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37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, March 18, 2003

1535

The Vice-Chair (Mr. Tony Valeri (Stoney Creek, Lib.))

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

1540

The Vice-Chair (Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance))

Mr. Paul Szabo (Mississauga South, Lib.)

The Vice-Chair (Mr. Paul Forseth)

Mr. Paul Szabo

The Vice-Chair (Mr. Paul Forseth)

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. Ken Epp (Elk Island, Canadian Alliance)

1545

Mr. George Radwanski

Mr. Ken Epp

1550

Mr. George Radwanski

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

Mr. George Radwanski

1555

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

The Vice-Chair (Mr. Paul Forseth)

Mr. Robert Lanctôt (Châteauguay, BQ)

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

1600

Mr. George Radwanski

Mr. Robert Lanctôt

Right Hon. Joe Clark (Calgary Centre, PC)

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

1605

Mr. Robert Lanctôt

The Vice-Chair (Mr. Paul Forseth)

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

1610

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

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

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

1615

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Ms. Carolyn Bennett (St. Paul's, Lib.)

Mr. George Radwanski

1620

Ms. Carolyn Bennett

Mr. George Radwanski

1625

Ms. Carolyn Bennett

Mr. George Radwanski

Ms. Carolyn Bennett

Mr. George Radwanski

1630

The Vice-Chair (Mr. Paul Forseth)

Mr. Ken Epp

The Vice-Chair (Mr. Paul Forseth)

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

1635

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

The Vice-Chair (Mr. Paul Forseth)

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

Mr. George Radwanski

1640

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. Tony Tirabassi (Niagara Centre, Lib.)

Mr. George Radwanski

Mr. Tony Tirabassi

1645

Mr. George Radwanski

Mr. Tony Tirabassi

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

1650

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

Mr. Robert Lanctôt

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. John Bryden

1655

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

The Vice-Chair (Mr. Paul Forseth)

Mr. John Bryden

The Vice-Chair (Mr. Paul Forseth)

Mr. John Bryden

Mr. George Radwanski

1700

Mr. John Bryden

The Vice-Chair (Mr. Paul Forseth)

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

1705

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

Mr. Joe Clark

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. Tony Tirabassi

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

1710

Mr. John Bryden

Mr. George Radwanski

Mr. John Bryden

Mr. George Radwanski

The Vice-Chair (Mr. Paul Forseth)

Mr. Ken Epp

Mr. George Radwanski

Mr. Ken Epp

1715

Mr. George Radwanski

Mr. Ken Epp

The Vice-Chair (Mr. Paul Forseth)

Mr. Joe Clark

The Vice-Chair (Mr. Paul Forseth)

Mr. John Bryden

The Vice-Chair (Mr. Paul Forseth)

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 018

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, March 18, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Vice-Chair (Mr. Tony Valeri (Stoney Creek, Lib.)): I call this meeting to order.

Pursuant to Standing Order 108(3)(g), consideration of the annual report of the Privacy Commissioner, I'd like to welcome Mr. Radwanski, the Privacy Commissioner of Canada, to the committee.

Mr. Radwanski, thanks for coming. I would imagine you have some opening comments you would like to make. Then we'll go to a question and answer session.

Please go ahead.

Mr. George Radwanski (Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada): Thank you very much, Mr. Chairman. I appreciate the opportunity to be here today.

My appearance before this committee is a new departure for me and for my office. As you know, for the past 20 years, since the position of Privacy Commissioner was created, I and my predecessors have appeared before the justice committee, since the position of Privacy Commissioner was created under the Privacy Act, which is justice legislation.

It is certainly my hope that under this new arrangement your committee will give particularly careful attention to the issues I have raised in the overview of my annual report this year, found on the first 18 pages.

Since this committee is now my office's only formal interface with Parliament on the annual report, and since this report raises issues that touch on the fundamental privacy rights of every Canadian, it is of the greatest importance that this committee explore these issues in depth today, call other witnesses as necessary, and, I hope, report back to Parliament endorsing the concerns I have found it necessary to raise.

Let me very briefly summarize those concerns.

Privacy is a fundamental human right recognized as such by the United Nations and enshrined in our laws and in our charter. It is, as Justice La Forest of the Supreme Court of Canada has said, at the heart of liberty in a modern state. That's because there can be no real freedom without privacy.

If we must live our lives knowing that at any given moment someone, particularly agents of the State, may be metaphorically or quite literally looking over our shoulder, we are not truly free. That's why lack of real privacy is a distinguishing characteristic of so many totalitarian societies. It's why privacy and the other cherished freedoms and values that define our society are not frills or luxuries in the current situation.

My report describes the theories of government initiatives that risk cutting the heart out of privacy rights in this country. These initiatives are the Canada Customs and Revenue Agency's new Big Brother passenger database, the provisions of Bill C-17, the Public Safety Act, the lawful access proposals to enhance state powers to monitor our communications, the proposal for a national ID card with biometric identifiers, and the government's support of police video surveillance of public streets.

These initiatives grew out of a call for increased security after September 11, and anti-terrorism is their purported rationale. But the aspects that present the greatest threats to privacy either have nothing to do with anti-terrorism or will do nothing to enhance security. The government is simply using September 11 as an excuse for measures that have no place in a free and democratic society.

I've repeatedly emphasized that as Privacy Commissioner I will never seek to stand in the way of measures that are necessary to protect us against terrorism, even if they involve some new intrusion or limitation on privacy. In fact, I have not opposed a single such measure.

But it is my duty to work against the extension of privacy-invasive anti-terrorist measures to broader governmental or law enforcement purposes that have nothing to do with anti-terrorism, and against intrusions on privacy that simply use anti-terrorism as an excuse or a pretext.

These five initiatives in and of themselves are cause for deep concern, but they're even more disturbing because of the precedents they set and the doors they open. Each establishes a dangerous new principle of acceptable privacy invasion--the creation of dossiers on law-abiding citizens, mandatory self-identification to the police, monitoring of our communications and reading, the removal of our right of anonymity, and systematic police observation of law-abiding citizens on public streets.

In each instance, once the precedent has been established and the principle accepted, further intrusions are only a matter of degree. The situation is all the more worrisome because the government is doing all this, regrettably, in blatant disregard of the concerns that it is my duty as Privacy Commissioner to express.

As Privacy Commissioner, I am an ombudsman. I work primarily through persuasion and discussion behind the scenes. That is the way I've sought to operate since my appointment, and it has produced many successful outcomes. And again, I've never opposed genuine anti-terrorism measures even if they result in some infringement of privacy. What I have insisted upon is that any such proposed measure must meet a four-part test of justification: it must be necessary, effective, and proportional, and there must be no other less privacy-intrusive measure that would achieve the same purpose.

This test allows us to take appropriate measures to enhance security without unduly sacrificing privacy. But each time I have applied this test to the government's initiatives recently and found them to come up wanting, the government has simply brushed my concerns aside.

This, I must tell you, undermines the whole edifice of privacy protection that has been in place in this country for nearly two decades. If the government can simply ignore the privacy commissioner and do as it pleases, then privacy protection in this country will be progressively weakened, and worse intrusions will be inevitable.

Canada has over the course of its history developed a healthy balance between state powers and individual rights. Our crime rates have been comparatively low and our social order strong. Individual freedom and diversity have flourished to a degree that is the envy of much of the world. That is why people from so many different countries have come here and have chosen to make Canada their home.

But now we face having that balance changed by a government that appears to have lost, as I say in the report, its moral compass with regard to the fundamental human right of privacy—lost it, I hope, only temporarily.

Canada is on the verge of being transformed into a society where the state is much more intrusive and where individual rights and freedoms are correspondingly reduced. And we face having this transformation occur without the analysis, debate, or even understanding that it deserves.

As an ombudsman, I don't have the power to stop this assault on privacy. That power lies in parliamentary insistence and public outcry. The government needs to be told in the clearest possible terms that Canadians, particularly members of Parliament, will not accept the needless erosion of our fundamental right to privacy and the weakening of the means by which it is protected.

It is for that reason that I urge this committee to explore these issues and report back to Parliament, endorsing, I hope, the concerns I have raised.

Thank you very much for your kind attention. I'd be glad to answer questions.

¹ (1540)

The Vice-Chair (Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance)): Thank you, Mr. Radwanski.

Yes, indeed, the reporting relationship to Parliament, I suppose from now on, will be through this committee. Things change, and that's, I suppose, the way it will be. I hope you'll be able to help us out as parliamentarians on an ongoing basis and develop that two-way street.

Yes, Mr. Szabo.

Mr. Paul Szabo (Mississauga South, Lib.): I wonder, Mr. Chairman, before we get to questions, whether or not Mr. Radwanski would like to offer any observations with regard to his estimates.

