CIMM Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Citizenship and Immigration

EVIDENCE

CONTENTS

Tuesday, March 18, 2003

Á

1110

Mr. Sarkis Assadourian (Brampton Centre, Lib.)

Á

1115

The Chair

The Hon. R. Salhany (Retired Judge, As Individual)

Á

1120

Á

1125

The Chair

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

Mr. R. Salhany

Á

1130

Mrs. Diane Ablonczy

Mr. R. Salhany

Mrs. Diane Ablonczy

Mr. R. Salhany

Á

1135

The Chair

Mr. R. Salhany

Mrs. Diane Ablonczy

The Chair

Mr. John Bryden

Á

1140

Mr. R. Salhany

Mr. John Bryden

Mr. R. Salhany

Mr. John Bryden

Mr. R. Salhany

Á

1145

Mr. John Bryden

Mr. R. Salhany

The Chair

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ)

Mr. R. Salhany

Ms. Madeleine Dalphond-Guiral

Á

1150

Mr. R. Salhany

The Chair

Ms. Libby Davies (Vancouver East, NDP)

Mr. R. Salhany

Ms. Libby Davies

Mr. R. Salhany

Á

1155

Ms. Libby Davies

Mr. R. Salhany

The Chair

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.)

Â

1200

Mr. R. Salhany

Â

1205

The Chair

Mr. Sarkis Assadourian

Mr. R. Salhany

Mr. Sarkis Assadourian

Mr. R. Salhany

Mr. Sarkis Assadourian

Mr. R. Salhany

Â

1210

The Chair

Mr. R. Salhany

The Chair

Mr. R. Salhany

The Chair

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

Â

1215

Â

1220

The Chair

Mrs. Diane Ablonczy

Â

1225

Mr. George Radwanski

The Chair

Mr. George Radwanski

Mrs. Diane Ablonczy

Mr. George Radwanski

Â

1230

The Chair

Mr. David Price (Compton—Stanstead, Lib.)

Mr. George Radwanski

Â

1235

The Chair

Ms. Madeleine Dalphond-Guiral

Â

1240

Mr. George Radwanski

The Chair

Ms. Libby Davies

Â

1245

The Chair

Ms. Libby Davies

Mr. George Radwanski

Â

1250

The Chair

Mr. Massimo Pacetti (Saint-Léonard—Saint-Michel, Lib.)

Mr. George Radwanski

Â

1255

The Chair

Mr. George Radwanski

·

1300

The Chair

Mr. Sarkis Assadourian

Mr. George Radwanski

·

1305

Mr. Sarkis Assadourian

The Chair

Mr. Andrew Telegdi

The Chair

Mr. George Radwanski

·

1310

The Chair

·

1315

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

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CANADA

Standing Committee on Citizenship and Immigration

---

NUMBER 049

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, March 18, 2003

[Recorded by Electronic Apparatus]

Á  (1110)  

[English]

    Mr. Sarkis Assadourian (Brampton Centre, Lib.): There's an error here, I think. We have $111,900. The second time it says $11,900.

Á  (1115)  

    The Chair: Yes, I'm sorry. Our operating budget is $111,900.

    It's been moved on our international travel. Thank you, John.

    (Motion agreed to)

    The Chair: Can I have a motion on our operating budget of $111,900 for the year? Thank you, Yvon.

    (Motion agreed to)

    The Chair: The third motion is that the chair be authorized to approve payment for a working meeting and hospitality offered by the committee during their travel in February 2003. That's when we were on the road.

    (Motion agreed to)

     The Chair: Next we have a motion that the committee put out a press release announcing the study on a national ID card.

    (Motion agreed to)

    The Chair: The last motion is that the committee, during its visit abroad, present souvenir gifts to foreign government representatives who will be participating in the committee study.

    (Motion agreed to)

    The Chair: Thank you.

    I would remind you that some of the members, even though we have not heard from the NDP and the Conservatives, are travelling to Washington next week. Jerry and I will be representing our side, and there will be Diane and Madeleine. So far I haven't heard from the other two members. We'll be talking to our American friends with regard to border issues, immigration issues, and citizenship issues.

    We are honoured to have Judge Salhany join us today to talk about Bill C-18, an act respecting Canadian citizenship. I take this opportunity, your honour, to thank you very much for taking the time to talk a little about your experience under old legislation. You've had an opportunity, as I understand it, to look at ours, and you can tell us what you think. We pass these laws, and you have to interpret them and work with them, so we're delighted that you can give us this insight. I think it's most important for us. Welcome, on behalf of the committee.

    The Hon. R. Salhany (Retired Judge, As Individual): Thank you.

    About a month ago, just as I was on my way to some holidays, I got a fax from Andrew's assistant, and Andrew was very insistent that I respond to some of these areas. I was sent clauses 16, 17, and 18 of the bill, and he asked what I thought of them. He also sent me the commentaries. I've read the commentaries, I think most of them are excellent, and I don't intend to repeat them today. What I thought I would do is touch on three areas that concern me and would probably concern judges and invite questions from you. Maybe I can be of some assistance to this committee.

    Clauses 16, 17, and 18 talk about three methods of dealing with the revocation of citizenship. Clause 16 deals, as you know, with the action by the minister in the Federal Court, clause 17 deals with a certificate of the minister in the Federal Court, and clause18 deals with the limited situation for people who have only had citizenship for five years or less. I want to talk about three specific areas, first the section dealing with the kinds of conduct that will result in loss of citizenship.

    The first element is well understood among lawyers and judges, and that's “false representation”--straightforward, well defined, centuries of interpretation. The second one is “fraud”--well defined, centuries of interpretation. The third one is something that concerns me: “by knowingly concealing material circumstances”. What does it mean? You can put 12 lawyers in a room and they'll give you 12 different answers to what that means. I cannot understand why that has been included. Fraud and false representation cover, in my view, every conceivable kind of conduct by somebody whose citizenship you would want to have revoked. I notice that some of the commentaries say it should be defined. Why define it if false representation and fraud cover every situation, and why include it?

Á  (1120)  

    The second concern I have is clause 17, the certificate procedure. It imposes a burden on judges. They are not equipped, by reason of the nature of their judicial process and training, to make a proper determination. To understand that, we have to understand the judicial process; you're all familiar with it, but just let me repeat it. We operate under what is called the adversary system, and the adversary system has to be contrasted with the French inquisitorial system developed under the Code Napoléon. The adversary system presumes that if you put two equal adversaries into a courtroom with a neutral judge who knows nothing about the case, who comes to the case without having any information about it, through the process of examination and cross-examination, truth will emerge. Whether it does or not may be another thing in an individual case, but that's the presumption. The European system, which I don't need to go into in detail--and of course, it varies in Europe--is that the judge becomes what in France is called le juge d'instruction, the examining magistrate, the investigator. That judge has the opportunity to question the witnesses, to attest to their credibility, and there are two aspects of credibility. One is reliability. We always think a witness's evidence shouldn't be believed. Why? There may be two aspects of it. First, he may be unreliable, he may not know the facts as he presents them to the court. Second, he may know the facts, but he lies about them. Under the adversary system, when you get two sides examining and cross-examining, there's a presumption that truth will emerge.

    What does clause 17 say? Essentially, it says we're going to go to that judge, who by training and experience has never done any investigation and has learned that he's supposed to sit in the court room, keep his mouth shut, and listen to what each side has to say, and then at the end make a decision based on what is reasonable, after assessing the evidence, and say, now we want you to become an examiner and a cross-examiner. That arises out of subclause 17(4), particularly paragraph (d): “the judge shall examine the information and any other evidence in private”. The judge then has to determine whether the national interest is involved. How does a judge, whose training is essentially to listen to two sides present evidence and cross-examination, make that determination?

