risks. We have an enviable system. We should be proud of our Canadian judiciary and ask them for that second thought. When the executive believes there is a threat, our judiciary could weigh the evidence give an opinion. Presently, the executive can block it out, and that is the end of the story. We do make that recommendation.
Senator Andreychuk: There has only been one test case of the extraordinary powers in this bill. However, it seems to me that the anecdotal evidence indicates that there is a chill effect on communities as a result of this legislation. Perhaps citizens do not operate as freely with as many choices since this legislation came into effect.
We are not certain how the police, investigators or CSIS are utilizing this legislation or the threat of the use of this legislation. Have you considered that factor?
Ms. Stoddart: No, we have not, and that is why a parliamentary committee would be extremely important. People with the appropriate security clearances could look at these issues. We have not done such a review.
Senator Andreychuk: There appears to be some questions regarding transparency and openness by the government in its operations as a trend. Is that something that you consider in the overall picture? Why does the government resist disclosure? Governments of all stripes, 20 to 30 years ago, were rather anxious to point out they were making disclosure and to enter into debate with citizens. You seem to be saying, and I think the evidence supports you, that the situation today is contrary to that. Presently, there is a resistance to discussing certain things.
Ms. Stoddart: I agree with you. There is a lag in defining the circulation of information within the federal government in a way that is the most modern, up to date and consistent with the Charter of Rights. Our own Privacy Act might not, in certain circumstances or in certain perspectives, withstand a Charter challenge. We know that, on a related issue, there is a question of revising access to information. I mention that because it is part of the same issue of where the information is, how it circulates, under what conditions, and how transparent it is, which is part of the fundamental rights of Canadians.
We have tried to make recommendations that are practical and realistic. I started by talking about something perhaps more theoretical as to whether the law should exist as a philosophical stance. Our recommendations, with the exception of that query, are things that we think can be reasonably done in light of what we have seen and heard up until now.
Three or four of the 18 recommendations relate to a privacy management framework in the federal government. I would ask my colleague, the Assistant Privacy Commissioner, who has special responsibility for the Privacy Act, to explain why we are concerned about the lack of an appropriate privacy management framework at the present time.
Mr. Raymond D'Aoust, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada: As the commissioner said, we have written to the Treasury Board asking that they take certain initiatives to clarify the privacy management framework. We have called for a review of the outsourcing implications of personal information in the context of the U.S. Patriot Act. This review was initiated last fall but has yet to be completed.
We also supported the idea of developing a contractual clause to mitigate privacy risks from the off-shoring of personal information. Again, some work has been done but it has not been finalized. However, we were told that Justice and Treasury Board have been working on those contractual clauses.
We also called for a scoping review of data mining practices in the federal government. Last year the general accounting office in the United States did a survey among federal departments and agencies in the United States and concluded that indeed data mining is increasing. Data mining is the practice of combining information from different databases to compile a profile on an individual or organization, whatever the case may be. They found evidence of that in over half of the organizations they serve. Many had plans to engage in that. We suggested to the Treasury Board that a scoping review of data mining is necessary.
There should be a strengthening of the data matching policy. Right now there are gaps in the data matching policies. As an example, last year, under this policy which was adopted back in 1989, our office is supposed to be notified when a data match occurs. We received only 10 notifications in 2003-04. Perhaps there are certain data matching activities not being captured as part of that policy. We have made recommendations to that effect.
With regard to annual reporting requirements, under section 72 of the Privacy Act, deputy heads have to submit an annual report to Parliament on their activities regarding complying with the Privacy Act. The previous commissioner, Bruce Phillips, had made observations that those reports are often decontextualized. There is not enough information for a reader to understand what is happening. We have made recommendations to that effect.
Periodically, we are invited to take part in the work of an ADM-level committee that is developing an integrated privacy management framework to bring in compliance with the Privacy Act, a data matching policy, and also the practice of privacy impact assessments. That is the current privacy management framework of the federal government. We are doing privacy impact assessments, recording when data matches happen and notifying our offices, et cetera.
We go further and suggest that, in the portfolio around public safety and emergency preparedness, there should be deputy heads and that portfolio should have privacy protection responsibilities and commitments as part of their performance agreements with their ministers, as the case may be. Those are a series of measures that would go a long way to strengthen the privacy management framework of the federal government.
Senator Joyal: I have read through the details of your 18 recommendations. You have not considered it appropriate to make recommendations on the definition of terrorist activity as stated in section 83.01 of the act. It says:
``terrorist activity'' means
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and...
You are probably aware that we have heard a number of witnesses who have suggested that the definition should be amended to drop ``ideological, political or religious objective or cause'' on the basis that it has a definite impact on the perception of racial profiling, an issue Senator Jaffer has raised repeatedly. Simply by the definition, if you investigate the ideology of a person, you enter into a field that is, by nature, private. As to ``religious,'' is there anything more private than religion? It may, of course, have a public manifestation, but the way in which a person satisfies his or her religious beliefs is personal. As well, for many people, political conviction is private, and they express it as they wish in public.
As you said yourself, this issue requires sober second thought, because witnesses before us stated that a different definition might spare us the difficulty of evaluating those aspects, while retaining the effectiveness of the definition for the act.
Ms. Stoddart: We have been following, from a distance, the comments on the definition of terrorism.
As you said, given the time we had, we concentrated on the more tangible aspects of the circulation of personal information of all kinds. It is clear that inquiring into one's political and religious beliefs and racial identity goes to the heart of one's privacy and one's personal identity.
I tend to agree with those who have said that we should back away from this kind of a definition. We should look to the objective measurement of terrorism as those who are conspiring to overthrow the Government of Canada and its allies, without going into the background of their motivation. Properly done, this could give us a broad entry point for investigative work, so I echo those opinions.
Senator Joyal: Many of us are concerned about Bill C-55, the Public Safety Act, with regard to exchanging information with another country that will develop data banks, with all the implications that has on the right to privacy of the individual.
In your recommendations you propose elements in relation to the National Defence Act, of course, but I did not see any recommendations dealing with the aspect of the exchange of information. Later this afternoon we will hear from the Canada Border Services Agency. There is definitely an exchange of information through that agency. This is a new phenomenon triggered by anti-terrorist policies generally. It seems that anyone in the street becomes the object of exchange of information, even though the person moves only within Canada. As you know, the Public Safety Act would compel exchange of information even for flights internal to Canada.
In other words, it seems that domestic sovereignty can no longer protect the citizens of Canada within the borders of Canada. This seems to be an important change in our overall approach to privacy rights.
I would like to receive some enlightenment from you on that as it does not seem to be covered by any of your recommendations.
Ms. Stoddart: We did not put it in our brief because we tried to focus on what was in the Anti-terrorism Act and not in the proposed Public Safety Act on which we appeared before you last year. Our position on that is well known. Our objections to and concerns about that are on the website.
The issue of cross-border exchange of personal information is an ongoing theme in our office. In fact, we are so concerned about it that last year I announced an audit of the information that is being exchanged when Canadians cross the border. That audit is under way after a preliminary assessment.
We are also in contact with officials of the Department of Transport about a development of a no-fly list, for example. Such a list has not yet been developed, but ministry officials are working on it. We are concerned about how such a list would be used, how Canadians would access it and so on.
You have touched on extremely important themes in which my office is currently involved, although they may technically be without the purview of this particular act. I am glad you brought this up and I would encourage you, in your review of theanti-terrorism legislation, to look at all the concomitant developments that are changing the privacy landscape for Canadians.