The Vice-Chair (Mr. Paul Forseth): I think we did that yesterday, but—

Mr. Paul Szabo: Well, since he was unable to—

The Vice-Chair (Mr. Paul Forseth): Yes?

Mr. George Radwanski: No, my preference, Mr. Chairman, would be to be here today to discuss my annual report. I was told the estimates issues needed to be addressed yesterday, and for that reason I was asked to send a representative of the office. I'm of course at the disposal of this committee at any time, but I would be grateful if we could keep the focus of this, since it is my only interface with Parliament on the annual report, on discussion of the annual report.

The Vice-Chair (Mr. Paul Forseth): Yes, indeed we will, sir, but I'd just leave it open to you, if you felt at liberty, to comment according to what Mr. Szabo had to say, before we get into questioning.

Mr. George Radwanski: I don't know that I have much to add. I was briefed on what my executive director was asked yesterday and the responses he gave, and unless there is an issue of which I am unaware, I think he probably very ably put forward the explanation of why we have supplementary estimates and what they involved. There's not a whole lot that I feel a need to add.

The Vice-Chair (Mr. Paul Forseth): Thank you very much.

We'll go to the official opposition. Mr. Epp.

Mr. Ken Epp (Elk Island, Canadian Alliance): Thank you very much, and thank you, Mr. Radwanski, not only for your presence here today but also for the ongoing work you do on behalf of Canadians.

I have some questions about your report.

I hope I read you right, that you're not so much concerned about the present level of scrutiny we're subject to by government and various government agencies as you are about where this might lead if it's left unbridled. Is that an accurate statement, or are you concerned about some things that are actually happening now?

¹ (1545)

Mr. George Radwanski: Oh, I'm quite concerned about some things that are happening as we speak. One prime example is that the CCRA is, as we speak, implementing a six-year database of the lawful travel activities of every Canadian who goes outside Canada. This is a comprehensive database of all the information obtained from airlines as to where we travel; with whom we travel; how we pay for the ticket, including our credit card numbers; how long we stay in each destination; how much baggage we bring; what contact numbers we provide, etc. There are more than thirty data elements in all.

This will be kept for six years, not only for its purported anti-terrorism forensic purpose, which I could come back to and to which I would not object to per se, but it will also be available under the information-sharing provisions of the Customs Act to virtually any government department for virtually any purpose. For instance, the Minister of National Revenue, Minister Caplan, has publicly stated that it would be very helpful for things such as catching pedophiles.

What does that mean? Well, it means that, for instance, suppose you take a certain number of trips to a country such as Thailand, which apparently has a flourishing child sex trade. Maybe you go there because you have friends there; maybe you go there because you like the beaches, the food, or the golf, or because you have business. But if you take a certain number of trips there you may be flagged in this database as a possible pedophile just by virtue of the destination.

You would have no way of knowing this because although under the Privacy Act you can normally access information about yourself, there are specific exemptions both for security and for ongoing investigations. So you might be flagged in this way, and you might have hassles every time you cross not only the Canadian border but a foreign border if this information is shared. You might apply for a security clearance and be denied it. You might apply for a job and be denied it. You'd have no way of even knowing, and that's one example.

We asked specifically if it could be used for routine income tax investigation purposes, and the answer was yes. I am tremendously concerned, because in a free society such as Canada the state has no business building dossiers on the lawful activities of every law-abiding citizen. As I said in the past, that's the kind of thing we were horrified about when it turned out the Stasi, the secret police in East Germany, were keeping a dossier on every citizen. I don't want to see the Government of Canada moving at all down that path, but this is a present situation.

I am very concerned in the present about the RCMP's video surveillance of a public street in Kelowna, a matter about which I have received strong advice from a distinguished retired justice of the Supreme Court, Gérard La Forest. He wrote many of the court's most important decisions on privacy, and he believes it's contrary to the charter. I'm trying to fight a charter challenge on this, and the government is doing everything in its power to prevent this case from being heard on its merits.

These are issues in the present, and others are provisions of Bill C-17 that deal with warrants. Sure, it's an issue in the future in the sense that the bill has not yet passed, but it's an important issue not because of what might happen somewhere down the road, but because of what this provision says, which is that the police can in effect use mandatory self-identification. You have to show photo ID to board even a domestic flight, and they can use this information, again obtained from the airlines but under different legislation and in a different context, not only to look for known or suspected terrorists, which again I have no problem with, but to look for anyone wanted on a warrant for any of a wide number of criminal offences.

Mr. Ken Epp: Mr. Radwanski, here's the problem. If there is a terrorist getting on the same plane I am, I want them to catch this guy.

¹ (1550)

Mr. George Radwanski: I agree with you, and that's why I said--

Mr. Ken Epp: How can you do that if you don't identify everyone?

Mr. George Radwanski: No, no, I'm not objecting to that. I'm objecting to one of the uses proposed section 4.82 would permit. In other words, the ostensible purpose of this provision is anti-terrorism and aviation safety, and that can be achieved by having them check the passenger lists with mandatory self-identification against a database of known or suspected terrorists. I accept that; I have no difficulty with it at all. I've asked them to leave that in. I've only asked that they take out the provision that also allows them to use the information to look for individuals wanted on a regular Criminal Code warrant for any of a list of offences specified by regulation.

Mr. Ken Epp: The other question I have has to do with information in databases. We know there are many of them now. There are, by the way, many occasions when we are filmed, some of which I have no problem with. I think your level of concern is maybe a little higher than mine. I remember that situation in Britain where they were actually able to apprehend the kidnappers of a young child by looking at a videotape. That would not have been there if they had been very strict, and I sort of don't mind that. If they video me walking down the mall, hey, I hope they enjoy the view. I don't have that big a problem with it, but that's an aside.

What I really want to get at right now is your answer to this particular question. It is one that really does bother me, and that is that credit bureaus, banks, and even my employer have a whole bunch of information on me. I remember working at a technical institute for many years. We had to fight like everything for the right to see our own personnel file once a year. It was a hard fight to finally get that into our contract, that we had that right to see our own personal file, not anybody else's.

When I think of things like credit ratings and other information the bank or other organizations have on you, I would think there should be a law in Canada that says every individual has the right to access the data that is stored about them in any data bank for whatever reason, whether it's government, big business, or whatever. Do you agree with that?

Mr. George Radwanski: I not only agree, with certain very limited exceptions, but the good news I must share with you today is that we do have such a law. In the private sector there's the Personal Information Protection and Electronic Documents Act, which began being phased in on January 1, 2001. At present it applies only to the federally regulated private sector, so-called federal works and undertakings, which primarily means banks and broadcasting, transportation, and telecommunications operations.

Effective January 1 of next year it will apply to the whole commercial private sector across Canada, with an exception only where a province passes substantially similar provincial legislation of its own, governing its provincially regulated private sector. It may then be exempted from the federal law and the provincial law will apply, but a substantially similar law will apply across the board.

What this law says in a nutshell is the following. First, your personal information cannot be collected, used, or disclosed without your consent. Second, it can only be collected, used, or disclosed for the purpose for which you gave consent. Third, even with consent, it can only be collected, used, or disclosed for purposes a reasonable person would consider appropriate in the circumstances, which is meant to avoid coerced consent. Then you have the right to see the information an organization covered under the law holds on you, you have the right to correct any inaccuracies in it, there's oversight through me and my office, and there's redress if the law isn't obeyed.

Similar principles, although not quite as strong in some respects, apply to the federal government under the Privacy Act, with the exception of matters that are of national security or part of ongoing investigation.

Mr. Ken Epp: You've given me a great surprise, because I've been a member of Parliament here for almost ten years, as most of the people here have--

Mr. George Radwanski: Well, then you voted either for or against this act, sir.

¹ (1555)

Mr. Ken Epp: We voted in favour of this and I've forgotten. When was this? What bill was it?

Mr. George Radwanski: The bill was passed before my time. It's the Personal Information Protection and Electronic Documents Act, and it's the law of the land. We'll be happy to send you an information package right after this meeting.

Mr. Ken Epp: I would appreciate that. We'll check into that, and I thank you.

The Vice-Chair (Mr. Paul Forseth): Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Hello again, sir. I sit on several committees and so I often see your report.

Mr. George Radwanski: I'm always happy to hear that.

Mr. Robert Lanctôt: Me too. I appreciate the work you do, or rather the work you try to do.

Mr. George Radwanski: I do what I can.

Mr. Robert Lanctôt: It's not that you don't try, but rather that the government doesn't seem to listen to you very carefully.

I think you appeared before the Transportation Committee. Then they made a point of saying that the file created would have to be kept for 24 hours; now they're talking about six years. Did they explain to you how they went from 24 hours to six years?

Mr. George Radwanski: Two separate acts are involved here. First, there are the amendments made before September 11 to the Canada Customs and Revenue Agency Act, enabling customs officers to look at information... [Editor's note: inaudible.]