    One of the things we've learned as judges is that people who are offered something have a tendency to lie. In this case, let us assume you have an informant--and I'm dealing with a national security situation. That person has probably been accused of a terrorist activity or a national security situation. The police go to that person and say, we need more information, we need you to tell us about your activities; otherwise, we're going to charge you. That person, to save his skin, is going to suddenly spill on people and may falsely accuse people of committing an act involving national security. How is the judge supposed to test that? In the normal process the judge hears both sides present the evidence and comes to a conclusion. How is the judge supposed to make that decision?

    Then the judge is supposed to make a decision under clause 17 about whether that evidence will involve national security, whether it will affect the safety of an informant, and if he comes to that conclusion, based on what one side, the Crown, has presented, all the other side gets, the person whose citizenship is subject to revocation, is a summary. How can the person test the credibility of that evidence without having a lawyer to cross-examine and to test the reliability and the honesty of the witness? Then the person is expected to defend themselves. It's simply impossible under this provision.

Á  (1125)  

    The final comment I have to make is on the appeal procedure. I was talking to Andrew earlier, and he said there's an appeal procedure under clause 16. I said, where is it? And he said, well, it's not there, but isn't there an automatic right of appeal? There is no automatic right of appeal. How do you appeal that decision under clause 16? Under clause 17 there's a denial of appeal. Under clause 18 there are no appeal provisions. How can we determine that the judge who heard these matters did so in accordance with principles of natural justice and due process? How can we be satisfied that the judge has reached the right conclusion? We learned a long time ago that judges are subject to error, and the Court of Appeal and the Supreme Court of Canada told me on occasion that I had been subject to error. I'm glad they told me I was subject to error, because it would have been terrible if I'd found against somebody on the basis of my error. I have some difficulty understanding why this bill wishes to deny people the right of appeal to the Federal Court, where judges can have the luxury of looking at the transcript of evidence and making a decision as to whether, on the evidence presented, the conclusion reached by the trial judge was the appropriate one in the circumstances.

    Those are my comments, and I'm here to answer any questions.

    The Chair: Thank you very much, your honour. It is helpful for us to get the judicial perspective on our legislation and how, in practical terms, something can work or not work. Some of the suggestions you've made we've heard before, and now we'll have an opportunity of testing the adversarial system, politically that is, in asking you some questions.

    Diane.

    Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Thank you, your honour.

    With respect to evidence that can be heard not according to the usual rules of evidence, I appreciate the fact that there's a concern about this. I think we all have a concern about someone being stripped of citizenship by, basically, secret evidence that has not been properly examined, and you were very eloquent on that point. I understand that similar provisions have been in the Citizenship Act before. Has a case ever come before you where that kind of evidence came forward? When I asked about this, I was told these provisions are always in there, because sometimes the Canadian government is given information from other intelligence services or other governments on condition that it not be publicly disclosed, but it is extremely important and relevant in protecting our country from a very serious terrorist or foreign criminal. I'm interested in having you discuss whether you see any circumstance where that kind of evidence, which comes with conditions to our government, should be brought into the process, even though it can't be dealt with under the normal rules of evidence, disclosure, cross examination etc?

    Mr. R. Salhany: I'm always suspicious of someone who comes forward after being arrested for an offence--I'm talking in the criminal law sense, but we can apply it to civil law--and being told he is going to go to prison for 100 years. Let's not kid each other, that's what the police do. In this case, they are told, you are going to lose your citizenship unless you tell us all about the people you're involved with; don't worry about it, we'll protect you under this act, you can be anonymous. What's he got to lose? He'll name this person and that person and make up stories. How do you test that evidence? There is really no way of testing that person's credibility.

    Canada isn't the only country that has had problems with this and is trying to deal with it. The Brits have dealt with it by swearing in defence lawyers, and they're struggling. They say, we understand that there is no right of examination and cross-examination and the only protection for a person is to have a lawyer to attack the evidence, so we will allow defence lawyers to be sworn in, and they will protect national security. They will not reveal that information to their clients, but we'll allow them to know what the information is, so they can effectively cross-examine the witnesses and the evidence. In England, apparently, there's a great deal of criticism even of that procedure.

    For years we fought to create a rule called due process, and it essentially means you have the right to face your accuser in an open courtroom and say to your accuser, you tell me what I did, and let me test your credibility, reliability, and honesty. That principle was developed and the courts finally agreed that it should continue 400 years ago. Now we're in a state of panic, understandably, with 9/11 and everybody's worried about it. It's at times like this that we have to ensure that principles developed a long time ago are preserved and we just don't panic and say we've got to deal with it and take away people's rights.

Á  (1130)  

    Mrs. Diane Ablonczy: So in your view, the potential abuse of this provision and the need to uphold the principle of due process would override any consideration of needing to use secret evidence.

    Mr. R. Salhany: No, I'm saying there has to be a better way than simply saying you're totally denied due process. That's essentially what this is doing, denying you due process. All the Crown has to do is come in and say, national security, protection of the informant. It says here the judge has to consider that. How? A judge is not equipped to examine and cross-examine, to determine whether there is any basis for this. I really haven't had an opportunity to consider another method, but there obviously has to be another method. It may be to allow defence lawyers to be sworn in. That may be the only compromise to satisfy the two sides.

    Mrs. Diane Ablonczy: I notice that you are critical of the wording in clause 16 that talks about “knowingly concealing material circumstances”, as being very uncertain and not subject to a clear definition. One of the concerns I have and keep raising--the committee will be expecting me to do this--is in clause 21, where an individual can be denied citizenship if the cabinet has reasonable grounds to believe he or she has “demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society”. I don't know if you have examined that clause, but given that wording, would you have similar concerns about the difficulty with certainty and definition of what it means to have demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society?

    Mr. R. Salhany: Let me put it to you very briefly. I'm always concerned when legislation uses imprecise language, because what you're saying to a judge is, you solve it. You're asking judges, who don't have experience and don't really have any background as to what Parliament is trying to do, to come up with an answer. Language should be as precise as possible. I can only tell you that after almost 40 years of having to deal with provisions, particularly the Criminal Code provisions, because that's where my expertise is supposed to lie, legislation is getting more confusing every day. One gets the impression that when the drafters don't know what to do and how to solve a problem, they just use imprecise language, hoping that someone will solve it some day, and you just encourage more litigation.

    All I can say about this specific provision is that I can't imagine that fraud or false representation would not cover every situation. Why open it up to other language that is, in my view, confusing?

Á  (1135)  

    The Chair: If I could, our colleague Diane has asked a couple of very good questions, and I just want to inform the committee.

    You asked if it was in the old citizenship act. It wasn't. It's in this one. It also resides in the old immigration act and the new one we just passed, and it now exists in the terrorism bill we just passed.

    The other thing I should say is that under clause 21 the decision now resides with the minister, not even a judge, as to a flagrant violation of a Canadian value. So it's not even left to a judge to decide, it's left to the minister or the government.

    Mr. R. Salhany: Would they be setting out criteria as to what it is? At least if they set out criteria, it's precise, you know how to deal with it.