Senator Jaffer talked about the outsourcing of personal information, the globalization of information in the commercial context and the effect of international rules in air transport — ICAO and IATA rules and so on. All these have vehicles that are either in practice or in other acts, and they create a climate in which the anti-terrorist provisions have a heightened acuity because they are not the only ones, although perhaps they are the most severe for certain points of view.
There is also another series of provisions called lawful access in which my office is involved and upon which we are commenting. Lawful access is an initiative that started before 9/11 in response to very legitimate concerns about cyber crime. We know that cyber crime, the international traffic of human beings and so on is a reality, and countries have to unite and find ways of fighting this. Again the questions are: How proportional is it? Can it be misused? When Canada will adopt provisions to put these into law, it will involve, once again, increased surveillance of the exchanges of ordinary citizens outside the terrorist context.
Therefore, there are many things that also go to a picture of enhanced surveillance that we are concerned about, and you have raised some of them.
Senator Joyal: Should we not then review or redefine our approach to the role of Parliament in terms of exercising its oversight responsibilities to changes that have been brought into the system, to put it in the broadest terms, to be sure that we understand the impact over the individual citizen who is not suspected of anti-terrorism?
If I understand your recommendations, they pertain to somebody who is the object of an investigation and the person goes through various steps of the system, if he or she is the object of a certificate or the object of communications and perceptions, that is, the various steps of an investigation.
This is one type of provision within the specific set of circumstances, but there is then the overall society, the overall changes that we brought to the system for persons who are absolutely within the law and who satisfy each and every criterion of the law but become more under surveillance than ever.
If we are to have parliamentary oversight, we must cover both. We cannot just cover the subjects of investigation foranti-terrorist purposes. We must evaluate or take into account at the same time where the changes are into the level of freedom and rights that we had before in terms of our own rights to privacy, keeping information to ourselves and so forth.
We cannot segment the approach in a way that we are only looking at the terrorist. In only considering the terrorist, we will have changed something fundamental in Canadian society as a whole. The Public Safety Transport Act is a clear example of where, for the sake of getting one person, we chase everyone. That is where we start asking: Where is the balance? That seems to be an important change. If we are to establish an oversight mechanism somewhere in the system, the terms of reference of the parliamentary body or other agents in the system should be clearly stated and understood if we want to attain the objectives we want to pursue in maintaining the protection of the citizens and respecting their rights and freedoms as they are enshrined in the Canadian Charter of Rights and Freedoms and in other federal and provincial legislation.
Ms. Stoddart: I could not agree with you more. That is why one of the themes of our brief today is the oversight mechanisms. That is why about one quarter of our recommendations have to do with the privacy management framework of the federal government, which we think is inadequate. The powers and the possibilities that I have as the Privacy Commissioner — and I am supposed to be your parliamentary watch dog on these privacy issues in the federal public sector — are not adequate. They have not been revised since 1983. The Privacy Act is not an adequate vehicle for protecting Canadians' privacy rights regarding the information that is in the hands of the federal government at the present time. I could not agree with you more that we must look at all of the information that is now in the hands of the federal government and those to whom it gives information, which can be sometimes another country and sometimes a company within or without Canada in terms of outsourcing and ask what Canadians know about it, what are their recourses, and what rights is it appropriate to give them in those different contexts.
Senator Jaffer: The international campaign against mass surveillance recommended a moratorium of a number of Canadian security laws, arguing that the privacy of Canadians was at risk. Have you seen the report called ``International Campaign Against Mass Surveillance?''
Ms. Stoddart: I have not read the report. I know they met with you.
Senator Jaffer: Maybe you cannot answer that question.
My colleague Senator Joyal may have asked this question, so if you have answered it, then I will just read the record.
In 2001, the existence of the power of certificates to seal information under section 38(13) indicates that Canada is to be able to assure its allies that information provided to us can be protected. To your knowledge, does Canada receive similar assurance from her allies that Canadian information, in particular the personal information of Canadians, can be protected from release in the event it is shared with one of our allies?
If our Privacy Act protects us here and Canada shares that information abroad, what happens? Are you still there to protect us so that that information is protected?
Ms. Stoddart: Once Canadian information goes abroad, it is no longer subject to Canadian law. Thus, it is important that, when we as Canadians transmit information, whether it be to other governments or commercial ventures, which is the debate about the reach of the Patriot Act, and so on, that we do so under conditions that are clear, and that we know and accept what happens to it. International law means that each country controls what happens in its own country.
One of the concerns of my office is to ensure that, to the extent possible, Canada shares information with its allies and with other countries in ways that are consonant with our privacy law and our Charter of Rights. I refer you to our annual report of 2003, where we report on verification exercises that we did with two RCMP border teams the acronyms of which are IBETs and INSETs. We looked at the memorandums of understanding these teams had with their American counterparts. They seemed to be in order for the most part, but we did see some evidence of informal verbal exchanges of information that concerned us. I refer you to our annual report on that. That is an example of how we can intervene in a practical way on the information sharing arrangements with other countries.
Senator Jaffer: What concerns me is that our government may not be able to release information here because of our laws, but they can release it abroad with no consequences; do I have that correct?
Ms. Stoddart: My understanding is that, if you share information with someone, and either you do not have an agreement in place or an agreement is not honoured, obviously we cannot control the situation where the agreement is not honoured. However, minimally, in terms of sharing personal information, you should have an agreement.
Senator Jaffer: Have you seen agreements in place between our country and our allies?
Ms. Stoddart: I personally have not. Within this exercise, we have employees who have top secret security clearance. My understanding is that they did see memoranda of understanding.
Senator Jaffer: I do not want to see the agreement. That is not my purpose. However, if you could make inquiries to see if there are agreement that protect our privacy when we are sharing information with our allies and submit it to our chair, I would appreciate that.
Ms. Stoddart: I would suggest that we incorporate your request into the audit review that we are doing of transborder information sharing at the CBSA. I believe you are meeting with Mr. Jolicoeur right after us. We have done a preliminary study and we will be carrying that out this year. When we finish that review we could share its contents. Perhaps we could defer our response until we have the whole picture.
Senator Jaffer: Absolutely. I have no problem with that. Will that be this year?
Ms. Stoddart: It will probably be a year from now.
Senator Jaffer: The mandate of this committee ends in December.
Ms. Stoddart: I will write to the chair person and see what we can share with you.
Senator Fraser: The audit that you are doing sounds extremely interesting. Do you make a distinction between information that is concerned with national security or that is being exchanged for national security purposes and other information? When we heard from Mr. Zacardelli this morning, he drew that distinction sharply and said that, when it was a matter of national security information, he did not talk about memorandums of understanding with foreign partners, but he did talk about three ministerial directives governing the various ministries he had to consult here, in setting out what he suggested were some reasonably rigorous standards that had to be met before he would share the information. I am not sure how that fits with what you are talking about. Perhaps you could clarify that.
Ms. Stoddart: We may be sure of how that fits when we have done this audit. The purpose of this audit is to see if, in reality, in this situation, we do conform as a society to the precepts of the Privacy Act. The purpose is also to attempt to give Canadians an understanding, because we know they are concerned and anxious about the information that is being shared across borders and about what happens in a normal, civilian border transaction.I would think we will find offshoots, for example, when information is referred to the RCMP or other agencies, but the bulk of the work will be to describe and audit ordinary civilian transactions, such as when I cross a border in a car or when I take a train.