Mr. Robert Lanctôt: For 24 hours.

Mr. George Radwanski: Yes, that's right. They promised in writing that that wouldn't be kept.

As for C-17, that's an entirely different story.

Mr. Robert Lanctôt: We're talking about after September 11.

Mr. George Radwanski: Yes, but it's completely different; it concerns the RCMP and CSIS. In their investigations of terrorists, they'll have access to information about passengers on international flights, as well as about those on domestic flights.

The problem is that in this context, they will also be entitled to use this information to try and find people who are being sought under an arrest warrant, but who don't have anything to do with antiterrorism. These are two separate issues.

Mr. Robert Lanctôt: Why keep such information for six years? Mr. Radwanski, if you travel from Vancouver to St. John's, by way of Quebec City, any information about you will be kept.

Mr. George Radwanski: No. With regard to customs, a file will be opened only for travel abroad; domestic flights will not be affected.

Mr. Robert Lanctôt: On domestic flights, there's just an ID check?

º (1600)

Mr. George Radwanski: No. If you don't mind, I'll continue in English; the issue is a bit complicated, and I've been travelling since six o'clock this morning. I've just come from Fredericton. Also, I can express myself a bit faster in English.

Mr. Robert Lanctôt: That's fine.

Right Hon. Joe Clark (Calgary Centre, PC): But they speak French in Fredericton.

Mr. George Radwanski: I also spoke French in Fredericton, but I'm a bit tired and I'm doing my best to maintain a fast enough pace.

[English]

What they told me was that they had decided to keep this information for six years for forensic anti-terrorist purposes. What does that mean? Well, the explanation was that if there were a terrorist act, let's say in Canada, and the perpetrators were known, then having this information would make it possible to dig back--if it were, say, in two or three years--through this information to look for any possible accomplices or associates that the terrorists might have travelled with. That's the reason they gave.

Frankly, that's not the best reason I've ever heard for keeping a database on every Canadian for six years. Six years is a long time, and it's creating a giant haystack in the hope that eventually there may be a needle somewhere in it. But I said “If this will help even a little against terrorism, fine. But I assume that this is an exceptional database and it will be sealed and not used for any other purpose than that forensic anti-terrorist purpose that was described.” You know, in case of terrorism, break glass. And the answer was, “Well, no. Under the information-sharing provisions of the Customs Act are provisions that basically allow it to be shared with just about anybody for just about any purpose.” That's when my office said, “Would you permit, for example, this information to be available to your income tax side for routine tax investigation?” The answer was yes.

Then the minister started talking about catching pedophiles and money launderers and plague carriers, you name it. That takes us into a whole different realm, and that is my concern.

As far as the anti-terrorism, as I said, I bend over backward to make sure that privacy does not become an obstacle, inappropriately, to making us safer against terrorism. But where I have a huge problem is where anti-terrorism becomes an excuse to do things now that nobody would have dreamed of being able to justify before September 11.

The only thing September 11 created is a terrorist problem. It didn't create a justification for more intrusions by the state in areas that have nothing to do with it.

By the way, if I could take a moment, I realize I didn't respond to Mr. Epp's other remark about video surveillance having caught the people who kidnapped the child in England. In fact, I've spoken with all the leading experts on video surveillance in Britain and, just for the record, I should tell this committee it did not do that. The kidnappers were actually identified in other ways. It was only when they knew what they were looking for did they then find this video, which was helpful but it was not determinative. I didn't want that to stand unexplained.

[Translation]

Mr. Robert Lanctôt: It is undeniable that this type of intervention, in a free and democratic society such as ours, greatly diminishes our freedoms. But after the events of September 11, how can we get information without infringing on the right to privacy? I completely agree with what you say, but the situation will be very difficult. How do we manage to gather only information linked to terrorism? This is a very fine line to tread.

We can choose to become more of a police state, have ourselves monitored and lose our freedoms, as is the case at present. In this regard, I think that bin Laden has achieved his aim. I think it is very regrettable that Canada should adopt such an approach. Do we really need to do so? We need to ask the question and I feel that to ask it is to answer it. What kind of society do we want to be?

The fundamental right to privacy that you talk talked about earlier is international; we're talking about convention here. But, in Canada, it's not even provided for in our Constitution. So, as for as respect for privacy is concerned, we could not even talk about a Canadian Charter challenge.

Mr. George Radwanski: Forgive me for contradicting you; that's possible.

Mr. Robert Lanctôt: This is what I'd like to hear you comment on.

Mr. George Radwanski: This is what I'm trying to do at present in Kelowna; the RCMP is conducting video surveillance in a public street. By placing technical obstacles in my way, the government is doing everything it can to prevent me from doing what I want to.

Mr. Robert Lanctôt: Yes, but you could use other means. Someone else could do so in your place. In short, a problem is set aside and a lot of time is spent...

Mr. George Radwanski: This isn't very easy for an individual, given that it costs a lot.

Mr. Robert Lanctôt: There must be some organizations that can do the same job and get the results faster. That's what I mean.

Mr. George Radwanski: We'll see how things unfold.

Mr. Robert Lanctôt: But in your opinion, it could be done?

Mr. George Radwanski: Yes. The Supreme Court has given decisions on matters of respect for privacy. But in general, how do we strike a balance between a society's security and its freedom?

As I said, we have to ask questions. I also suggested some very specific criteria. If we propose measures designed to combat terrorism and these measures infringe on our privacy, they must be necessary and effective; also what we can do to counteract terrorism must be proportionate to the loss incurred in terms of privacy and there must be no other way of achieving the same goal. If we apply these rules, it will work relatively well. In the cases I've cited today, if we looked at these criteria, that would never pass.

º (1605)

Mr. Robert Lanctôt: Do I still have time?

[English]

The Vice-Chair (Mr. Paul Forseth): We're out of time. We'll now go to the Right Hon. Mr. Clark, for 10 minutes.

Mr. Joe Clark: Thank you very much.

Mr. Radwanski, you and I have a history together on a number of other issues, and I think we've both agreed to put that behind us.

Mr. George Radwanski: We've known each other a long time, sir, back to my journalism days.

Mr. Joe Clark: We have. That's an appropriate way to put it.

I say that because I want to speak frankly about your relation to Parliament, which I think is a matter of critical importance here.

I couldn't agree with you more that the issues concerning privacy are more important now than they have ever been, and I think the questions you have raised already today and in your reports are of fundamental importance. They are new ground for you, they're new ground for us, and I think there's a general feeling that crosses party lines to try to find some way in which that new ground can be traversed together.

I think there is some concern, if I may say so, that you have not been as willing to work with Parliament's emanations as would be ideal. In a sense, you may be your own worst enemy in that, because, among other things, we are your ally.

I am very concerned about the speed with which some of the legislation relating to terrorist acts was rushed through Parliament, from our point of view, and not simply because we're the tiniest party in the House. We didn't have an opportunity to examine it fully, and I don't know that others did. Time has passed, and I think the justification for some of those measures may well be less compelling now than it was before.

So parliamentarians rely very heavily upon your office to identify potential excesses and solutions.

I want to say something clearly about your relation to Parliament. You are an officer of Parliament, and that term should not be misunderstood. You hold an office conferred by Parliament, reporting to Parliament.

In the circumstances, an officer of Parliament is much more like being an employee than a general; and Parliament, as well as being your employer, is your best ally. If you have concerns about legislation or about actions presumed to be based upon legislation, we're the body with the authority to deal with those issues.

I want to come very specifically for a moment to an issue you've raised with respect to the video surveillance case in Kelowna. Not to go into the merits of the case for a moment, why did you not exercise your authority under the law to issue a special report to this committee on that issue? Why did you, instead of coming to this committee, take it to court?

Mr. George Radwanski: Actually, before I answer that, at the risk of creating any new history between us, I'm not a historian, but I can't allow to pass unchallenged your suggestion that I haven't been cooperating with the emanations of Parliament. I don't know if you're referring to yourself as such an emanation, sir, but I've tried to get together with you on a number of occasions, as a leader of your party, and been declined, but there has not been a parliamentary committee--

Mr. Joe Clark: That's rare, because there are so few people who want to get together, but there we are.

Mr. George Radwanski: And you still couldn't find the time.

Mr. Joe Clark: I tried it with a whole other political party and it didn't work.

Mr. George Radwanski: And you still couldn't find the time for me.

º (1610)

[Translation]

Mr. Joe Clark: As they say in Fredericton, I'm sorry.

Mr. George Radwanski: That's fine.

[English]

But more seriously, there has certainly not been a parliamentary committee that has wanted to hear from me before which I did not appear. More to the point, I've even requested appearance before parliamentary committees. So certainly I would reject, with all respect, any suggestion of not cooperating with Parliament.

As for being my employer--

Mr. Joe Clark: We'll come back to that.