    Mrs. Diane Ablonczy: When I've questioned the department, the answer I get is that the values would be similar to those set out in the Oakes case. There are a number of objections to that, which I don't think I have time to get into, but the main point is that we're all left guessing about those values. Further, does every citizen have to consistently demonstrate all the values underlying a free and democratic society? Surely those values belong to the broader society, rather than having to be adhered to all the time by every single citizen. There are a number of arguments, which I wish we had time to discuss, but perhaps my colleagues would rather have time to discuss things with you themselves.

    The Chair: I'm sure they will.

    John Bryden.

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

    I'll follow up on the line of questioning of Mrs. Ablonczy. I'd like to give you a copy of clause 21. It's only about eight or nine lines long, and it's very relevant to the discussion. I'm very concerned about the concealing of material circumstances as well, but it would appear to me that it may be a reference to clause 21 and this flagrant disregard. It would appear that one of the themes behind the changes in the legislation is the attempt to winnow out those people who are found guilty of genocide, war crimes, that kind of thing. Clause 17 is trying to winnow out these people retroactively. So instead of having “knowingly concealing material circumstances”, if we were to substitute “knowingly concealing a flagrant disregard for the principles and values of a democratic society”, would that help your concerns about the imprecise language?

Á  (1140)  

    Mr. R. Salhany: Not at all.

    Mr. John Bryden: Then is it possible to fix the words in clause 21 by referring specifically to the law? Instead of saying “principles and values underlying a free and democratic society”, would we help you, as a judge, if that said “a flagrant and serious disregard for the principles and values underlying the Charter of Rights and Freedoms” or “the Constitution of Canada”? The charter does define some basic rights and freedoms, so would it help with clauses 21 and 17 if the wording were changed to make a direct reference to a flagrant disregard of something that is law, which is the Charter of Rights and Freedoms?

    Mr. R. Salhany: You say the charter itself does define. It sets out rights, but subsection 24(2) allows evidence to be excluded, and that's also spawned a great deal of judicial interpretation. I would think what you want to do is be precise, to prevent a lot of court cases going on. I come back to my main thesis. If fraud and false representation cover everything, why expand to “knowingly concealing material circumstances”? People come into this country, we let them in, we grant them citizenship. We say, okay, you've committed a fraud, you lied when you did this, or you made a false statement; but for that, we would not have let you into this country. Isn't that enough of a reason to revoke their citizenship? Why do we have to go on and use words like “knowingly concealing material circumstances”? What is “material”?

    Mr. John Bryden: The point I'm making is whether that situation can be corrected by being more specific as to disregard of the Charter of Rights and Freedoms, in other words, concealing the fact that you had conducted war crimes.

    Let me give you a better example, which I've used in other situations. There are many countries in the world that are democratic societies in which extrajudicial killing is now being implemented. Currently, it would appear, because of our charter, extrajudicial killing is disallowed. It would be a flagrant disregard for the charter, but maybe not the rules and principles of a democratic society. Does it sufficiently cover it, the concealing of flagrant disregard for the Charter of Rights and Freedoms, which might involve not disclosing that you had engaged in or authorized extrajudicial killing in the homeland that you come from? That's the first question.

    Second, if it is a concern to try to winnow out people who have come from states where actions are allowed by the state, but aren't allowed by Canada, because of its charter, would it not be better in clause 21 to replace “principles and values underlying a free and democratic society” with a specific citing of our Constitution or the Charter of Rights?

    Mr. R. Salhany: Let me start off by saying, if you spell out something specifically, I'm in favour. But should not the screening have occurred at an earlier stage? Shouldn't the questions you're concerned about, for example, on extrajudicial killing, have been put to the applicant for citizenship at the time they applied, first of all for residency?

Á  (1145)  

    Mr. John Bryden: I'm sorry, I didn't mean to intervene, but I was just going to submit that people do lie before the refugee boards.

    Mr. R. Salhany: And if they do, that's a false statement, that's fraud: but for the statement, they never would have got in. That's what I'm saying. Fraud is an act to someone's detriment, here the government's detriment. But for that misrepresentation, they wouldn't have been able to get into Canada. I think that's enough to cover it. That's why I say I don't know what “knowingly concealing material circumstances” means. It's going to spawn a great deal of concern and more litigation.

    The Chair: Thank you.

    Madeleine.

[Translation]

    Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman.

    Good morning, Mr. Justice, and thank you for being with us today. When discussing legislation, it's always interesting to hear from someone who will ultimately decide.

    As the chairman said, many of our witnesses showed great concern with regard to sections 17 and 18. I think that most of the members sitting around this table believe that we must improve the legislation.

    Do you think that the best way to improve the bill would be to tighten up the first part of the bill, which contains the definitions, more specifically the values which are referred to and which are based on the Oakes decision, which you are surely familiar with, and which clarified certain issues, since the judge based his ruling on them? Would this be a good and desirable thing? That is my first question.

[English]

    Mr. R. Salhany: From the point of view of a judge, I would always welcome legislation that was precise and defined what we were supposed to do, rather than leaving it up to the judge to define, because then you get different judges having to define it and you have different interpretations. Then you need to go to the Court of Appeal for them to come up with a single definition, and from there you end up going to the Supreme Court of Canada, which may disagree with the Court of Appeal. So there are many problems that you create when you're not specific. I agree, definitions are very important, as is to be as precise as possible. Again, the problem that always arises, in my experience, is that the draftsmen try to avoid being precise, because it's very difficult to define such terms as, in this case, “knowingly concealing material circumstances”. I agree with you fully that it's important to have a definition section at the very outset.

[Translation]

    Ms. Madeleine Dalphond-Guiral: I have a second question, which has not yet been raised today and which gives me great concern. It is with respect to the probation period for all new Canadian citizens, who will be in an indeterminate situation for up to five years.

    I admit that I have a problem with that. It's as if after my nursing studies, I had not really been recognized as a professional until five years later. I have a lot of problems with that.

    Some time ago, you had to wait five years before becoming a Canadian citizen. Today, it is three years. Would it not be wiser to extend the period before Canadian citizenship can be obtained, to allow time for the necessary investigations, so as to find out whether the applicant is the kind of person Canada wants or not? Would this not be preferable to granting citizenship only to withdraw it two and a half years later, for various reasons?

    I would like to know what you think about that, because this measure would affect every new Canadian citizen, of whom there are many.

Á  (1150)  

[English]

    Mr. R. Salhany: I agree fully with you. I think the investigation has to be done at the residency stage. Once a person acquires citizenship, they go into a different class. It's important that due process be extended to the citizen, it is not necessary at the residency stage, because that person has not really acquired the special status only citizenship can give. But I must comment that the Supreme Court of Canada has interpreted the charter to extend not only to citizens, but also to people who are passing through. There is another problem. But I agree that we should have a long period of investigation. At that stage, once we make that decision, it should be very hard to remove somebody.

    The Chair: Okay.

    Libby.

    Ms. Libby Davies (Vancouver East, NDP): Thank you very much for coming today. I'm sorry that I didn't get to hear all of your testimony, but I did pick up on some of what you were saying in the last few minutes.

    Looking at this summary we have before us of all the organizations and individuals who thus far have come before the committee, I would say there's very strong opposition overall to this bill. I think many of the groups and individuals were expressing the same kinds of concerns you have.

    I just wanted to pick up again on clause 17, loss of citizenship through revocation because of the security certificate process. One of the problems with this is that the revocation can take place without people seeing all the evidence and without an appeal process. I don't even know how that's constitutionally to be upheld. I would imagine that would be challenged if it were approved in law.