Senator Fraser: I deal with a call centre in Montana.
Ms. Stoddart: That may be another possible audit. This is just what the CBSA does.
Senator Joyal: When you answered an earlier question, you referred to the Canadian Charter of Rights and Freedoms and its impact on your enabling statute. As you said correctly, the Privacy Act was adopted in 1983, which is the year following the proclamation of the Charter. The Charter, of course, had not been tested in court, and there has now been more than, if I remember correctly, at last count, 480 cases that touch on one aspect or other of the Charter.
In the last year, have you reviewed your act in the context of the conclusions that the higher courts in Canada have drawn of the impact of the Charter and the protection of privacy? If you are to come forward with proposals to review your act, which aspects of it would you consider are more Charter problematic?
Ms. Stoddart: We have started to do that work. I will just name, because we have not done a whole review, two aspects that seem to me particularly problematic. One is the issue, as a matter of principle, of consent to the use of your personal information. That is not stated as a basic right. Like many rights, there are many exceptions, but that strikes you in the modern day Privacy Act.
Another is issues of knowledge about the use of your personal information. One only has a right of access or not to personal information. One does not have a right to challenge its use or disclosure.
A final, obvious thing that I mentioned is the fact that the Privacy Act extends only to Canadian citizens or to people legally resident in Canada. This seems to me to raise issues, I think, as far as back as the Singh decision in the 1980s. We understand the Charter to apply to all people who are subject to Canadian law and the other conditions in which the Charter applies.
This is causing us a few operational issues with the European Union that we have tried to work our way around. Mr. Jolicoeur could talk to you more about this. I personally think it an issue of some embarrassment to Canada, that Europeans, whose data may be collected by Canadian government agencies in the context of flying into Canada or through Canadian air space, do not have any recourse under our Privacy Act. However, we hope to refine our analysis. This work was put aside for several years, but we are taking it up again.
Senator Joyal: Can you forecast when you will be in a position to report on that? Will it be in one of your annual reports, or will it be done in a different context?
Ms. Stoddart: It may be a special report to Parliament about the need to reform the Privacy Act. I would say six months or a year. We have met with Minister Cotler on this issue. We have a joint committee. Ms. Kosseim is working on the committee, so I will ask her to respond.
Ms. Patricia Kosseim, General Counsel, Legal Services, Office of the Privacy Commissioner of Canada: We have met with officials of the Department of Justice and have been looking at what may be a more realistic piecemeal approach to reviewing the Privacy Act and the more high priority issues. Short of an exhaustive review of the entire act, we are looking what issues we want to focus on in short order to remedy, including the important right of individuals to be able to bring to court complaints of inappropriate use or disclosure of their personal information by government institutions which currently, under the present statute, provides them with no court action or court remedy. In fact, we were just in Federal Court last month in a case where an individual was bringing before the court a judicial review application by virtue of the fact that there was no remedy in that specific instance where clearly there was a breach of the act in terms of inappropriate use or disclosure, but there was absolutely no remedy available to the individual under the present statute. Clearly, viewed in today's terms, there are clear privacy and Charter implications for the individual as well.
Senator Jaffer: Commissioner, you said that, for example, a European visitor has no rights. You mean all visitors. You are not referring only to European visitors, you mean any visitor.
Ms. Stoddart: You are quite right to correct me. I said European visitors because the European Union, unlike other countries, and this is the concrete situation where both myself and Mr. Jolicoeur's office have been talking with officials from the European Union, sets as a standard for sharing personal information that other jurisdictions have the same privacy rights, so it came up in that context. I am sorry. No one has any more than the Europeans.
Senator Jaffer: There are no rights for any visitor to this country. It is not that we give special treatment to Europeans.
Ms. Stoddart: No.
The Chairman: Ms. Stoddart, thank you for coming here. We look forward to maintaining this linkage so we can follow your audit. If anything comes up, do not hesitate to give us a call.
We are very pleased our witnesses have joined us this afternoon. For the benefit of our viewers, we are hearing this afternoon from Canada Border Services Agency, which has become very much talked and written about because of the situation we find ourselves in under today's circumstances with the cross-border traffic with the United States and elsewhere. We have with us the President of the Canada Border Services Agency, Mr. Jolicoeur. He is joined by Ms. Deschênes, Vice-President, Enforcement Branch; Ms. Breakwell, Director, Legislative Affairs and Access to Information; and Mr. Dunbar, Acting Head of Legal Services
Mr. Jolicoeur, do you have a brief statement you would like to give and then we will ask questions?
Mr. Alain Jolicoeur, President, Canada Border Services Agency: Madam Chairman, ladies and gentlemen, honourable senators, thank you for your invitation. Before I explain how the Canada Border Services Agency collects and manages personal information in accordance with the Access to Information Act, the Privacy Act, the Charter and other relevant legal authorities, I would like to give you a brief overview of CBSA and what it does.
As you know, we maintain a dual role: to facilitate legitimate cross-border traffic and to support economic development while stopping people and goods that pose a potential risk to Canada. We have a vital component of the national security policy.
With a workforce of over 12,000 public servants, we operate at more than 1,300 service points across Canada and 39 locations abroad. At some of our busiest locations we operate on a 24-7 basis. We manage the nation's borders by administering and enforcing approximately 90 domestic acts and regulations on behalf of other government agencies and departments, and we apply a number of international agreements that govern trade and travel.
We ensure that all travellers coming into Canada are admissible and comply with Canadian laws and regulations. We process all commercial shipments that cross Canada's ports of entry to ensure that our laws and regulations are adhered to and that no illegal goods enter or exit the country. We make sure that all applicable duties and taxes are paid, and we are responsible for interdicting and removing inadmissible people and goods, including detaining migrants who may pose a threat to Canada. We ensure food safety and plant and animal health by identifying and interdicting high-risk regulated commodities at air, land and seaports.
One of our key objectives is to build on the 2001 Smart Border Declaration between Canada and the U.S. to expedite legitimate cross-border traffic. We are able to move low-risk travellers and goods, particularly those that have been pre-cleared, quickly and efficiently across the border.
Separating the high-risk travellers and cargo from those deemed low-risk depends on our capacity to collect and manage information in the interests of both public safety and legitimate cross-border travel and trade. Information that we collect is subjected to an evaluative and analytical process which transforms it into deductive patterns of meaningful inferences.
Intelligence forewarns of activity likely to occur and serves to establish educators and trends. It also enhances risk management capacity and supports decision making and enforcement efforts. Most of our authorities derive from two pieces of legislation: The Immigration and Refugee Protection Act and the Customs Act. For example, our authority to disclose customs information is found under the framework of section 107 of the Customs Act. Immigration information gathered under IRPA is shared in accordance with the consistent use provisions of the Privacy Act and is further supported through memoranda of understanding with the RCMP, CSIS, Citizenship and Immigration Canada and the U.S. Department of Homeland Security and the State Department.
We also administer the Proceeds of Crime (Money Laundering) Act, which sets out requirements for reporting cross-border movements of large amounts of currency. Other authorities come from enforcing the 90-plus government laws at the border that we administer on behalf of other government departments.
The coming into force of ATA did not have an impact on our legal authorities. More specifically, the enactment of theAnti-terrorism Act did not create any new or additional authorities in the Customs Act or in IRPA. Bill C-26 to enshrine in legislation the Canada Border Services Agency also did not create or grant any new power to the agency.