Mr. George Radwanski: I'm sure we will.

As for being my employer, I'm sure you would not want even Parliament--which of course is subject to majority vote by the government of the day, and it's the government of the day over which I must have oversight--to be able, for example, to limit the independence and effectiveness of the Privacy Commissioner. So--

Mr. Joe Clark: That's why we have the act.

Mr. George Radwanski: So the concept of employer is one that has to be interpreted carefully.

As to why I didn't make a special report to Parliament before I went to court, it's because I made an annual report to Parliament in which I pleaded with Parliament for its help in persuading the Commissioner of the RCMP to respect privacy rights in this instance.

You, sir, certainly weren't among those who responded to this plea. In fact, Parliament didn't respond to this plea. It landed with a thud.

Mr. Joe Clark: So you were saying that because Parliament does not act, you are driven to the courts. You are saying this is our fault.

Mr. George Radwanski: I'm not saying it's your fault. You asked me a simple question--

Mr. Joe Clark: I did.

Mr. George Radwanski: --why I didn't report to Parliament first. My answer was, I did. I exhausted that recourse.

Mr. Joe Clark: You exhausted it? Let's go through the process. I don't mean to be difficult about it.

Mr. George Radwanski: Let me ask you a question, sir.

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): On a point of order, Mr. Chair, the witness doesn't ask questions of the member who has the time here.

Mr. George Radwanski: Then I will make a statement instead.

I'm not here to fence with you, sir, pleasurable though it always is. I am concerned about things that are happening in this country right now with regard to privacy rights. I am disappointed that you particularly, as a great civil libertarian, certainly when I knew you in the past, are more preoccupied with, if you will, process or with trying to somehow question the credibility of the Privacy Commissioner than you are about addressing the attacks on the privacy rights of every Canadian, which I'm here to discuss.

Mr. Joe Clark: With respect, I'm not sure this is advancing your cause.

Mr. George Radwanski: I don't know. I'm just being honest. I have no cause to advance, other than hoping this committee will help me with privacy.

Mr. Joe Clark: I did not think my simple humble presence would turn into such a red flag. Let me come back to some of the issues I am trying to pursue here.

You are protected under a law, but your relation to Parliament is nonetheless quite clear. You are the servant of this Parliament, and that should not be misunderstood. I think the last few minutes have indicated that you are prone to misunderstanding. I would urge you, in the interests of the importance of the task with which you are charged, to resist those temptations.

You have statutory obligations, including statutory obligations to file annual reports. You are consistently late in filing annual reports, and yet you find time to put large parts of your budget in communications activities, to go to court, to forgo the possibility of bringing special reports to Parliament on the argument, which may turn out on examination to be a valid argument, that you had made the case adequately in your annual report.

I think privacy is too important for a conflict over personalities, whether that is between you and me, or you and Mr. Alcock, or you and Ms. Bennett, or you and a host of others. I say as gently as I can in a public place that I think your responsibilities as an officer of Parliament have to take account of that.

On the video surveillance, take me through the presentation to the committee. Take me through what you said, what you asked, what was adequate, what was inadequate on the part of the committee's response, and why you felt compelled to go to court on the matter.

Mr. George Radwanski: There was a bit of a shotgunning of issues there. Let me just briefly clarify the record with regard to being late with my annual reports.

In each instance, it was with the permission of the Speaker, and the reason was--particularly the most recent one--that with regard to the issues that I am raising here, I was working very hard toward resolution behind the scenes as an ombudsman, and I wanted to give that process every opportunity. I kept being told that things were being worked on, and I wanted to give the process every opportunity before shooting my bolt, as it were.

So that was the reason. It was certainly no lack of respect for anyone; it was my sense of how best, as an ombudsman, to advance those issues.

Coming to the--

Mr. Joe Clark: I would reconsider that sense of things. I believe the obligation to honour the timetable set out with regard to reporting to Parliament supercedes your responsibilities as an ombudsman or conversations or pursuits you might have with ministers of any Crown.

º (1615)

Mr. George Radwanski: It's certainly my intention, as I said in the report, to be back on schedule this spring in any event, sir. But we've been living in unusual times since September 11, I'm sure you'll agree, and I apologize for any inconvenience the lateness may have caused you.

With regard to the RCMP video surveillance, in my annual report and my appearance—it was before the justice committee at that time—I explained in detail my concerns. I explained that the Commissioner of the RCMP and the RCMP had in fact chosen to use a loophole to observe the letter but not the spirit of the Privacy Act in this regard. The issue was that the Privacy Act, unlike the PIPED Act, refers to information about an identifiable person that is recorded in any form. So what they did, as I was investigating a complaint on this—and they understood that they couldn't possibly get away with continuous recording, which they were doing—was simply say, we'll continue this video surveillance and expand in due course the number of cameras, and we'll observe continuously but only record when we think there's something of law-enforcement interest. That put them within the letter of the law, but it did not put them, in my view, within the spirit of the law, because the real issue is the sense on the part of law-abiding citizens of being under systematic police observation.

So I raised that with the justice committee. I took them through and detailed my analysis. What I basically asked the committee to do was urge Parliament to persuade the Commissioner of the RCMP and the Solicitor General to amend this practice and cease continuous video surveillance of public streets, and to heed the strongest possible recommendation.

If you ask what was the shortfall, what happened, the simple answer is that absolutely nothing happened—zero.

Mr. Joe Clark: Did you come back to the committee?

Mr. George Radwanski: I wasn't invited back. I asked to come back, but I didn't have another opportunity.

Mr. Joe Clark: You wrote the chair asking to come back on this matter?

Mr. George Radwanski: No, we called.

Mr. Joe Clark: You called the chair asking to come back on this matter?

Mr. George Radwanski: Yes.

Mr. Joe Clark: And the chair declined?

Mr. George Radwanski: It just didn't happen.

The Vice-Chair (Mr. Paul Forseth): Thank you, on that note. You have had 12 minutes on the first round.

Ms. Bennett, please, for 10 minutes.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you, Mr. Chair.

I, who am usually hugely interested in privacy as the essential freedom, am also hugely interested in planning and mapping our health care system. I guess I think we're not going to be able to plan unless we have information that's turned into knowledge around patterns and outcomes or results. I guess I want to know whether, as commissioner, you have an approach to the technology that can actually take the identifiers off, so that we can plan the system with them off, such that you wouldn't actually have to have a consent unless it was to put the identifier back on.

The second part of my question is around being able to share information across ministries and across departments. Obviously, when you are tracking a criminal you can ask for a search warrant. Do you feel there should be a way you could go to court to ask to share information across departments in order to be able to track someone where there is a real suspicion? I think we all have the fear of the big database in the sky—Big Brother. I think the technology offers us a way of separating all that data; then it would have to be an active decision to bring that data together.

Those would be my two questions.

Mr. George Radwanski: They are both excellent questions--quite complex ones, of course.

On the first point, with regard certainly to health research, in my previous annual report I addressed this at some length because there was a concern, a very legitimate concern, in the health community and the research community that the consent provisions of the PIPED Act could potentially stifle or at least inhibit research.

The position I took was that this could be solved by a liberal interpretation of the exemption for scholarly or statistical research. The position I've taken is that provided the health research is being undertaken by a duly accredited, bona fide health research body, with appropriate safeguards and so forth, and provided the personal information will in no way be used in a way that could harm the patient, will remain within the confines of the research project, and can't find its way back in any possible way to employers, insurance companies, friends, relatives, law enforcement, or other emanations of government and so forth, for that narrow purpose, consent would not be required for health researchers to collect information from physicians or what have you.

I did make clear, though, that any breach of those conditions I just mentioned would be from the outset an extremely serious violation of the act, and I've certainly--

º (1620)

Ms. Carolyn Bennett: I think in a learning culture--in terms of what does and doesn't work--and in terms of timely access to our health care system and a number of other things, that research is really what any public administration of a program as important as health care would be. So knowing who's waiting for what, knowing the outcomes of certain surgeries, knowing those kinds of things, is actually health system research that should be done by the system itself.

So as we move to the health council and we're going to be using CIHI data and those sorts of things, I worry that if it's constrained, and if we don't acknowledge you can take the person's name off with the present technology....

Mr. George Radwanski: If it's effectively depersonalized, then there is no problem. The law refers to information about an identifiable individual.

So if it is genuinely depersonalized, that's not a problem. What we have to be careful of is that sometimes simply removing a name may not be sufficient to meaningfully depersonalize it. If you're dealing with a small community, for example, or a particular set of circumstances, it could be used to identify the individual.

There was a very famous example where a researcher for a privacy advocate in the States--you may be familiar with this--used supposedly depersonalized personal information to identify the health information of a governor of a state, just to make a point. So simply taking off the name is not always sufficient.