    Mr. R. Salhany: It may be challenged, but not necessarily successfully, because I think the courts are saying, Parliament speaks, we have to obey. There's no constitutional right to an appeal. There's nothing in the charter that gives you a constitutional right to appeal. That's why I'm concerned that there's nothing in this act. Clause 17 denies the right of appeal. There's nothing in the act that gives you the right of appeal.

    Ms. Libby Davies: How far does this kind of provision extend in other kinds of processes or legislation? As a non-lawyer, I have a general sense when we talk about democratic values underlying Canadian society. One of those values for me, though I don't know if it's spelled out anywhere, is the right to an appeal, the right to know what's being said against me, if it's being used against me in a judicial process. It's sort of a contradiction. We don't spell out what those values are, yet that's something I would think about. If I am being faced with something, I have a right to know what's going on. With regard to other laws, is it generally accepted that you have the right of appeal, the right to know what you're being charged with, what's being alleged against you?

    Mr. R. Salhany: Clearly, under the criminal law one has a right to know, to face the accuser, and to have the accuser say in open court what one has done. There has developed judicial interpretation involving informants. For example, there are many crimes where it is very difficult for the police to infiltrate, so they have informants. These informants will come forward and provide evidence to the police, and they want some protection. The courts have said, we're not going to necessarily order disclosure of the informant's name and background unless the person can't protect themselves, unless the person can't defend themselves. Invariably, the courts will simply say, you have to disclose who the person is and that person has to face the accused in court. Invariably, in those cases the Crown has withdrawn the case. We do accept, at least as far as the criminal courts are concerned, that it is important that a person go through the process of being allowed to examine and cross-examine to test the credibility of the witness.

Á  (1155)  

    Ms. Libby Davies: So if this provision were approved as part of this bill, theoretically, if it went before a judicial process, even that discretion you're describing in other processes would not be available in this case. Is that right?

    Mr. R. Salhany: Subclause 17(4)(b) says, “if, in the judge's opinion, its disclosure would be injurious to national security or to the safety of any person”, he must keep it confidential. How does the judge make that decision? Who does he rely on? He relies on the Crown. The Crown comes in and says, look, we've got this witness who has said this person is involved in national security issues. The judge says, how do I know that? Well, you have to rely on us, Judge, because we know, we've done a complete investigation. The judge is not equipped to test the truthfulness. I'm not suggesting that the officer of the Crown may be lying, but they may be fooled.

    Let me give you a simple example. Let us assume you're sitting at home one day and the police come in and say, we have information that you're involved in national security issues. Who told you? We can't tell you. Well, what did they say against me? You'll find out later, they'll give you a summary. How do I fight the summary? Well, it's national security. Let us assume somebody down the street is involved. Let us assume somebody down the street, for some reason, has a grudge against you. Let us assume that person, for some reason, wants to get some immunity from the Crown. They're going to name everybody they can, and they're going to gain, under this, anonymity. How can you fight that? You can't.

    The Chair: And we all know Libby Davies is not a national security concern whatsoever--at least, some of us are prepared to vouch for that.

    Andrew.

    Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you very much, Mr. Chair.

    Welcome to the committee. It's good having you here. I know you have given the issue of not having appeal rights a great deal of consideration. Section 7 of the charter talks about the right to life, liberty, security of the person, and to me, very few things are more involved in citizenship than security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.

    What I hear you saying to us is, be precise in the bill, spell things out, and one of the things you said we should spell out is the appeal mechanism. Quite frankly, if the government is going to charge fraud, they should prove fraud. Then you had trouble with the wording “knowingly concealing material circumstances”. In previous proposals for this bill the people who drafted the bill were going to drop the word “knowingly” and just say “concealing material circumstances”, which makes it even more confusing.

    So if we put in the normal judicial process, if we are going to have revocation on the basis of fraud, because fraud is something the courts understand--they deal with thousands of cases each and every year, and maybe they should be dealing with some more in light of Enron, what have you--if you're going to be charged with fraud, and if you're going to do something as Draconian as revoke someone's citizenship, surely the criminal standard should apply, and that's what has been coming through loud and clear from all the witnesses. I just want your response to that, but also give us a response as to how satisfactory you find the current legislation? Obviously, we don't want to repeat the same mistakes in the future act.

  (1200)  

    Mr. R. Salhany: First, section 7 means everybody has a right to due process, and due process means the right to examine and cross-examine witnesses, to face the person who is accusing you. I think that is so fundamental to our system that any attempt to take it away is--I hate to use the word--Draconian. We're living in a time of fear, and that's the time we have to be strong in protecting individual rights, stronger than at any other time.

    You want me to talk about the presumption. As you know, there are two presumptions in law, “on balance” and “beyond a reasonable doubt”. The provision for proof beyond a reasonable doubt has been in our history since the Wilmington case at the turn of the century, and for juries it's a heavy onus. I don't think it's that heavy for judges. I think judges use a little more common sense when it comes to that. But proof on balance, if you ask me personally, I think is sufficient in cases like this. I know some judges at the Federal Court have interpreted it as somewhere between proof beyond a reasonable doubt and proof on balance, and where that lies I don't know. I think they've said something like “very strong evidence”, “very persuasive evidence”. Judges have struggled themselves with the onuses of proof, and they've tried to set a middle ground.

    In one of the citizenship cases I'm familiar with, where the judge dismissed a proceeding against somebody who was charged with a war crime offence and they sought to revoke citizenship, the judge used “very strong proof”. Most of the judges use proof on balance of probabilities. With the scales of justice, if you put a little more on this side, that's proof on a balance of probabilities. If there is some concern with the onus of proof and the government doesn't want to go so far as to have proof beyond a reasonable doubt, surely you could come up with language that would be a middle ground in something like this.

    As to the third question, I've only had one experience, and that was some years ago, when I was asked to comment on a decision that had been rendered by a judge of the Federal Court. I came to the conclusion that the judge came to the wrong decision. That was my own opinion. I'm sure the judge thought I didn't know what I was talking about, but I was simply asked for an opinion on the basis of the evidence that had been presented. I am satisfied in my own mind that had that gone to appeal, it would have been reversed, but there was no appeal procedure, and there has been no appeal procedure.

    I'm sure the judges of the Federal Court themselves have had difficulty with the existing legislation and would welcome the legislation being spelled out more specifically.

  (1205)  

    The Chair: Thank you.

    Mr. Assadourian.

    Mr. Sarkis Assadourian: Thank you, Mr. Chair.

    It's good to have you on the other side of the bench for a change.

    When a certificate is issued that will be signed by two ministers, before they sign the certificate, it will go through the system within their own departments, where they will have to approve it and everything else. So basically, by the time it comes to the judge, it has gone through a screening system within the system with two ministers. Am I right or wrong?

    Mr. R. Salhany: Well, you're presuming that the ministers screen it, but do they screen? You know more about that than I do. Aren't they relying on the people who are instructing them? I was a Crown prosecutor and a defence lawyer. I didn't do my own investigation, I relied on what the police told me. I didn't do any screening.

    Mr. Sarkis Assadourian: I assume the judge will have the right or obligation to ask questions of the ministry if he or she feels there are some irregularities in this certificate. That's my first point.

    Mr. R. Salhany: The judge will have the right to question the lawyer for the Crown about the evidence that's being presented.

    Mr. Sarkis Assadourian: The point I want to get to is that there's a possibility of error on the part of the judge. We're all human, we all make mistakes. So what if, rather than one judge making a decision, a panel of three judges get together to decide if a certificate is appropriate or not? This could eliminate any injustice to a person and reduce the chances of being unfair to a Canadian citizen. Would you go for it?