With the mandate that the agency has been given, collecting, having access to and sharing information are essential to our operations. Without this information we cannot be effective. Ultimately, we strive to maintain a balance between Canada's security requirements and the individual's right to privacy. To support our work, the government has introduced Bill C-26, to establish the Canada Border Services Agency, which is currently being reviewed by the House. Bill C-26 would not give us any new power.
We share vital information with foreign and domestic customs and immigration agencies and departments with which we have information sharing agreements, including the police, RCMP and CSIS. Pertinent information received is disseminated to field offices as required through a combination of electronic and manual methods, including lookouts that are protected when entered into our enforcement systems, bulletins and alerts. We can enter into an arrangement with other departments.
I will give you an example of the kind of information we collect. I know you are familiar with the Advance Passenger Information/Passenger Name Record initiative. API is basic information such as the traveller's name, date of birth, citizenship or nationality and passport and other travel document data. PNI is more detailed information and includes the travel itinerary, address and check-in information. We have always received this type of information upon the traveller's arrival in Canada, but now we are receiving it in advance of their arrival for risk assessment and targeting purposes and retaining it for the analytical process. It is a highly effective tool that helps CBSA officers to identify and intercept people who may pose a threat before they enter Canada.
Processes are in place for passengers to access the information given to us. We respect the privacy of travellers and work closely with the Office of the Privacy Commissioner to ensure the information provided for the ATI program is used appropriately in a secure and protected manner.
Access to that information has the potential to reduce long waits at border points without compromising security because officers can concentrate on those who might present a risk. The electronic collection of vital information contributes to an objective assessment because the technology we use is impervious to outside influence or judgment.
In 2004, the government established the National Risk Assessment Centre which manages and coordinates national and international watch lists 24 hours a day, seven days a week. It acts as the focal point and interface between offices at the international, national and local levels. The centre increases Canada's ability to detect the movement of high-risk people and goods through the analysis and sharing of information with frontline staff and international partners.
We consulted the Office of the Privacy Commissioner in drafting Bill C-26 and assured them that data collection and information sharing would be done in accordance with the provision of the Privacy Act.
The OPC is conducting a compliance audit of our information practices. The focus of the audit will be on transborder flow of personal information between the CBSA and the U.S. Bureau of Customs Protection.
The commissioner has indicated particular interest in the collection and protection of personal information as it is gathered and used for specific CBSA operations and within our automated systems. The audit will focus on the collection of information by the National Risk Assessment Centre which supports regional CBSA intelligence programs.
The audit will examine our privacy management framework. This should provide us with practical suggestions on how we can strengthen our policy framework on how personal information is collected, and on how it is used and being safeguarded.
The compliance audit may take a year to complete, but we will be taking concurrent steps to strengthen our capacity and policy framework. The access to information and privacy function will be strengthened so that we will be able to provide further guidance, training, and support to our front line and improve management of individual privacy requests.
We ensure that privacy rights of Canadians are respected with any release of information. When exchange of personal information does take place, it is in accordance with the provisions of the Privacy Act, the Charter, and other legal authorities related to the protection of privacy.
We investigate all public complaints of inappropriate behaviour or misconduct, and we encourage complainants to raise concerns with local management. Clients can write to us or to the minister, and they will be provided with a written response. A decision may be reviewed by the court systems or by another entity, such as the Immigration and Refugee Board, an independent tribunal.
Minister McLellan has publicly stated that she already has the responsibilities of ministerial oversights and the protection of personal information.
Proposed one-time and periodic disclosures require senior officials to consider the merits of a request and to be satisfied that the terms and conditions of the applicable law are being respected, except where the life, health or safety of an individual is at risk. If we believe that a request for information is unreasonable or outside the established parameters, it will be denied.
We rely on intelligence information to protect Canadians. It has helped the government to apprehend terrorists and criminals from Canada and from abroad, to prevent narcotics from hitting our streets, to seize pornography, and to return more than 1,000 children to their parents or guardians in the past 15 years.
Keeping information safe and achieving a balance between security requirements and privacy rights is part of our mandate. We have demonstrated integrity in protecting the confidential and private information of our clients, including several travellers each year.
Strict guidelines for the use and access of information have been established, and retention of passenger information will be necessary to help identify trends over time for security purposes.
Thank you for inviting us today, and we will be happy to answer questions.
[Translation]
Senator Lynch-Staunton: Welcome everyone. I do not know if you followed this morning's proceedings, but I would like to finish a conversation that I started with the Commissioner of the Royal Canadian Mounted Police.
[English]
I am declaring my interest now. I live a few kilometers from the Quebec-Vermont border, and I am familiar with Highway 55 and areas around there.
I will say that some of your colleagues who work on the border are efficient and careful, and we are careful too, so there is no attempt made to take advantage of close associations.
There is, every so often, the question of arming Customs people. What is your view on that?
Mr. Jolicoeur: I do not believe it would be good or necessary to arm border inspectors. I do not believe it would increase the security of the country or the border crossing points. You change the role of the border inspector when you move into that mode. You create an environment that may be different from the one you have now.
The vast majority of transactions that occur at border points are with people who abide by the law. I do not see there being a benefit or advantage to arming border inspectors.
Senator Lynch-Staunton: What are the advantages to the Americans who arm their people?
Mr. Jolicoeur: They conduct their business in a different fashion. They believe they need to arm employees of CBP, Customs and Border Protection. I do not share that view of what is required in Canada. I do not think we need it.
Senator Lynch-Staunton: Is there a problem because the RCMP have cut back and the Sûreté du Québec is stretched in respect of manpower? Am I correct in saying that a border inspector cannot remove himself from his post more than 100 feet or so and, therefore, cannot engage in pursuit?
Mr. Jolicoeur: You are absolutely right. Between official border crossings, the border inspector has no authority to act.
Senator Lynch-Staunton: The inspectors then have to call on the closest police detachment. What has your experience been with that? Do they respond quickly? How many suspects or illegals crossing the border are not reported because there is no one to report them to or, by the time they are reported, it is too late?
Mr. Jolicoeur: I am not sure exactly what your reference is, senator. If you are talking about people entering Canada illegally between border points, we have intelligence on that, but I do not have the numbers. If you are talking about the reports in the newspapers recently about the individual who would not stop or, as it is put within the organization, ``ran the port,'' you are right. We can count only on the local police force to deal with that situation.
We have many agreements across Canada and time and other factors depend on the location and the agreement. We report all those situations and, in some cases, these individuals are arrested, brought back to the border and charged because there was an offence.
We have lost some, but I do not know the exact number. I do not believe that an armed border agent would make things any different in such a situation.
Senator Lynch-Staunton: Commissioner Zaccardelli told us about incidents of people driving through the border without stopping and the that reporting of such people was a discretionary matter. Is that correct?
Mr. Jolicoeur: Our directives are to report. Perhaps Mr. Zaccardelli was referring to the action of local police forces in each situation. The CBSA asks its officers to report each incident.
Senator Lynch-Staunton: Correct me if I am wrong but, if memory serves me right, Mr. Zaccardelli said that local authorities might not be notified.
Mr. Jolicoeur: The circumstance under which they might not be informed might occur when the electronic system for reading licence plates does not work properly. I do not remember the precise percentage of such occurrences, but when it happens we have little information to give to the police, so it might be more difficult for them to act. Most often we are able to capture the information on the licence plate, so there is no reason not to follow up with the police.