But subject to that caveat, if it is genuinely and effectively depersonalized, there is no problem. So I think you and I are very much in the same place on this.

On your second question about tracking information across bases, the simple fact is that under the law one can always get a warrant and a court order to obtain any given information.

I'd be nervous if there were some process by some kind of fiat or on a large-scale basis that started tracking people across things, whether across government or across the private sector, because electronic or virtual dossiers on individuals are no less intrusive than actual condensed dossiers.

So, again, these are things that one has to look at on a case-by-case basis, as to what the object is, what one is trying to achieve, how it can be done in ways that minimize intrusion on privacy, and whether it meets the four-part test to which I have alluded.

It's hard to go beyond that without having a concrete issue that we're confronting. It's certainly a fair question.

As I say again, I don't interpret the role of the Privacy Commissioner to be one of inhibiting the good or necessary things in our society. Very frankly, apart from the fact that as a citizen one would have no wish to do that, that would be the surest possible way to give privacy a bad name.

So it really is a matter of trying to find solutions that recognize genuine needs really exist and finding ways to achieve them that are as respectful of privacy as possible.

º (1625)

Ms. Carolyn Bennett: On the privacy card, or national identity card piece, right after September 11 I had a town hall meeting where two-thirds of the room thought it would be a good idea. It was interesting that the people who spoke against them were people who'd lived in a country that had them and knew what it was like to have it demanded by security guards or anybody else.

I have a concern about it. When you say in your report that simply because the Americans are going to demand it, that's not a good enough excuse, do you have concerns that they simply want access to all of our data? Is that where we're going with this?

I guess my other question is, if somebody had a national identity card but still had been born in Iraq, I don't think it's going to help that Canadian citizen anywhere anyway. So can you help us with this?

Mr. George Radwanski: I actually appeared this morning before the citizenship and immigration committee on this very issue of an identity card, and my basic point was that it will serve no discernible purpose that I have been able to identify.

One of the interesting things is they've had 61 people appear before them who spoke on the subject and only five of them actually supported a card or said yes rather than being negative about it. And of those five, three were private citizens, one was a consultant on immigration, and one was a group that represents refugee women. And even of those, not one had actually asked to appear to support the card. They had been asked about it while testifying about other things. They'd said yes, I guess, sure. So the support wasn't great, to put it mildly.

With regard to the United States, the United States is a sovereign country and they can't be prevented from demanding just about anything as a condition of entry. Whether Canadians or people from elsewhere wish to submit to being retina-scanned or fingerprinted or profiled or otherwise treated as a condition of entry, it's up to every individual. That should not lead us to a nation-wide identity card for everybody whether we want it or not, whether we want to go to the United States or not.

It wouldn't help against terrorists in any way that I can see. September 11 demonstrated that many, if not most, of those perpetrators were well established in their communities. They were sleepers, if you will. They used their own identities. They would have qualified for an identity card if they'd applied for it. The only trouble is they wouldn't list their occupation as terrorist, so it wouldn't be very helpful.

With regard to pressures from many countries, perhaps, to avoid fraudulent identity for entering other countries, certainly we have a document for entering the United States or any other country. It's a passport.

I wouldn't have a big problem with biometrics on the passport, provided it wasn't a biometric process where the biometric data would be stored in a central repository. Biometrics, for instance, involves simply having the biometric information in a chip right on the card itself, nowhere else, so basically the card is swiped at the same time, for instance, as you hold your hand to something and it compares whether the person on the card is the person presenting it.

Ms. Carolyn Bennett: Or on the passport?

Mr. George Radwanski: On the passport, in this case, yes. But that's all. Then again, every citizen can want a passport or not want a passport. And as long as there's no database, it's not a problem.

A national identity card opens up a whole set of other problems. It risks becoming a method for tracking all our movements. It risks being demanded by the private sector as well, if it's thought to be a really good form of identity. There's a risk that every time the card is swiped, a record would be created that would track our whereabouts and our transactions.

There's also a very big risk, by the way, of even worse identity fraud, because there's no technology that cannot be subverted one way or another. Not by petty criminals, certainly, but by organized crime or by highly organized, well-funded terrorist organizations. And if we ended up with a single piece of identification that was believed to be infallible, and one way or another it wasn't, we'd have far worse problems than we do now, to say nothing of the fact that identity theft is still possible. We're already seeing some experiments on this kind of thing.

For example, you can reproduce a fingerprint on a latex thing that could be put over a finger and fool some scanners. Of course, as this goes forward, there may be other ways of doing it. Right now, if someone steals your social insurance number, for example, it's easy enough to get another number. But if someone were to actually misappropriate your biometrics in any of a number of ways, or by bribing someone in the process to assign them to the wrong person and so on, you can't readily be assigned a new thumb or a new eyeball, so you've got a real problem.

All these things worry me, and the need simply hasn't been demonstrated.

º (1630)

The Vice-Chair (Mr. Paul Forseth): Thank you. We'll leave that as the first round for the parties. We'll enter a rapid-fire round of perhaps three minutes, with small questions and perhaps a supplemental, and we'll alternate between the opposition and the government side.

You're first, Mr. Epp.

Mr. Ken Epp: I hope you're being fair here. I feel sorry for John and Judy over there.

Mr. John Bryden: Yes, I have a lot of questions.

Mr. Ken Epp: Yes.

Do you want to let them go first, before I go second?

The Vice-Chair (Mr. Paul Forseth): Sure.

Mr. John Bryden: Thank you, Mr. Epp, that's very kind of you.

The access to information commissioner and his predecessors have repeatedly recommended that officers of Parliament come under the Access to Information Act. As an officer of Parliament, would you be agreeable that the Privacy Commissioner come under the Access to Information Act?

Mr. George Radwanski: No, I would not.

Mr. John Bryden: Could I ask you why? The Access to Information Act, as you know, deals only with administrative detail, and the Access to Information Act defers to the Privacy Act for the protection of any personal information. So why would you not want to be a part of the Access to Information Act?

Mr. George Radwanski: There are several reasons. I'll start with one very important practical one.

Unlike other officers of Parliament, I have responsibilities now under the PIPED Act that span both the public sector and the private sector. When investigators from my office are investigating a complaint against a private sector company, they have to have access to whatever information is pertinent to the complaint, which may involve, in some instances, quite sensitive competitive or commercial information.

Mr. John Bryden: If I may interject, Mr. Radwanski, that is already protected under the Access to Information Act—

Mr. George Radwanski: If you'll allow me to finish, the fact is that the first thing we are asked is: what if you get an access to information request for this stuff? The fact that we're able to say, “It can't happen, because we're not subject to the Access to Information Act”, prevents a great many of these things from becoming bogged down in litigation. I think that's very important.

A second thing that's very important is that, as an ombudsman and in the role I'm in, I'm often in a situation where, by its nature, I have to be critical of government initiatives and government activities.

Under the Access to Information Act, research work, for example, can be accessible—research work, analysis, etc. The very fact of being able to access that could give the government an advantage if they're able to know what we were looking at, what research we were doing, in preparation for being critical of a given policy. This would adversely affect the independence of my office.

I could give you more reasons, but I'll stop at that for the moment.

Mr. John Bryden: Actually, I would like those reasons. Perhaps you could give a written explanation to this committee as to why your office should not be under the Access to Information Act, so that we can examine it and consider those explanations. And please go into as full detail as you can, Mr. Radwanski.

Let me ask another question, if I may. The Treasury Board has guidelines for expenses. What do you feel about those guidelines? Do the Treasury Board guidelines for expenses and the disclosure of those expenses apply to you? And if they apply to you, do you have any comment on their adequacy?

º (1635)

Mr. George Radwanski: I am subject to the Auditor General, the same as anybody else. We live within the rules that apply to all parts of government. We are, as always, in full respect of all the rules that apply to my office. I don't know what more I can tell you.

Mr. John Bryden: I have another question, if I may, Mr. Forseth.

You are very clearly an advocate of getting the message out. We certainly see that you don't hesitate to speak to the media, even before you release the report to Parliament. I think that's fully evident. But a constituent of mine received a letter from you warning him of the dangers of the government's bills that are affecting privacy.

Is this contact from your office with individual Canadians a program you can give us more information on? It was an e-mail message.

Mr. George Radwanski: There's no program. The only instance in which any citizen would have received an e-mail would have been in reply to an e-mail they sent to me. It would have been in reply to a question they put to our office—or a letter—either of support or disagreement, and as matter of courtesy we respond to all communications we receive. I do not initiate communication with individual citizens.

Mr. John Bryden: Thank you, Mr. Chairman.

The Vice-Chair (Mr. Paul Forseth): Just before I go to Mr. Epp, perhaps you could have a discussion after with Mr. Bryden about the request he made for further information. The response could be relayed to the clerk for distribution to the committee.

Mr. Epp, we'll have a brief round.