    Mr. R. Salhany: I'd like to see a process where a single judge gets the certificate and then has some method whereby both sides scrutinize the evidence through examination and cross-examination. The judge is not trained to be an investigator, the judge is not trained to examine or cross-examine. He or she may have been a wonderful trial lawyer--sometimes, when I sat as a judge, I used to think I could do a better job cross-examining than the lawyers in front of me, but I had to learn to keep my mouth shut. That's not the function of the judge. We, by training and experience and by the nature of the process, are supposed to sit there and listen to what both sides have to say. I don't know how we could do the job of investigating the matter. As I said in my opening remarks, under the French system the examining magistrate, the juge d'instruction, works up the case. He investigates, he questions everybody, he does everything, and then he presents it to the court. He's in a better position to do it, but it's not so under our system, where the judge is supposed to sit there and listen to both sides.

  (1210)  

    The Chair: Your honour, we are talking about some groundbreaking possibilities with process under clause 17. Sarkis has just mentioned a three-judge panel. You indicated, surely, that the French model might be something we could look at. I think there's an appetite in this committee to ensure due process, even on the certificate issue. As you know, that certificate issue is before the public now in certain cases of terrorism and so on. You might, if you could, after giving it some thought, show us a process that might work, so that we might consider and test it for ourselves with our ministers, and even with judicial officials. If you could take that on, think about it, and forward it to us in the future, that would be most welcome.

    Second, I think your testimony has been very instructive and very important to us. You said perhaps a lot of this stuff can be avoided, that we needed to be precise in clause 21 and other clauses, and I agree with you. Once you become a citizen, I think you have the right of citizenship, but the privilege of becoming a Canadian citizen, as a permanent resident, is different. There is a quasi-judicial system at the front end, the citizenship judge, who has eye contact with the person and has an interview: they must have a knowledge of Canada, they must have a knowledge of our language, and they must also prove certain things, residency and so on, and look at the application that's been submitted. This bill talks about getting rid of citizenship judges and replacing them with commissioners, who, in fact, will have ceremonial functions, and the administration of the bureaucracy will have the discretion that is now in the hands of a citizenship judge. As you said, perhaps we ought to take a little time at the front end to make sure everything is all right, and perhaps you need that interaction or the discretion of some independent person, not the administration, in making that evaluation on a potential Canadian citizen.

    Mr. R. Salhany: I agree with you 100%. I think it's important at the front end to get somebody to carefully scrutinize the applicants for residency and from there on.

    I'll think about the matter of process.

    The Chair: It's been a pleasure and a real honour for us, Judge, to have you here. Thank you very much.

    Mr. R. Salhany: Thank you for inviting me. Thank you very much.

    The Chair: Colleagues, we will immediately move to our next witness, the Privacy Commissioner of Canada, George Radwanski, as we talk a little bit about national identity cards, which is the other thing this committee is looking into. We travelled across the country listening to a number of witnesses, including other privacy commissioners.

    Mr. Radwanski, I want to thank you, on behalf of the committee, for appearing before us, and we look forward to your opening remarks. I'm sure we'll have an awful lot of questions, because we have had of your colleagues across the country.

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

    I very much appreciate this opportunity to meet with you today on the subject of a biometric national ID card. Let me say right at the outset that in my view, there is no need for a national identity card scheme in this country. There is no justification for it, it would have enormously damaging implications for privacy rights, it is totally foreign to our Canadian traditions and values, and it would cost, in my best estimates, somewhere between $3 billion and $5 billion, probably closer to $5 billion, to implement, money that could be far better spent on purposes that help us, rather than harm us.

    The creation of a national ID card is not only an idea without merit, it is an idea totally without substantial support. This committee has to date heard from 61 witnesses on this subject, and only five of them were in favour of a national ID card. Of these three were private citizens, one was a research and consulting firm on immigration issues, and one was a group that represents immigrant women. And not one of even these five “favourable” witnesses actually came before this committee in order to support this card. They were only asked about it while appearing on other matters. As well, since last November 21 newspapers across Canada have run editorials opposing the creation of a national ID card. Not one newspaper has editorially supported it.

    Not even the minister who asked this committee to study the idea of a national ID card, Mr. Coderre, has actually said he himself supports it. Mr. Coderre says he only wants a debate on the issue, and even one of Mr. Coderre's own cabinet colleagues, his predecessor as Minister of Citizenship and Immigration, has taken the highly unusual step of publicly rejecting it. Well, Mr. Coderre has had the debate he wanted, and I very much hope we can all agree that the “no” side has predominated by a landslide.

    Let me now briefly summarize why, as the officer of Parliament mandated to oversee and defend the privacy rights of Canadians, it is my duty to oppose the creation of any such national ID card. A national identification card would radically change Canadian society, by drastically infringing on the right to anonymity that is a key part of our fundamental right to privacy. In Canada agents of the state have no right to require us to identify ourselves in our day-to-day lives unless we are being arrested or carrying out a licensed activity, such as driving. The police cannot stop people on the street in Canada and demand papers. The creation of a de facto internal passport would inevitably, whether immediately or over time, change that. The creation of a biometric national identity card, which would be required for more and more purposes, would also open the door to relentless tracking of our activities, transactions, and whereabouts.

    There is no realistic possibility that such a card could remain voluntary. Even if it were initially introduced on a voluntary basis, who can actually believe the government would invest billions of dollars in the creation of such a card and the network of biometric readers that would be required for it and indefinitely allow that it be used only by some fraction of the population? In any event, as both government and businesses started asking people to produce such a card, the pressure to conform would be enormous. People who didn't have one would increasingly be open to suspicion.

    Ever since September 11 I have repeatedly made clear that as Privacy Commissioner, I would never seek to stand in the way of necessary and justifiable measures to protect us against terrorism, even if they required some infringement on privacy, but I have suggested that any such proposed measure must meet a four part test of necessity, effectiveness, proportionality, and lack of any less privacy-invasive alternative. In my view, a biometric national ID card fails dismally on every one of those counts.

    No one, not even Minister Coderre, has suggested that such a card is necessary. If a minister of the government, in the exercise of his duties, believes a measure is necessary, he doesn't call for vague debate on it, he forthrightly advocates it, which Mr. Coderre has not done. He has only suggested, without sufficient detail or elaboration, in my view, that a biometric ID card could make it easier to enter the United States, could help reduce identity theft, and might somehow help against terrorism. That's a long way from demonstrating real and pressing necessity for this particular measure.

  (1215)  

    The second test, effectiveness in meeting a demonstrated need, scarcely makes sense in this case, since no need has been demonstrated, but a national ID card would, in fact, be ineffective in achieving any of the benefits the minister has vaguely cited. We already have a document for facilitating entry into the United States or any other country, the Canadian passport. And it's not clear why Mr. Coderre believes that the United States would spend billions of dollars of its own money to install a vast network of dedicated biometric leaders for a Canadian identity card at every border crossing from coast to coast.

    As for identity theft, these frauds seldom happen face-to-face. They tend to happen over the telephone, by mail, and in electronic commerce, all situations where an ID card is simply irrelevant. The cards themselves would be susceptible to fraud. No matter how high-tech, they can only be as good as the documents individuals provide to establish their identity to obtain them in the first place. And not even the most high-tech card can long deter highly sophisticated organizations of criminals or terrorists. There is no technology that cannot be compromised or subverted. In fact, by relying on a single card and treating it as infallible, we would be making the situation much worse.