Senator Lynch-Staunton: American law enforcement officers have the right to enter private property within 25-miles of the border without permission of the owner of the property. In Canada, you need to have either the permission of the owner or a warrant. Would it help if the law were such that border agents or the police could enter property within a certain radius of the border crossing? I would assume that most people who move across the border hastily have a place of refuge close by so that they can do whatever they have to do the following day. If they keep moving, they will more likely be caught. If the law were to allow border agents or law enforcement officers to enter private property within 25-miles of the border crossing, would that be helpful?
Mr. Jolicoeur: This is beyond my field and more suitable for answering by a police force official. From my narrow perspective, it would certainly be an additional tool for our work. I have not studied the topic, so I do not know what effect and consequences it would have. There would have to be a change in the law. If you were to ask the customs and border inspectors whether it would help them, they would say, yes, it would help.
Senator Lynch-Staunton: I am not trying to put you on the spot and I understand your problem reasonably well. The border is 5,000 kilometres long, ports and airports excepted. I hope that I do not leave this room thinking that much could be done to increase security at the border that is not being done. I do not want to use the word ``ignored'' but we have taken for granted that there is leakage and that it will continue, but no one can tell us, or wants to tell us, how substantial it is.
Mr. Jolicoeur: I would not want to leave this room leaving the impression that the issue of running the ports is a significant concern. The numbers that have been used in the press and the number of occasions that someone does that are low compared to the number of transactions that we are dealing with overall. However, more importantly, in most circumstances, we know where, what and how it occurs. One half of the situation is related to only two locations and we are working on resolving it there. What remains at the end is a small number.
Additional tools and police power to deal with that would be positive. However, when we look at the risk of drugs or terrorism across that long border, we see that it would not be the highest priority.
Senator Jaffer: When Minister McLellan appeared before the committee I asked her about racial profiling. She informed the committee that the department does not racially profile. However, she used a word for which I have not had an explanation, although I have asked. She said that we ``risk manage.'' Could you explain that to the committee?
Mr. Jolicoeur: This year approximately 95 million people and 4 million containers will enter Canada. Before getting directly to your question, I want to say that we will never have the capability to look at all containers in detail or to prepare a thorough analysis of each individual entering Canada.
The basic challenge in an organization such as the CBSA is to determine the priorities and decide where we will look a little deeper. That challenge is addressed by the business of analyzing risk factors. We just go where we believe, for all kinds of reasons, the risk is higher.
In the case of containers, we have developed a very powerful program, a mega program that takes into account millions of pieces of information to give us a score on each container. It is a very sophisticated model. It deals with the commercial aspect, so we are not preoccupied with people, rights and issues such as that. A container is a container. We are a lot more advanced in that area.
On the people side, the reaction that we are getting and that is the subject of this discussion is as follows: Certain groups of people are more targeted than others, for whatever reasons. For instance, in an airport, people come to the primary inspection line and they either slip through or they are sent to secondary inspection for further analysis.
We also have a model that analyzes risk. It does not include any elements of race or religion. It is absolutely neutral. When the decision is made to send someone to secondary for further discussion and verification, it can be done in three ways.
We have a program that randomly selects travellers and a small number is sent to secondary by that system. The officer who speaks to the person sees a flash on the screen that person must proceed to a secondary inspection. That is one method.
The second method we call ``mandatory.'' There are people pre-identified in the system for reasons of criminality or terrorism and those people are sent to secondary.
The third group are those people whom the officers believe for some reason — depending on how they answer some of the questions asked of them — that something is amiss in the way they have responded, and they are also sent to secondary.
However, there is no racial profiling.
In the third method, where the officer selects somebody to go to secondary, the officers are trained on diversity to ensure their judgment is not tainted by any prejudice. The training is important. We have thousands of people making those decisions across the country. Clearly, we do not do racial profiling.
Senator Jaffer: In the training that you do, do you provide manuals to your customs officers on what kind of risk management needs to be done?
Mr. Jolicoeur: Each officer that is put on the front line has to go through a 13-week course in school in Rigaud, Quebec, where they have sessions on all aspects, including sessions on diversity with material. There is also an e- learning tool for diversity that is available to all officers, and that can be printed.
Senator Jaffer: May I ask that you provide to our chair material from your manuals for 2001 covering what you teach the customs officers on risk management, specifically, what you teaching in writing?
Mr. Jolicoeur: We could give you information on risk management in terms of the basic elements that are considered. What we could not do is give you explicitly, publicly, is the recipe so that, if you follow that recipe, you will slip through, no matter how many tons of drugs you are carrying.
Senator Jaffer: I am not asking for recipes, just what you teach the customs officers at the border to look out for since 2001.
An issue that came up this morning with Commissioner Zaccardelli and now with you, and which is causing me great concern, is the privacy issues. I appreciate that you took the time to explain that to us.
When we were questioning the commissioner she was comfortable and because she was comfortable, I felt comfortable that, when it comes to privacy issues within our country, I am sure all the right rules are followed. My concern is that, when you share information with allies, what happens to that information, especially respecting the privacy of individuals. I want clarification on the privacy of individuals, and by that I am referring to any individual within our border, not just Canadians.
Mr. Jolicoeur: Every exchange of information with other countries, in particular with the U.S., is covered by a formal agreement and, in some cases, at the higher level, needs to be approved by cabinet. All of these agreements contain provisions for how the information must be maintained. The majority of these information exchanges deal with what people call intelligence, and that information is not shared with others after that because they must go back to the country that produced that information and ask for permission to use it. If they were not to follow that, they would cut their source of information. They would not receive any more.
In our agreements with the U.S., it is specifically covered what can be done, how long information can be kept, and for what purpose it can be used and nothing else. It would normally be with regard to high-risk individuals.
[Translation]
Senator Joyal: I too would like to discuss the case of persons who enter Canada without stopping at the border crossing. The last time that I crossed over the Canadian-U.S. border by automobile, one lane was open, while three others were closed. The lanes were simply blocked off with rubber pylons about 30 inches high. Obviously, a vehicle could easily drive right over these pylons and take off. Do you not think that one simple, inexpensive way of preventing vehicles from going through these checkpoints would be to erect a gate of some kind? No additional staff would need to be hired. It would be an inexpensive solution and an effective one, up to a point, because a vehicle would be damaged if the driver decided not to stop. If an investigation were conducted, it would be easier to find a damaged vehicle.
In the past year, the media has reported a slight increase in the number of persons who fail to stop at border crossing points.I fail to understand why measures as simple as the one suggested have not been implemented. I am not suggesting that customs officers carry a weapon. That would require complex negotiations with the unions, with everything that move implies, as we well know.
There are often very simple steps that can be taken without having to reopen a collective agreement or bring in legislative or regulatory changes. Your agency could take these kinds of steps, particularly, as you have said, since the problem is confined to several specific border crossing points which have come to be known by those who fail to stop as easy marks, for a variety of reasons, notably because the police station is located some distance away from the border crossing.
To my mind, there are a number of practical steps that you could take to limit the public's perception that one can take the chance of not stopping because no one will catch you.
Mr. Jolicoeur: Erecting gates would solve the problem in part. We did in fact take this step at one especially vulnerable crossing point in Lacolle. One lane in particular was used for other purposes and on numerous occasions, vehicles would illegally pass through. We have since erected a gate to block off that lane.