Mr. Ken Epp: Thank you.

In reading your report, I was interested in the type of thing your office is involved with. You do a number of investigations and so on, and I have a few questions in that regard.

I'll ask this as a general question. If an organization knows that an individual has access to their personal information by law and if that individual requests it, why would that organization then refuse to give it? What are typical reasons for saying, hey, you can't know about yourself or the information we have on you?

Mr. George Radwanski: Are you talking about private sector organizations or government organizations?

Mr. Ken Epp: I'm talking specifically about some of the examples you gave here in your report.

Mr. George Radwanski: It varies. Sometimes there are exemptions for the provision of information, whether it be because it relates to third parties and not the individual, because it is part of an ongoing investigation and would prejudice an investigative process, because it falls under the national security exemption, and so forth.

What sometimes happens--this is one category of things--is that an organization may apply the exemption too broadly. We of course have the opportunity to examine the information in question, and often we're able to persuade the organization that it applied the exemption either too broadly or altogether inappropriately. Then the organization may, for instance, produce additional pages of information they had originally withheld. In that case the complaint is well founded but is resolved because the individual eventually got all the information to which he or she was entitled.

Another category of situation is where an organization doesn't say no, but it just doesn't do it, whether because of the volume of demands, because of bureaucratic inertia, or because for one reason or another it would prefer not to make that information available. It happens in individual complaints to us and we step in and say, wait a minute, the individual has a right to this information and you have to produce it.

Some of the other complaints are simply time delay complaints. It just takes too long. Individuals are entitled to get their personal information on request within 30 days, with a possibility for another 30-day extension if it would be physically difficult to find or produce that amount of information or whatever in a short time. We have instances where it's been 100 days or 120 days and the individual complains to us. Then it's speeded up, but of course the complaint is well founded as a time limit violation.

º (1640)

Mr. Ken Epp: Now, what is the relative frequency of complaints from people whose information was to have been kept private but was let out? Do you get any number of complaints in that area?

Mr. George Radwanski: It arises, and that of course--

Mr. Ken Epp: Not as frequently, though.

Mr. George Radwanski: Not as frequently. By volume, the main problem is administrative, the difficulty of getting information. By and large--with exceptions, and they are serious of course when they occur--the government is cognizant of the importance of not improperly releasing personal information. It happens, and when it happens, of course, it's a serious matter and it's dealt with. But by volume, accessing is a greater issue.

By way of importance and gravity, disclosure is of course worse, because if the government is slow to give you your information or initially refuses, it can still give it to you eventually. The delay may be inconvenient or troubling, but the lack of disclosure can be remedied. The thing about privacy is that once your privacy is violated, it can never be repaired.

Mr. Ken Epp: It's not retrievable.

Mr. George Radwanski: Once the information about you is out there somewhere, other than apologizing, maybe learning a lesson from it, and maybe making compensation if appropriate, the offending body can do nothing to fix it. So obviously, violations of privacy are the graver of the two.

The Vice-Chair (Mr. Paul Forseth): We're going to go now to Mr. Tirabassi.

Mr. Tony Tirabassi (Niagara Centre, Lib.): Thank you, Mr. Chair, and I'd like to thank our witness for appearing.

I can appreciate your concerns as gatekeeper safeguarding the privacy of Canadians. Much of what you referred to in your report--I haven't read the whole document but have quickly scanned it--refers to what citizens have involuntarily surrendered to officials or the government in various forms, how their activities track; you mentioned the CCRA and things of that nature.

Have you done a comparison of how people voluntarily offer up their information, i.e., walking up to an ATM machine or calling a 1-800 number off the television and giving their credit card to order whatever it is being advertised? I can see that they keep track of how much product they've sold down at the bottom of the television screen, maybe 400 or 500. Have you done a comparison?

Mr. George Radwanski: I haven't done a comparison. What I have done is--and that's where part of our communication activities comes in. I have a mandate under the PIPED Act for public education, for increasing public awareness, and one of the things we do try to do is increase public understanding--and sometimes governmental understanding too--of the sensitivity of personal information. We try to encourage people to think very hard about under what circumstances and to whom they do disclose information about themselves.

Because you're right, it's a huge problem, particularly in the area of identity theft, various frauds, and so forth. It's a huge problem that people carelessly put their personal information out into the void, so yes, that's a very important issue.

I don't know how one would statistically track careless versus careful disclosures and so on. We certainly don't have the resources for it, but what we do try to do is tell people that as much as privacy law can protect them and my office and provincial offices can try to help them, we all do have to also take some responsibility and be very careful with our personal information. We have to treat it as precious, particularly the sensitive information, and not be careless with how we disclose it.

I don't know if that fully answers your question or not.

Mr. Tony Tirabassi: I notice you make several observations and conclusions, and I'm just willing to bet that with the number of people who are walking up to these ATM machines every day or ordering off the television screen or the Internet.... If they're doing that voluntarily while being cautioned against it--it's a whole industry that's taken off--do you not think that people would accept the government, in its ongoing activities to try to enhance security, having a need to know certain information about Canadians as well?

Now, don't get me wrong. I'm not saying they shouldn't be concerned, because they should. With a corporation the size of the federal government, mistakes do happen, and what starts out as being a sincere exercise in collecting information about security can become something else.

Don't you think that overall there's an acceptance of people, especially after September 11, that the government does need to know certain information to be able to offer enhanced security?

º (1645)

Mr. George Radwanski: Yes, but let me come back for a moment...and I'm not sure it's central to this question. I'm not sure I understand what point you're making about ATMs and why you regard them as an invasion of privacy. I don't know if that's necessary to the question you're asking or not, and I'm not sure I'm catching your drift there.

Mr. Tony Tirabassi: When you put that card into an ATM machine, it has a magnetic stripe that has certain information about you, and you're really turning that information over to the banks.

Mr. George Radwanski: Right, and in the same way, you used to go to a bank to make a withdrawal and filled in a card to make the withdrawal. I have not been struck by that itself being a particular surrender of privacy any more than any other transaction, although it is true that there is a bank record of every transaction. Then it becomes important who could have access to that record, and I agree with you there.

Coming back to the broader question, I think it is true, of course; we all want to be safe. But I think it is also important to keep a clear focus on what it is we want to be safe from. Being blown up by terrorists is not the only threat we face to our quality of life. A bigger threat in terms of what is likely to happen to the average individual is losing elements of the freedom we expect, take for granted, and find necessary in our society. One has to draw that balance very carefully.

Yes, people want to be safe, and yes, many people say that if they have nothing to hide, they have nothing to fear. That's a relatively dangerous way of looking at it, because by that reasoning we shouldn't mind if the police were free to come into our homes at any time without a warrant, without anything, just at their whim, to look around just to make sure we're not committing a crime. Why not? You have nothing to hide, so you have nothing to fear. We shouldn't mind if the police were free to listen to all our telephone conversations or read all our mail just to make sure we're being law-abiding. Why not?

The fact is that we all have things to hide, not because they're illegal, shameful, or wrong, but simply because they are private. The more we feel our privacy violated, the less free we feel in a lot of ways, and when it's the state, it's even more oppressive.

I know, for example, coming back to video surveillance cameras--

The Vice-Chair (Mr. Paul Forseth): I think you've answered the question.

I'm going to Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: From looking at the tables in your report, I note that the breach-of-privacy complaints involving departments, of which there is a huge number, largely concern the Customs and Revenue Agency and the Correctional Service of Canada. You have investigated these complaints. Why are these two agencies the subject of a larger number of complaints?

Mr. George Radwanski: It's not very surprising, because these two agencies use a lot of personal information. They also deal with people who aren't always very happy. These are "aggressive" departments because of what they do. So it's not so surprising that people might be unhappy. Then there are a lot of opportunities to infringe on privacy.

Mr. Robert Lanctôt: At the Correctional Service? Give me some examples. Why do you say that these are places where that could be used more? Why are there more complaints about the Correctional Service than elsewhere? I can understand that this may be so for the Customs and Revenue Agency, but how come there are so many complaints about the Correctional Service?

º (1650)

Mr. George Radwanski: Because a prison is not a very private place. For instance, if the prison authorities reveal, somehow or another, the fact that a prisoner has a health problem or that he is being punished for something specific, for instance, that can be pretty serious.

Mr. Robert Lanctôt: Considering the number of complaints, can it be concluded that there has really been a breach of privacy?

Mr. George Radwanski: Sometimes yes and sometimes no. It's true that in the prisons, there are people who don't have much else to do. That affects the figures a little.

Mr. Robert Lanctôt: That's right. How could there be fewer intrusions? Is society prepared to accept these intrusions? Also, are people in a free society like ours prepared to accept the intrusions allowed under the new antiterrorism legislation or under C-17? You say that it's more or less to be expected that there should be intrusions in these two services, that it's banal. In view of the new legislation we're adopting, is society prepared to accept that this should become banal?