    As for terrorism, many of the September 11 terrorists were well established in their communities and used their own names. If the U.S. had been issuing identity cards--which they have no intention of doing, from all the information I have--these people would have qualified for one. An ID card is useless against terrorists sleepers who haven't previously identified themselves, against terrorists who manufacture false identities to obtain a card, and against terrorists who arrive as tourists or other visitors, who wouldn't have a card in any event.

    With regard to the test of proportionality, obviously, the damage to privacy can't be proportional to the benefits if the benefits are negligible. And the damage to privacy would be massive. First, we would have the prospect of the Government of Canada requiring every Canadian to come forward and be fingerprinted or retina-scanned. That itself is unthinkably invasive. The card would become an internal passport we would have to present to authorities on demand, making it a powerful instrument of social control. Businesses too would see the card as reliable and demand it widely as a condition of providing service. All this would move us towards a society where every movement and transaction we make could be recorded, tracked, and linked to our identity. And if a single national card also eventually, as seems likely, combined other functions, such as driver's licence, health card linked to electronic health records, and so on, the damage to privacy would obviously be greater still.

    This brings us to the final test and the conclusion of my remarks. Is there a less privacy-invasive alternative? In this instance the alternative is simple: no national identity card. I respectfully urge this committee to resoundingly say no.

    Thank you very much. I'd be happy to answer any questions.

  (1220)  

    The Chair: Thank you, Mr. Radwanski.

    As you know, the committee just started the debate that's been thrust upon us, so to speak. We'll find out what the United States thinks when we're there next week. As I've said and you have indicated, the minister has given this committee a unique opportunity to have a blank piece of paper and see whether or not we want to write anything on it. And you've obviously done your homework on the number of witnesses--I didn't even know how many witnesses we had heard from. Let me tell you, we're not in any hurry to make easy decisions. Your comments are very much appreciated.

    Diane.

    Mrs. Diane Ablonczy: Thank you, Mr. Radwanski. I don't have to tell you, but I will tell Canadians who are watching our deliberations today, you are one of three independent watchdogs who are here to protect the public interest. You're a rare species and one we should be grateful to, with a great deal of interest in what you have to say.

    When the minister appeared before our committee in February, he told us over 100 countries use national ID cards. However, we've been provided with information from Privacy International refuting that claim. In fact, they said the kind of national ID card that is multi-purpose and integrated is very rare in the world, although it is being put into place by China, Singapore, Malaysia, and Thailand, not countries we emulate on many fronts. I wonder if you could advise the committee, from your studies, about the use of national ID cards, and particularly if any biometric identifiers are used in any other countries.

  (1225)  

    Mr. George Radwanski: Most European countries have ID cards of some sort, primarily voluntary, sometimes multiple. Biometrics are only now being explored. There are only four European countries that have mandatory ID cards, Belgium, Spain, Greece, and Germany.

    The Chair: The committee will be travelling to find out why they did such a thing.

    Mr. George Radwanski: I would note that the English-speaking countries, those that share a common law tradition in particular, don't have them. In Australia the idea was put forward and overwhelmingly rejected. In the United States, from conversations I've had, it is considered unthinkable to try to introduce such a card, let alone to fingerprint or retina-scan every citizen. In Britain they are looking at an “entitlement card”, which would be a national identity card. It is running into very rough water indeed. We'll see what happens, but I would not be surprised if they gave up on it as well. It's by no means a universal phenomenon. In fact, we asked Minister Coderre's office for a list of the 100 countries that have the card, and his office told us that he has no such list, and his department told us the same thing.

    Mrs. Diane Ablonczy: As I mentioned before, the public is watching this. When we talk about a national ID card, sometimes the response you get from members of the public is, no problem for me, I have nothing to hide. I'd like you to address that attitude. Do you think that's a reasonable response by an honest citizen? What would you say to a citizen who says that to me as a member of Parliament?

    Mr. George Radwanski: We hear that about a lot of issues these days that involve intrusions on privacy in the name of security, and I think it's a very flawed way of thinking. The premise that if you have nothing to hide, you have nothing to fear, carried to its logical extension, would mean, for instance, we shouldn't mind if the police were free to enter our homes at any time just to look around to make sure we're not breaking any law. Why not? We have nothing to hide. We shouldn't mind if the police or other agents of the state were free to listen to all our conversations on the telephone and read all our mail. Why not? We have nothing to hide. The fact is that we all have things to hide, not because they are wrong or shameful, let alone illegal, but simply because they are private.

    With a society in which the individual must feel that at any given moment any one, particularly agents of the state, may be looking over his or her shoulder, noting, recording, cross-referencing, judging, possibly misinterpreting every communication, every transaction, where we go, what we do, an individual is not truly free. One may say, I have no problem with showing a card, but if showing a card leads to being stopped on the street and having to show who you are, first, that takes away our fundamental right, as I said, of anonymity. Second, if the card starts being used for multiple purposes, and it will if we're going to have that kind of investment in it and it's supposed to be foolproof, businesses will want to swipe it eventually to make sure you are who you say you are if you're paying with a credit card or what have you. Chances are that a record would exist of every time that card is swiped as a back-up. Therefore, you start getting a record of where you've been, what you've done, where you've shopped, where you've travelled. If it starts to be used for every contact with government, again, the concept of silos that separate different transactions with government is lost, because everything could be traceable by that card.

    If you have nothing to hide, you have nothing to fear, but if we worry about identity theft now, what if someone misappropriates your identity biometrically? There are ways to do that. It's possible to make latex reproductions of fingerprints, for example, and use them in a scanner. I'm sure ways can be found eventually to defeat retina scanning as well, by some form of contact lens or what have you. It's also possible in a system that big, if it were national, for highly sophisticated criminals or terrorists to bribe the people who record the biometric information and somehow manipulate it. Suppose your biometric identity is misappropriated. If your social insurance number is misappropriated, which happens now from time to time, the government can issue you a new card with a new number, but if your biometric identity is misappropriated, the government can't exactly issue you a new thumb or a new eyeball.

    So there are very real problems to weigh. When people say they support this kind of card, with all respect, I say it's one thing to support it before you know all the implications, and that's been the experience in other jurisdictions as well, where governments have run into very rough sailing because they thought there wasn't much objection, until there was a real debate, and then people said, you have to be kidding.

  (1230)  

    The Chair: I have a lot of questioners, so I' ll have to make sure we have one at a time.

    David.

    Mr. David Price (Compton—Stanstead, Lib.): Thank you, Mr. Chair, and thank you for being here, Mr. Radwanski.

    First, for many transactions we have today we do have to show some form of ID, and I'm not talking about credit card transactions, I'm talking about many others, even down to writing a cheque or something like that. We have provincial ID. We have our driver's licence, medicare card, birth certificates in Quebec--the other provinces aren't quite up on all that yet--and our social insurance number, which we rarely use. Would you have any problem with seeing those four forms made into one card?

    My second question concerns all credit card transactions. You mentioned the problem of tracing transactions. The credit card companies out there are quite incredible in what they're doing right now. I know for a fact that every transaction I make is recorded somewhere, and somewhere along the line that information is passed on to somebody else, because I end up receiving things in the mail that could only have come out of information from my credit card. We have no control over that as it is now. I'd like your thoughts on that aspect.