As for whether red or orange plastic pylons are an effective safety measure, I must say that I am not aware of any instances where vehicles have simply driven over these pylons.
One major challenge we have is that border crossing points are, in essence, gates. We have people controlling the access into the country at a hundred or so of these gates, but there are no fences between these gates.
Some roadways that straddle the Canada-U.S. border do not even have border crossing points. There are many roads like this that people can use to move from one country to the other. When the time comes to consider how to allocate our resources effectively, considering that there are on average five or six lanes at each border crossing point, and 200 or so such crossing points, that would mean buying several thousand gates. To my mind, erecting gates would merely be a disincentive or change people's perception of the situation somewhat. It would not make any real difference in the field. If, as a manager, I was given additional resources, from a risk management standpoint, my first choice would not be to spend the extra funds on erecting gates.
Senator Joyal: Where then would you spend the money?
Mr. Jolicoeur: I would spend it on analysis and research. In our particular field, we employ three basic strategies, a variety of tactics and a number of tools. I would certainly use the money to purchase a number of additional tools. It is important for us to get advance information. Systems have been developed for that purpose. That is the biggest strategy that we employ.
The second strategy involves the use of algorithms and risk analysis programs. The third strategy involves identifying, from the flow of people and goods, those who have received a security pre-clearance, so that we can concentrate on the others. My tendency would be to invest the money in these three strategies, rather than to erect a gate here and there.
Senator Joyal: When you talk about strategies that involve receiving advance information, there is no question that when a person travels to the United States or returns to Canada by airplane, that person goes through several passport control operations — for example, when the ticket is registered, when the person passes through the security checkpoint and again, when the person boards the aircraft. A person's identity is verified at least three times, and each time, the person must show his passport. Therefore, as you said, officials are checking information that is already on record somewhere. A passport provides a certain amount of information. However, when a person enters a country at a border crossing, there is no passport screening as such, as is the case with air travel.
How do you compensate for the different information that can be accessed when a person enters the country by airplane, in order to ensure security within our borders?
Mr. Jolicoeur: Without going into the details, we are especially vulnerable from the standpoint of commercial operations. We have concerns about truckers in some sectors.
Beginning next year, the arrangements put in place one year ago to ensure that advance information is available about all shipments arriving in Canada will also apply to land commercial transportation. We already have a program in place to certify a number of drivers who will have to go through certain procedures, receive a card and a security clearance. At land border crossings, we already use programs such as Fast and Nexus that enable us to do advance checks on certain individuals who would like to be cleared for quick processing at the border. That is one instance in which we could receive advance information.
You are correct to say that the challenge is always a little greater in the case of a land border crossing point. We also have to consider that the Americans are looking at passport identification requirements at border crossings and at more stringent identification cards than the ones we currently use.
Senator Joyal: Where do you stand on this issue? Should persons entering the U.S. from Canada be required to have a passport?
Mr. Jolicoeur: I am not in favour of that requirement. However, I have to say that if this measure were implemented quickly, given the current situation, we could experience serious problems in terms of the flow of people and goods between the two countries. This measure should be implemented in such a way that it would not impede operations and traffic flow. I do not think that we have reached that point yet or that we are ready for this.
Senator Joyal: In your opinion, if a person was required to present his passport, the time it would take to scan that passport electronically would constitute an unreasonable delay, in terms of ensuring the steady flow of people. Is that what you are saying?
Mr. Jolicoeur: At this moment, I can imagine a nightmarish scenario where a van carrying five or six people arrives at a border crossing and the passengers all scramble to find their passports. The driver would not be the only one required to show some identification.
Senator Joyal: The delays would be caused by the actual number of people crossing the border. Can you give us an idea of the number of people who enter the country at a land border crossing point, versus the number of people who enter the country by airplane?
Mr. Jolicoeur: I believe we are looking at close to 70 million who use the land border crossings, versus approximately 95 million who arrive at an airport, but I am not 100 per cent certain. I would have to check these figures, unless my colleague is certain that they are accurate. I can always get the figures to you, but these are in the ballpark.
Senator Joyal: In recent years, how many people have you apprehended who were attempting to enter the country without the proper documentation or identification?
Mr. Jolicoeur: Before I answer your question, I just want to say that we have staff working abroad in 39 countries who make every effort to stop those who do not have the proper documentation or who should not be coming to Canada from boarding an airplane. These employees account for nearly 70 per cent of all successful cases where people were prevented from coming to Canada. They are front-line workers.
There are also workers here in Canada who are responsible for deporting people who either entered the country illegally or who claimed and were denied refugee status. A total of 10,000 people are deported from Canada each year.
Senator Joyal: People who entered the country at a land border crossing?
Mr. Jolicoeur: I am talking about deportations in general, regardless of how the person entered the country. They entered one way or another. We deport 10,000 people every year. Of that total, I would venture to say that the majority entered the country at a land border crossing point, but as to the exact percentage, I cannot give you that figure.
Senator Joyal: How many of those who are in this country illegally have a criminal record?
Mr. Jolicoeur: Approximately 1,000.
Senator Joyal: Therefore, approximately 10 per cent of all the people who are in Canada illegally have a criminal record. Is that what you are saying?
Mr. Jolicoeur: From what I recall, around 1,000 of the people deported last year had a criminal record.
Senator Joyal: For the sake of comparison, do you have an idea of the number of people who might be in the United States illegally and who also might have a criminal record?
Mr. Jolicoeur: I have no idea.
Senator Joyal: What kind of relationship do you have with your US counterparts who perform similar duties and what priorities have you identified with a view to improving security at the border?
Mr. Jolicoeur: We work very closely with them. We are in touch on a daily basis and joint program management is the main tool used to set priorities. My colleague Commissioner Bonnerco-chairs the Smart Borders Working Group with me. The Working Group meets on a regular basis throughout the year to gauge the status of each of the 30 or so projects that are jointly managed. Regular contact is also maintained with Canadian and U.S. employees at land border crossings. We also maintainhigh-level communications in a range of areas with senior officials from both organizations. We do indeed work closely together.
Senator Joyal: What provisions of Canada's human rights legislation differ from U.S. provisions and limit the information that must be passed along to U.S. authorities?
Mr. Jolicoeur: I am not a lawyer or an expert in this matter. We have negotiated an agreement with the American governing pre-clearance. Basically, the agreement will allow Canadian customs officers to work on American soil and to manage access to Canada from the United States. The Americans can work here on Canadian soil under the same agreement, similar to the arrangements already in place at certain airports like Dorval. Passengers can clear U.S. customs at Dorval airport.
One of our biggest challenges has to do with the authority wielded by employees of the CBP bureau, our U.S. counterpart. Some of these powers cannot be exercised in Canada in view of the Charter of Rights and Freedoms. Our procedures are different, and our laws are different as well. I cannot give you any specifics.
Senator Joyal: Can Mr. David Dunbar not enlighten us on this matter?
Mr. Jolicoeur: Mr. Dunbar is an expert who helped to negotiate the agreement. Perhaps he can be of some assistance in this matter.
[English]
Senator Joyal: Can you answer the question that I had put to Mr. Jolicoeur?
Mr. David Dunbar, Acting Head of Legal Services, Canada Border Services Agency: I gather that it is a broader question, not simply about preclearance but about U.S. and Canadian law at the border more generally, is that correct?
Senator Joyal: I asked about the priorities both authorities, American and Canadian, were striving to achieve. Are there provisions in the Human Rights Act, the Charter of Rights, the Privacy Act or in any other act of Canada that would prevent having a total parallel system between the two countries? Where does our system afford greater protection to individuals versus the American one?