[English]

Mr. George Radwanski: No, I wouldn't want to give that impression. I think the point is there are some departments that by their nature are going to annoy more people and upset more people, first of all, so they'll generate more complaints, and those two you mentioned are in that category.

There are also circumstances where, by their nature, there is more likelihood of people feeling their privacy has been violated and sometimes of it being violated. I wouldn't call it banal at all, quite frankly. When there is a violation, it is just as grave a matter as if it were anywhere else--any other department--and we take them very seriously.

As for society in general, I think right after September 11 there was a feeling of do whatever it takes, just make us safe. Not surprisingly. That was a huge trauma and people would have been willing to sacrifice just about any right. You could see that in the polls and so on. I think we're returning to closer equilibrium, where people want to be certainly safer--there's no such thing as being perfectly safe--but I think there's a growing awareness that you can't pursue security blindly at the expense of privacy rights. But again, the real problem--the real challenge--is explaining to people that the issue is not, at least as I've been approaching it, either security or privacy, because I'm among those who accept that if there have to be restrictions on privacy to some extent in the name of security, so be it--if they meet the test, if they're really necessary. But what we must avoid is going beyond what is necessary and effective--doing things, for instance, just because they'll make us feel safer rather than be safer, doing things simply because some other country would like us to do it even if it's not demonstrable that it's necessary or that it will meet those tests, or going beyond security.

The biggest problem, as I illustrated in that customs traveller database, isn't what's done for security; it's what goes beyond security. That's an educational challenge, and that's why I appeal to Parliament through this committee for help with these matters. I appeal to Parliament to basically parse out, divide out, what is real security and what is intrusion on privacy that is not really justified by the new security imperatives we face. That's what I'm asking for your help on.

The Vice-Chair (Mr. Paul Forseth): Thank you for that. We'll go on now to Mr. Bryden.

Mr. John Bryden: One of the difficulties of a department not coming under the Access to Information Act is that a committee such as this, charged with the oversight of that department, has difficulty getting direct information.

Within that context, do you have any problem with supplying this committee with a descriptive breakdown of your office and job descriptions of each person? Could you provide this committee with that?

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Mr. George Radwanski: I'd have to reflect on that. I would not want to make myself subject to the Access to Information Act by a process different than access to information--

Mr. John Bryden: Well, Mr. Chairman, I would submit to you that it is proper of this committee and proper of a member of this committee, which I am at this time, to request that information. I formally request that information, because it is only reasonable for this committee to know how the office of the Privacy Commissioner is structured and receive job descriptions of each person. I point out to you there is no privacy consideration in this information because I'm not even asking for salaries, so I would ask that of you, Mr. Chairman, to rule on that at your leisure, but I do not--

Mr. George Radwanski: Mr. Bryden, you've asked me if I would be prepared and I have answered that I would reflect on it. I did not decline. I did not agree. And I would ask for your indulgence to allow me to reflect on the appropriateness of what you've asked.

I came here to discuss my annual report, and I'm happy to reflect on the question you put to me.

Mr. John Bryden: With respect, Mr. Privacy Commissioner, I require the information regardless of the outcome of your reflection, and I would ask this committee to support me in that request.

Now, on another topic, similarly, Mr. Chairman, again under access to information--or not under access to information perhaps depending on the department--normally one has access to the expense accounts of officials. Again, lacking the utility of the Access to Information Act, we cannot see the expenses of Mr. Radwanski. Of course, this is not to say that there would be anything wrong in the way Mr. Radwanski would spend money, but an expense account gives you an idea of how the department operates.

Again, I would certainly ask Mr. Radwanski whether he has any objection. Do you have any objections to providing the committee with the last two years of your expenses--your department and you personally?

Mr. George Radwanski: Mr. Bryden, I will not put my office under a form of access to information that it is not subject to via the back door--

Mr. John Bryden: Mr. Radwanski.

Mr. George Radwanski: --for the simple reason that there are valid policy reasons why Parliament chose not to make my office subject to access to information. I will not. It would be irresponsible of me to go against that because there are policy reasons for not being subject to it.

As much as I admire your ingenuity in trying to find a way around who is or is not scheduled under the Access to Information Act, I would not consider it appropriate for this committee or any other to try to violate what Parliament has disposed.

Mr. John Bryden: I point out, Mr. Chairman, that this committee has the absolute authority and absolute power of Parliament to request the information. I reiterate that I would ask this information of the witness whether he is willing to disclose it or not.

I point out that this is information that is routinely available from all civil servants, perhaps not from ministers, but certainly from all civil servants. I would request that at least the information is released under the terms of the Treasury Board guidelines for expenses.

May I move on to something else, Mr. Chairman?

The Vice-Chair (Mr. Paul Forseth): I think so. I think you've posed the question. The witness has given an indication of an answer.

Mr. John Bryden: I have other questions.

The Vice-Chair (Mr. Paul Forseth): The committee can keep its own counsel of what we would do in view of the evidence we've heard. We're quickly running down to vote, so if you just want to have one, quick supplementary, then we'll move on.

Mr. John Bryden: Yes, if I may, on the question of the communication received by my constituent. Can I also have a list?

Through you, Mr. Chairman, if there's no objection from the witness--and there may be, he can say so--I'd like a list of the recipients of his press releases, because perhaps that would help me understand how this person received a communication from his department, and why or whether MPs are part of his press release distribution procedure. If we could have that, Mr. Chairman, I would appreciate it very much.

Mr. George Radwanski: There's no secret about whom we send press releases to. We send press releases to certainly all major news media outlets. There have been a few instances where, in keeping with the kinds of concerns that Mr. Clark was raising about keeping members of Parliament fully informed of what is going on, for purely informational purposes I've also provided them to members of Parliament. When I've done that, I've provided them to all members of Parliament.

The answer to that is very simple. It's to accredited news media, the press gallery, in some instances, members of Parliament, certainly not private citizens or constituents. We have no mechanism for sending press releases to the general public.

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Mr. John Bryden: Thank you, Mr. Chairman.

The Vice-Chair (Mr. Paul Forseth): Mr. Clark.

Mr. Joe Clark: Thank you very much.

I just want to say, on Mr. Bryden's point, that I think it is an unfortunate situation if we are allowing the existence of the Access to Information Act to prevent parliamentary committees from receiving information that is reasonably requested.

If the committee puts Mr. Bryden's request to a vote, I will certainly support that. I would hope that you would voluntarily agree and not be forced to make the maximum amount of information available to the committee to whom you report. To do anything else, it seems to me, is to carry privacy to an extraordinary extreme.

I'm very interested in the so-called arm's-length foundations that were set up, such as the Foundation for Climate and Atmospheric Sciences, Genome Canada, the Millennium Scholarship Fund, the Canadian Institute for Health Information, etc. They're beyond the reach of the Auditor General. She cannot audit them. What's your relation with them? Have you access to those organizations?

Mr. George Radwanski: No, the situation is the same. They fall into a kind of a no man's land. I have expressed concern. I've had conversations with some of these organizations. Some of them are themselves aware of the problem. Some of them wish they could find a way to put themselves voluntarily even under certainly the oversight of my office to reassure those who might worry about how they handle information. At the moment it's kind of a hybrid situation. I share the Auditor General's concerns in that regard.

Mr. Joe Clark: Is a voluntary arrangement a possibility? Is it allowed under practice and legislation?

Mr. George Radwanski: Well, there would be, obviously, no enforceability. I've had discussions with at least one organization--I won't say which one--about such a possibility. They were going to explore it and raise it with their board and I never heard further.

I don't think there's anything that would stop an organization from saying we're happy to have the Privacy Commissioner look at what we do, be free to audit, and if somebody complains, he's free to investigate and deal with it. It would be an extra legal arrangement, but I don't see, off the top of my head, why it would be in any way an illegal arrangement.

Mr. Joe Clark: If you have any considered recommendations to make to the committee as to how that might be done, I think it would be worth looking at. I understand fully why the foundations were established, and they were established quite directly to be at some distance from us. There's some reason for that. But too much distance is dangerous. and to not be subject to the scrutiny or access of officers of Parliament is dangerous, particularly since some of them--those in the health field particularly--deal with areas where there are increasing possibilities of intrusion on privacy.

Mr. George Radwanski: I share your concern. They also fall outside the jurisdiction of provincial privacy commissioners for the same reason, so they really are in a no man's land.

Mr. Joe Clark: And they have a multi-billion dollar budget and growing, so it's a significant factor.

In a similar vein, what is your relationship to intelligence operations, to CSIS, SIRC, and so on? Have you any--

Mr. George Radwanski: They are fully under the act; they are fully under our oversight.