    Mr. George Radwanski: I'll answer the second question first. I hope you're not offering a counsel of despair, that our privacy is already so badly invaded that we might as well throw up our hands, because that's certainly not a view that I share. Credit card companies obviously obtain a considerable amount of information. It's also true that as the PIPED Act, the privacy law that governs the private sector, comes fully into effect by next January, it or substantially similar provincial law will apply right across the country. Canadians have rights in their dealings with the whole private sector with regard to protecting their privacy. For instance, if you do not consent to having your credit card information disclosed to third parties for commercial purposes, you can complain to me and my office if you find yourself the recipient of materials that could only have come from that kind of process, and you can be sure that we'll investigate and examine the issue. There's also an important difference in that while credit card companies may collect the information and share it with others, they don't share it routinely with the government. But if this were a state issued card being swiped against a national base, the record of that swipeage, if there is such a word, would be in the possession of government, which again becomes a whole different way of cross-matching information and tracking where you are at a given time, what premises you frequent, and so forth.

    On your second point, about combining the kinds of IDs we have now, no, I would not be comfortable with that. In fact, one of the best protections of privacy and against worse identity thefts is a multiplicity of identity documents, and different types of identity documents are appropriate for different purposes. Only certain kinds of entities are entitled to demand your social insurance number, for example. Only certain people can ask to see your driver's licence. You may want to show other ID instead. Combining it all, first of all, reduces further our ability to control what information we provide, and second, makes us much more vulnerable to any kind of abuse.

    Also, what happens if you lose this thing or if there's a technical malfunction that somehow disables it? If anyone has had the misfortune of having their bank debit card get demagnetized or something and suddenly not work, when you've become used to using it and haven't planned otherwise, you know how bad that can be. What if your identity is tied up in a single card, which may not be that easy to replace, given the biometric process and so on? The more there is in one, the more you risk becoming a non-person, and I'm not even touching on the risk of cross-using different kinds of data. If, for instance, it became your health card and your driver's licence card, with that information either electronically embedded on the card in microchips or being the key to unlock it in databases, which would have to somehow be joined also, how long do you suppose it would be before, for instance, the police would argue that when they pull a car over for whatever and demand to see the driver's licence, since they have it anyway, it only makes sense that they be allowed to also call up the individual's health information, just to see if they're under psychiatric treatment or on drugs or what have you? I assure you that it wouldn't take long, and there would be people who say, it only makes sense, and the public would expect us to do this, which is the argument one hears every time there's a pushing of one measure into other measures that are even more privacy-invasive.

    So a single combined card is a solution in search of a problem, in my humble opinion.

  (1235)  

    The Chair: Okay.

    Madeleine.

[Translation]

    Ms. Madeleine Dalphond-Guiral: Thank you, Mr. Chairman.

    Good morning, Commissioner. Since the beginning of the third millennium, it seems that people across the globe have become more paranoid. Everyone is suspicious of everyone else. Sometimes, we even become suspicious of our friends. This climate of paranoia has affected the developed world, particularly. Our American friends are very paranoid and they seem to interpret everything through the lens of paranoia.

    When the issue of the permanent residency card, which now exists, first came up, the committee had serious reservations about it. We were very clear on the fact that we did not want the card to contain any biometric data. The minister came before the committee to talk about the identity card; we may or may not end up with one. We may only get one in 20 or 30 years, but I won't be here anymore.

    In the current context, the hassles many our citizens must go through at the American border will not decrease. I was completely against the idea of including the place of birth on this card. However, this information is contained in our passports. I don't know if this is required under international law, because I'm not a legal expert. Do you think that the place of birth of Canadian citizens should not be included in our passports? That's my first question.

    You also talked about a figure of 3  to 5 billion. You need a huge budget to come up with those types of figures. I would like to know how you reached this estimate, because if we look at past experience, it should be in the order of 20 billion. No one really knows.

  (1240)  

    Mr. George Radwanski: In answer to your first question, I would say that when there were incidents where the Americans considered the place of birth contained in a passport, I did indeed make a recommendation to the Department of Foreign Affairs. I said that we should seriously consider removing the place of birth as indicated in passports. However, this recommendation was rejected out of hand. It was turned down and that was the end of the story.

    With regard to the costs, if you don't mind, I will answer in English, simply because I want to be accurate with the figures.

[English]

    I arrived at this figure two ways. First, in the United Kingdom, where they're looking at bringing in this entitlement card, the cost, as estimated by the government, would be about £1.5 billion, which would be roughly $4 billion Canadian. But that figure has been criticized by experts in the U.K. as far too low, because it doesn't take into account the cost of the network of biometric readers that would be necessary to make this a useful initiative. The best estimates I've heard in the U.K. are that the network of readers would double the cost, which would bring us to about the equivalent of $8 billion Canadian. Canada has roughly half the population of the U.K., so by a rough calculation, one would say $4 billion, except that the overhead costs aren't necessarily half. If you're going to create all this infrastructure, the technology, and so on, it may not be simply that half the population equals half the cost. So it could go up to $5 billion.

    Lest anyone think these figures are somehow fanciful, in 1999 HRDC reported to Parliament that an ID card system similar to the SIN, but with biometrics and all that would cost about $3.6 billion, and it was rejected on grounds of cost. Time has passed, and we know what happens to cost estimates like that once we encounter the reality of bringing in a completely new system. So my figure of $3 billion to $5 billion may be very conservative.

    The Chair: Libby.

    Ms. Libby Davies: Thank you very much.

    I'm very glad that you're here today, because I think you have made very substantial arguments as to why this national identity card should be rejected, because it's a complete invasion of privacy rights, but also, if that weren't an issue, even on grounds of efficiency and common sense--it doesn't work. I think you've really made the case. I actually think it's regrettable that we're going to continue this debate. I would agree with you.

  (1245)  

    The Chair: That's democracy, Libby.

    Ms. Libby Davies: But I think we've had a pretty strong reading from people, even the people who were asked at the end of testimony on something else and half-heartedly said, yes, maybe we'll look at it--that's the best response we've had.

    I would actually disagree with you on one point. You suggested that the minister put this forward for public debate and didn't take a position. Well, he didn't categorically, but I would suggest that given what he presented to the committee and what he's said since then, he's really peddling this idea. In fact, his presentation told us of all the good things that could come and really didn't focus at all on any of the problems. So it's just a slight disagreement with what you said there.

    One of the things I find really disturbing is that it's being promoted on the basis of convenience. This follows up my colleague's question: you have nothing to fear if you've done nothing wrong, this is a convenience, all this information in one place. I think that's particularly dangerous, because it's really a way of fooling people.

    If this system were adopted, there would be overt abuse by individual offices, for example, or state authorities, but it's the systematic abuse that begins to set in with collection of data, how the data begin to merge, and how the card can be used in a way that actually targets people, which I guess would be individual abuse. I don't know if you have any information on what happens with racial profiling, where it could be very much targeted at certain people in our society who are “under suspicion”, because of the way they look when they're pulled over by an officer, the way they act, and so on.

    Mr. George Radwanski: It's interesting that you raise that, because just last night I was in Fredericton delivering a lecture on the subject of privacy and racial discrimination. The point I made was that while privacy and racial discrimination on the face of it are two separate issues, one is privacy and the other is a human rights issue, they do converge, in the sense that when privacy is being invaded, it is the people who stand out, visible minorities particularly, who are targeted the most and whose privacy is most likely to be invaded.