Mr. Dunbar: On a practical level, this is not a legal answer, but it may be most useful. If you were to examine the standard operating procedures for on-the-ground officers on both sides, you would find that they are similar because they face the same challenges and they have the same work to do.
On the legal side, there are fundamental differences in the application, for example, of constitutional protections. I hesitate to go too deeply into them because they are so detailed I risk giving a more obfuscating answer than a clarifying one.However, one example might be that the U.S. Fourth Amendment does not apply to certain core U.S. activities in the same way that section 7 of the Charter would apply in Canada.
I do not want alarm anyone when I say that because, once again, if you go back to the way the officers carry out their duties and the procedures they use, they are similar, despite that key legal difference. It would go to legal questions such as the degree of suspicion involved before one can undertake certain intrusive activities in searching or questioning someone. If you want particular case law or more particular answers, I would be happy to give it some thought.
Senator Joyal: What I am trying to understand is what characterizes the situation in Canada that puts limits on what we can do that is similar to what the Americans do. I am sure that, within the framework of your discussion with the Americans, you have gone through evaluations of section 7 of the Charter, legal rights, or some sections of the Privacy Act or the Human Rights Act that put limits on the agreement that you might want to enter into with the United States whereby the United States might want preclearance on Canadian soil. I am trying to understand what kind of additional protection is afforded to the Canadian citizen that is not afforded to the American citizen or to people who are on American soil?
Mr. Dunbar: Possibly the quickest answer would be to go to the existing scheme for air preclearance. There are sections in the Preclearance Act that relate to officer powers: to the kind of searches that they can undertake; to the offences that individuals could commit relative to the actions of an officer in a preclearance zone, such as misrepresenting yourself to an officer. Sections in the Preclearance Act relate to where you would go to seek redress should you feel that you have been dealt with improperly on some decision regarding your entrance or the entrance of your goods into Canada. Sections govern where you would go to seek that redress.
Where the particular negotiations are going on land preclearance is difficult to say because we are in the midst of them. Possibly you would find the sort of structure that one can arrive at in a negotiation with the Americans is already public and in the Preclearance Act. That would give you some sense.
Of course, we strive for reciprocity. That is the key to the negotiations. We would want a reciprocal arrangement between the two countries. In fact, the U.S. legislation relating to preclearance is set up so that it automatically provides reciprocal powers and authorities in relation to Customs and Immigration to foreign officials on United States soil who are carrying out preclearance activities. In that sense, they set themselves up as a mirror. We negotiate and pass legislation on our side, and then they are automatically reciprocated through the pre-existing power granted by Congress in the United States.
Senator Joyal: That is exactly the point I want to understand.I am trying to understand the legal status that an American officer on Canadian soil would have vis-à-vis his Canadian counterpart who has to abide by the legal status afforded him under our Canadian statutes. I am trying to understand the difference in status in terms of the protection afforded by our legislation. Of course, the Americans will want to have the same power given to any other person, but we have limits in terms of negotiating a joint agreement with them. They might want us to have powers that we cannot have because of constraints in our legislation.
Mr. Dunbar: It is much easier for me to speak about the American officer on Canadian soil, because it is Canadian jurisdiction. If an American officer is operating in a preclearance zone in Canada and is going to undertake an intrusive search — something that would be a tort or an assault if conducted without authorization — particular authorization in legislation would be needed to allow him to do that. This is currently in the act.
American officers have a dual legal existence. In Canadian law, they are preclearance officers under the Preclearance Act, which gives them the suite of powers, authorities, duties and responsibilities that are in that legislation vis-à-vis Canadian law and the activities undertaken in Canada. They also have their American legal identity, which relates to the customs and immigration decisions that they are undertaking for the purposes of American law and American policy, which are, presumably, challengeable in U.S. courts. You have to differentiate between the two.
The examination and search powers they are undertaking are found in the Preclearance Act and they are preclearance officers as that term is defined in the act. Therefore, they have a Canadian legal existence with Canadian powers granted to them.
[Translation]
Senator Joyal: Mr. Jolicoeur, could we possibly see the study that you did comparing Canadian laws with corresponding U.S. legislation? In some respects, it provides a framework for your talks with the United States on the limitations of agreements that could be negotiated with that country, bearing in mind Canadian constitutional law.
Mr. Jolicoeur: We can provide you with a series of tables that set out different scenarios on both sides of the border from a customs operation standpoint. The tables show what measures can or cannot be taken in the context of people traveling across the border for work. In any case, it is clear that U.S. customs officers working on Canadian soil will have less authority than if they were working on U.S. soil. To some extent, that is also true of Canadian customs officers working on American soil. In neither case do the customs officers end up with more powers than they previously had.
In some respects, they end up having less authority. In cases where U.S. customs officers have substantially less authority, we compensate by having the Canadian police do the follow up.
Senator Joyal: Therefore, it is possible to meet our security objectives while respecting Canadian rights and jurisdictions which may differ from those in force in the United States.
Mr. Jolicoeur: Precisely.
Senator Joyal: Has a corresponding analysis been done, from a human rights perspective, of the situation when a citizen arrives at a border crossing, whether on the Canadian or on the U.S. side?
Mr. Jolicoeur: I do not believe so. However, I do not think there has been any change. I will ask someone to look into this, but I do not believe the situation has changed. Since the stakeholders have less authority than in the past, people are not likely to have fewer rights than before.
[English]
Senator Carstairs: We began this discussion this afternoon with a question from Senator Lynch-Staunton about arming border inspectors. I want to be on the record as opposing such arming. We are not a gun culture in Canada. I am also opposed to arming natural resources officers, so I am entirely consistent in my position. I just do not think it does anything positive and it may, in fact, create potentially dangerous situations.
I want to return to Senator Jaffer's questions on racial profiling. I heard you say that we do not discriminate on the basis of race or religion, yet a Black MP told me that, when she is travelling with a parliamentary delegation, she is the only one held back.
If we do not have racial or religious profiling, do we have profiling by nation? Are we going to take a closer look at people from the Caribbean, most of whom are Black? Do we have a policy on people from Morocco, the majority of whom are Muslim? Although we say that we have no racial or religious profiling, is there something else going on that makes Canadians feel that they have been subjected to this?
Mr. Jolicoeur: That is a specific question and I will give you a specific answer. There are periods of time when we would be concerned mainly about drugs coming from a specific country, regardless of who is travelling from that country. For reasons of intelligence, there may be a concern for a certain time about people coming from Jamaica or Barbados — one specific country that is known to be a source of drugs for this country. In such a case, our system that analyzes the risk will indicate a higher risk for anyone who comes from that country. Therefore, it is likely that more people on a flight from that country would be sent to secondary. That is the way it is done.
Senator Carstairs: Therefore, there could be the perception of racial profiling when in fact it has nothing to do with race but rather with a risk factor related to a drug issue.
What about a terrorist issue? We have had the al Qaeda from Afghanistan. Would that result, at a time when we are under red alerts, for example, in people coming from a certain nation being rated as a higher risk?
Mr. Jolicoeur: In terms of the people we are dealing with at the border, in order that the statistics are meaningful we have to worry about numbers. The fact that for many years we have made a certain amount of seizures of drugs from a specific country will result in that country being found in the risk analysis system for a while.