Mr. Joe Clark: Let me ask an opinion, if I might. One of the other concerns that has grown with the response to terror has been the growth in intelligence activities and the question of how these things are held accountable. To come back to the question of the centrality of Parliament, whether or not we do our job adequately, other jurisdictions have parliamentary oversight arrangements. We have opted in this country for the Security and Intelligence Review Committee, which, to any of us who have tried to penetrate it, is virtually impenetrable, and as the range of intelligence-related activities increases, questions that may be of public interest increase.

Have you any view as to whether or not it would be useful for us to look at some species of oversight committee that would have members of Parliament sworn to hold secret information that might be available to them?

» (1705)

Mr. George Radwanski: I can really only speak to oversight with regard to privacy, not other matters. As I said, I and my office do have oversight over the extent to which these organizations respect privacy laws and whether they are doing anything unduly intrusive. In fact, we are in the course of conducting an audit of those organizations from a privacy perspective, a privacy audit, examining what has changed in their activities since September 11 and whether there is anything there that would raise cause for concern.

Mr. Joe Clark: Are there any limitations upon what you can report of that finding?

Mr. George Radwanski: Oh, yes, there would be the usual security limitations; I can't disclose security sensitive matters.

Mr. Joe Clark: Details. But if there were trends that were of concern to you--

Mr. George Radwanski: If I were concerned, I would certainly make it known that there were reasons for concern. But I would have to be extraordinarily careful, obviously, as to what was made public, so as not to violate security confidences in any way.

The Vice-Chair (Mr. Paul Forseth): We'll have to leave it there.

Do you have a question, Mr. Tirabassi?

Mr. Tony Tirabassi: No.

Mr. John Bryden: On a very different point, you mentioned in earlier testimony the anti-terrorism bill and the disclosure of passenger information on aircraft. You testified thus at other committees that you thought such information should only be used for anti-terrorism purposes. I'm not for fishing expeditions, for other reasons, but you actually mentioned just now, for plague, for instance.

How do you feel in the context of the event that's occurring now, where we have this atypical pneumonia rapidly spreading around the world that is causing problems with the health authorities because they can't access the identities of the passengers on these aircraft to trace them back to the countries of origin, or to trace them to where they are going now and who they might be infecting because of the encoded passenger identity information? Does your view about the anti-terrorism bill and its reach extend to public health crises, which is in the anti-terrorism bill and which you've criticized? Are you changing your view as a result of this very deadly peril that is now spreading around the world?

Mr. George Radwanski: No. First of all, I don't think the situation is exactly as you have described it. My understanding is that there are well-established protocols within Health Canada—in fact, we looked into this when the minister first raised this matter—for dealing with instances of someone entering the country with a contagious disease. The airlines, by international agreement—IATA, and so on—keep their passenger manifests for a certain period of time, and this information is made available to health authorities to look for people who need to be notified of a possible health contagion.

That process exists and has existed for a long time. It's been dealt with in cases of suspected Ebola and so forth. It has nothing to do with keeping information in a six-year database, because there are not a great many diseases that become contagious after six years, so we're dealing with two completely different things, I believe.

Mr. John Bryden: If I understand what I'm reading in the newspapers correctly, the problem is that passengers—

Mr. George Radwanski: As a former journalist, sir, I must tell you, don't believe everything you read in the newspapers.

Mr. John Bryden: Yes, but nevertheless, we have to rely on sources of information. Even witnesses before this committee can always be relied upon to give us the information we need; we certainly are aware of that as well.

Just to finish the point, however, it seems to me your testimony specifically said we shouldn't be gathering this information and holding it and then disseminating it to other authorities for other reasons. And you cited here in testimony, “plague”; that was the very word you used. Now, surely.... And we have this situation where information is encoded and inaccessible—well, not readily accessible.

Mr. George Radwanski: Why do you say that? Why do you say it is encoded and not readily accessible?

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Mr. John Bryden: That's what the newspapers are saying, that they're having difficulty getting the passenger identity information and tracking down the individual.

Mr. George Radwanski: I'll be happy to look into that, but I don't believe an airline would be unable or unwilling to provide that information to health authorities. I'm happy to have my office look into it, but I don't believe that is the case, whatever a newspaper might say. I'm not familiar with the particular article that said that.

I, on the other hand, have read articles that talked about Health Canada dealing with the airlines and obtaining the information to track people and contact them and warn them of possible contagion. So I'm not in a position to agree with you that a problem exists, because my understanding is that it does not. I'm happy to look into it.

Mr. John Bryden: That's fairly said, and I'll take you up on it. I would like to see an assessment of whether privacy considerations as they exist now have interfered with the ability of the authorities to get the necessary information on passenger identities.

Thank you, Mr. Chair.

Mr. George Radwanski: I'll be happy to look into it.

The Vice-Chair (Mr. Paul Forseth): Okay. We'll go briefly to Mr. Epp.

Mr. Ken Epp: Mr. Chair, thank you. I have a question that is an outcome of what's in your report with respect to the management of your office.

You indicate your total cost, your budget, has gone up quite a bit--at least in the year of this report it went up from the year before. I haven't taken the time to look to see what your budgetary demands are in the intervening year since 2001-2002, which this report covers.

But we did find out from the information commissioner that whereas you used to share administrative services, you now no longer do. And I would like you to share with this committee your perspective on why that came about.

Mr. George Radwanski: It came about, of course, with the agreement of Treasury Board and the Privy Council Office. It came about for several reasons. The first is, as a result of the new responsibilities of my office under the PIPED Act, the new private sector law that I made you aware of earlier today, our volume of work, our size, our responsibilities have grown dramatically. Now we're overseeing a whole second law, and it will grow further when it applies to much of the private sector across Canada this coming year. We're now more than twice the size of the information commissioner's office for that reason.

We have obviously correspondingly great demands for corporate services. The people in that corporate services shop were, first of all, being put in a very difficult situation, because while we obviously needed services as and when we needed them and urgently, the information commissioner and his people took the view that they need what they need when they need it too, and they don't care what those other guys say they need; you serve us right now, and vice versa. So people were being put, first of all, in an impossible situation. That's one issue.

A second issue is that by the nature of the work we do, we are certainly, on occasion, but on a significant number of occasions, on opposite sides from the information commissioner, even to the point where we end up on opposite sides in court. It's not a normal or healthy situation in that scenario for the same shop to be processing everything, including lawyers' bills, personnel matters, being privy to information that does not remain discrete.

Finally, it pertains to another answer that I gave earlier to Mr. Bryden, in dealing with the private sector and assuring companies that their information couldn't come to light under the Access to Information Act. Even saying, well, we're not subject to access to information is mighty confusing for them, or would be mighty confusing, if they then say, but what do you mean it's not subject? You're the same office; you're connected.

So that combination of factors persuaded us, and certainly persuaded both Treasury Board and Privy Council Office, that continuing to share corporate services was an arrangement that, under the current circumstances, no longer made any sense, and also that there weren't any great cost efficiencies in so doing.

Mr. Ken Epp: Well, that's of course where I'm coming from, because as an ever-vigilant defender of the taxpayers' dollars here, it seems to me there is some economy of scale when you have this. So I guess what you're telling us right now is that the extra amount of money that is being spent on the separation of these services is, one, relatively small, and two, well worth what it is costing. That would be your message to us, I take it. That's what I heard.

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Mr. George Radwanski: That's correct. The analysis of our experts, when we looked at this and Treasury Board endorsed it, was that it was effectively cost-neutral.

Mr. Ken Epp: Okay, thank you.

The Vice-Chair (Mr. Paul Forseth): Do you have a question?

Okay, we'll go to Mr. Clark. Did you want to follow up?

Mr. Joe Clark: No, I'm fine, thank you.

The Vice-Chair (Mr. Paul Forseth): Okay. Anybody from the government side...?

Mr. Radwanski, that appears to be the end of the questioning.

During the course of your testimony today, Mr. Bryden asked a number of things from you on two different occasions. I thought it might be appropriate that the clerk at least provide you with the rough copy, the blues, of where all these requests were made and give you a few days to consider that, and you may give us some kind of a response. In view of that response, the committee will then decide what course of action to take, if any, after that, because there was a whole list of things there, and I think that's the only fair way to do that.

So if there are no further questions....

Mr. Bryden.

Mr. John Bryden: Mr. Chairman, I'm not quite sure how this committee operates, but I would like to serve notice of motion that the four requests I made here will take the form of formal motions that I'll introduce at the committee, or somebody else will introduce at the committee, at an appropriate time. So I'm serving notice that I'm serious about getting this information.

The Vice-Chair (Mr. Paul Forseth): Yes. Thank you.

I will remind you that we'll be voting on supplementary estimates (B) at tomorrow's meeting. We're now going to be adjourned until 3:30 on Wednesday, tomorrow. We're going to be in room 362, East Block.

The meeting is adjourned.