When it comes to terrorism, the numbers are small and distributed among many countries. I could check that, but I would doubt that would be a useful tool.
In a situation where you are looking for a small number in a larger number of honest people, you must rely on other information. You must rely on intelligence. In some case it occurs that Mr. or Mrs. X must be looked at and put on a list. When you get the information, it is matched against that list and that would trigger a concern for the individual as oppose to a country, because of a number, but that is the limit of my knowledge. I can check that.
Senator Carstairs: My final question is: Is it possible for Immigration Canada, that has concerns about illegal immigrants coming from a particular country, let us say, for example, gypsies coming from Romania, that that could factor into your risk engagement process?
Mr. Jolicoeur: As an example, Costa Rica, up to a year ago, was a country in America where people did not require a visa to come to Canada. We had many concerns about people who would come illegally to Canada through Costa Rica. We asked our people to focus on flights coming from Costa Rica. Those flights coming from Costa Rica that carried people with whom we were concerned, in a large proportion of the cases, were flights carrying people who were not Costa Rican. People were going to Costa Rica to find a way to come to Canada and were taking advantage of the fact that there was no visa requirement. Our focus would be on Costa Rica, but not necessarily on Costa Ricans. The focus would be on the path or trajectory more than anything else.
Senator Andreychuk: You said you were involved with risk analysis, but not racial profiling. Is your information for risk analysis purely based on what you get from our intelligence authorities, or do you do your own risk analysis?
Mr. Jolicoeur: The model comes from our organization. We try to understand what others are doing, but the model, the analysis and the algorithms are being built in the organization. Some sources of information or intelligence about one specific person being a terrorist or being a risk for Canada, would come from outside, mainly. That would come mainly from CSIS.
Senator Andreychuk: Would you identify someone as a possible terrorist from your own resources or would that signal that a person is possibly a terrorist threat come from CSIS, the RCMP or any other intelligence sources in Canada?
Mr. Jolicoeur: When we talk about a specific individual that we would put on the lookout list, that would come from outside, mainly from CSIS.
Senator Andreychuk: Therefore, you do not identify possible terrorists within your organization. There is no capacity to do that is there?
Mr. Jolicoeur: I may not go as far as that, but the majority of the cases would come from outside, yes. We do not carry on operations outside CBSA, following people or trying to find out who does what to whom. We are not in that business. We are in the business of managing access to the country. A match between an individual and a typical terrorist or otherwise would come from outside.
Senator Andreychuk: Who defines the threat or risk in Canada? As a Canadian, am I anyone's risk analysis? Am I defined as a possible threat? CSIS will openly say that is what their business is about. The RCMP says they are out there finding things out. Do you do some of this risk analysis and define people as potential terrorists when they may not be on anyone else's list?
Mr. Jolicoeur: I would say that we do but that, but not for terrorists. I stand to be corrected. We do the majority of the analysis if we want to follow a pattern of commercial fraud, smuggling of contraband and so forth. We will do our own analysis.
If someone travels by air to Ottawa, for example, from outside the country, we will not have made the match between the individual and the fact that the individual might be a terrorist. We might have received that information and put it in our system, but the risk analysis that we do on that person goes beyond whether or not that person is a terrorist. We may be interested in drugs, contraband or other details that we would put in the system.
Senator Andreychuk: You do take this information from other sources and put your own stamp on it then, do you?
Mr. Jolicoeur: I would say that.
Senator Andreychuk: Is there anyone within your system who supervises that activity?
Mr. Jolicoeur: The organization is made up of about 12,500 people. Of those 12,500, about 5,000 are front-line officers. They are the persons we see and who take you to the back, if they need to, to ask you questions. These people do not decide on anything that is in the system. They do not decide on the process of selecting randomly or the mandated referral to a secondary level. That is done by a small group that is part of the enforcement branch for which Ms. Deschênes is responsible.That is a small group of officers who are responsible tomanage that system. We have a centre somewhere in Ottawa with a group of about 60 people who manage the heart of the system on a day-to-day basis. There is a system of approval to input into the system. There is a management list, which is very important, but that is only open to a small number of employees.
Senator Andreychuk: Would there then be ministerial oversight of this group?
Mr. Jolicoeur: The minister can give direction to the organization.
Senator Andreychuk: Since 2001, there obviously has been a preoccupation at the border and at our airports about terrorists. However, your work for risk analysis goes to, as you indicated, drug, contraband, immigration problems, and so forth. Can you give us a breakdown of how much time you spend on terrorist issues and how much you spend on other key areas?
Mr. Jolicoeur: You do not mean me personally, do you?
Senator Andreychuk: I am referring to the organization.
Mr. Jolicoeur: The 5,000 people at the border do not make a difference. However, if you look at the results, they would probably speak to drug seizures as their big success, something that they do regularly in airports and at land borders.
You do not arrest a terrorist every day. It is rare, I would say. From the system's perspective, the lookout is always there. We are always ready to deal with a situation like that, but it does not occur as regularly as the other activities we undertake.
Senator Andreychuk: I have been told that we have been deflected by virtue of what the American system and our own system requires vis-à-vis terrorism. The officers are more preoccupied in identifying those people and the immigration issues that flow from that as opposed to looking for illegal weapons that come into this country in great numbers and cause much of the difficulty in our own country. Would you say that is a fair assessment?
Mr. Jolicoeur: We are telling our officers to think of consequences. What is the consequence of a terrorist coming through without being stopped at the border? What are the consequences of heroin coming through? What are the consequences of tobacco coming through?
Senator Andreychuk: I am more concerned about weapons and guns coming in.
Mr. Jolicoeur: We have just signed an agreement with the Commissioner of Firearms. We have a process in place to stop weapons. We have equipment for that purpose that we did not have before. It is becoming a bigger part of our business. I would not say that it is less important. I do not like saying it, but I have the impression that, if I wanted to bring weapons into the country, I would use other means, but I do not want to elaborate on that.
Senator Andreychuk: I am not sure I understand that. When we were dealing with the gun legislation, we received reports that many guns came through our porous border at that time, and we should be putting our resources and dollars towards strengthening our borders. Are you telling us that guns come in some other way?
Mr. Jolicoeur: You deal with a very large border. Every time you strengthen one place, you invite the ideas to go somewhere else. We have a system in place at the border crossings. We look for guns. With the bigger trucks, for instance, we use our VACIS system and scanning. We have a process in place to deal with that. To what extent we are successful, I do not yet have a way to measure our rate of success.
Senator Joyal: We have not touched on the management of the legislation over FINTRAC and the people who are carrying over $10,000. I am aware of some cases in the Ontario court based on the Charter of Rights and the fact that the act transfers the onus to the persons to prove that the money that they have is legal. Are there any other cases in relation to other aspects of the act that are presently in the court based on Charter issues?
Mr. Dunbar: I can look into that and get an answer back to you. We are also following those cases. If there are others, I will let you know.
Senator Joyal: One of our major preoccupations is to ensure that your agency works within the Canadian constitutional framework. This is an important issue in relation to section 7 of the Charter. The committee members will want to know where aspects of your operation might run counter to Charter provisions, so we will look forward to getting that report.
The Chairman: Thank you all for coming. These are tough issues, and you have been patient. The committee is most interested in what you are doing. Please do send the information to us. We have a long way to go before we reach our deadline, so in the mists of time, months from now, we may ask you to come back again.
Colleagues, thank you very much. It has been a long day.
The committee adjourned.