    To give you one example, on the subject of police video surveillance of public streets, which is another issue that, as you may know, concerns me a great deal, I spoke with the leading experts in Great Britain, where they have more street video surveillance cameras than any other society in the western world. What their studies indicate is that when the police are sitting at these cameras, with which, of course, you can zoom in and follow people, they predominantly zoom in on visible minorities, the young, and the visibly poor. So who is most targeted for that kind of invasion of privacy? A poor, young member of a visible minority. Who is most likely to be targeted for losing their anonymity? Yes, visible minorities, although frankly, that's not a huge change from what exists now.

    When you speak of abuses of the system, there could be individual abuses of the kind you're describing, but my even bigger worry is systemic abuses. The term slippery slope is almost a cliché, but if you look at the evolution of these things, there are many examples I could give you, but I'll at least begin with the example of this card concept. As you know, there were some misgivings about the so-called maple leaf card, the card for landed immigrants. There were many discussions with my office on the subject. We were given assurances, first of all, that there would be no possibility, no thought of using this as a thin edge of the wedge to have a card for all Canadians. We were explicitly told that was not going to happen. The second thing we were told was that there was no contemplation of biometrics on this card. Now, of course, we hear about how the card is biometric-ready and they've engaged a firm in the U.S. to look at options, various kinds of biometric technologies that might be interesting.

    Another classic example I will raise, because it's important for the context in which this current government has operated recently on privacy matters, is the issue of the Canada Customs and Revenue Agency having access to detailed passenger information as part of the customs process. This was brought in under amendments to the Customs Act before September 11, and the specific undertaking we had in writing from the government, from CCRA, was that there would be no generalized retention of this information, it would be used only to identify people for secondary screening and then destroyed. Last summer I was informed that it is going to be kept in a six-year database, ostensibly for forensic anti-terrorist purposes, but it would also be available under the information sharing provisions of the Customs Act for an almost limitless range of other governmental purposes. I'm having no luck at all in trying to move them off that so far.

    So when we hear assurances that this card will only work this way and not that way, this won't happen, that won't happen, we have to take them with a grain of salt.

  (1250)  

    There's one thought I might add. Minister Coderre, when he spoke to the public policy forum on this thing, made the point, how can we say the police would be able to stop people on the street and demand the card? That's against the charter, it can't happen. Well, it's not that simple. First, it's not easy, as I've discovered, through obstructive efforts by government, to bring a charter challenge in this country. Second, the costs are enormous, and it takes a long time. Finally, who knows? If at some point the Criminal Code were amended, for example, to require people to produce their identity cards when demanded by legitimate state authorities, would that be found unconstitutional by the Supreme Court, or would it end up being found to be within what's reasonable in a free and democratic society, since there are other countries that do that? Who knows? The simple answer is, let's not open the door, let's not go down that path, let's not take the chance.

    The Chair: Okay.

    Massimo.

    Mr. Massimo Pacetti (Saint-Léonard—Saint-Michel, Lib.): Thank you, Mr. Chair.

    Mr. Radwanski, it was nice meeting you. Thank you for coming.

    My personal view up to this point has been generally in favour. I'm going to go against some of my colleagues. I like convenience. If this card can make my life easier, I'm for it. But some of your points are very valid. I think this is the reason we're going to have a debate on this. You say a lot of the people were against it. We had somebody in Montreal who also talked against the ID card. He said, if you make it voluntary, blah, blah, blah, but I think I'll probably end up getting one myself.

    You said this card would invade our privacy. We have that today. My colleague David already mentioned that with the credit cards there are traces, but we have more than that, we have the Internet. You can't tell me people don't know where we've been every time we log on. There are telephone records, calling cards, cellular phones, you name it, it's already out there. You're saying the government doesn't have access to our records. We file our tax records. We fill out forms for pensions, grants--that's all we ever do. So the information is already there.

    I agree with some of the points you have, but my question to you is, can we not use this card to make life easier?

    Mr. George Radwanski: As I said, I'm not sold on the assumption that it would make life easier. It could make life a devil of a lot more difficult if anything goes wrong with your card, if your identity, even with this card, is misappropriated, which I think is a real possibility, or if you lose the card. I'm not sure it necessarily would make life easier.

    Second, these things are seldom recommended by people who really want to do something obviously bad. What they're always saying is that privacy needs to be sacrificed on the altar of some greater good, convenience, security, efficiency, easier government, you name it. It's always some greater good, but if you keep whittling away a little here, a little there, always for a reasonable purpose, soon we'll have no privacy at all and the world of Big Brother will be upon us.

    When you say there's lots of information out there about us, our telephone records, for example, or where we go on the Internet, that's another battle I'm fighting as we speak. Right now the government can't get your telephone records or your Internet browsing activities without a warrant, and it has to have a pretty good reason to get the warrant. There's another thing that's been put forward by the Department of Justice and others called the lawful access initiative--what a name; I'd call it the awful access initiative if it were up to me--which would make it much easier for the government to obtain access to, for example, all your on-line activities, with whom you exchange e-mails, perhaps the content of those e-mails, every website you access, every page you open on that website. They can't do that now, and I'm fighting against facilitating that. The same thing is true of your credit card records or anything else. The government can't readily get at them.

    And there's a difference. Much as intrusion on privacy by the private sector is a concern--and the government has recognized the concern by passing this new private sector law to at least protect us more in our dealings with the private sector--it's even more worrisome if the public sector, the state, is able to track your movements, observe your movements, follow your transactions, and build comprehensive dossiers on you. That kind of thing has no place in a free and democratic society. I, for one, would put up with considerable inconvenience before I'd sacrifice my freedom.

  (1255)  

    The Chair: Can I, as a supplementary, just ask this one question? I know you're very enthusiastic and it's your job to protect privacy, but you keep talking about the bad government--and I have not made a decision on this. Bad government gets all this information, bad government will do this, bad government will do that, but how about the other dark side, which is those people who really might have some information on me, who do know where I spend my money, do know where I do this and do that? Shouldn't we be worried about that group and not the legitimate government getting information on all of us? Let's face it, anybody who thinks we have a lot of privacy is whistling in the wind. You can go outside in my garbage, you can get my DNA, you can find out everything you need to know about Joe Fontana, and it doesn't have to be government doing that, it could be anybody who wants to steal my identity or something. So I want you to address this whole notion. Why should Canadians worry about governments? How about the other dark side of society, all those other people who might want to take advantage of our privacy and of who we are?

    Mr. George Radwanski: One doesn't exclude the other, but let me be very clear, I am not speaking, on any of these issues, of bad government. We certainly have in this country a government that, on the whole, respects people, respects rights. Compared to most countries of the world, we are very fortunate with the kind of government we have. That has nothing to do, though, with the fact that it is not healthy in a free society for government to have too much information in a combined form on individuals. Part of the problem with that is that you never know who will be the government and how circumstances will change. It's one thing to say these are nice people, they wouldn't do this, that, or the other, but governments change, times change, information that is held about people and not used or used only benignly might be used in a very different way in a different scenario.

    You don't have to go very far to see examples in other countries, even democracies, the kind of behaviour, enemies lists and so on, which eventually led Richard Nixon to be impeached in the United States. Look at some of the behaviour of the FBI under J. Edgar Hoover, in Canada at a period when the RCMP got so out of control, not that long ago, that there had to be a royal commission. They were burning barns and doing Lord knows what else.

    One wants to protect basic rights, not because government is bad, but because in a free society government collects only the information it needs and only for the purposes for which it needs it. The Privacy Act that created my position and the Personal Information Protection and Electronic Documents Act that is now extending to the private sector are acts of Parliament. They are recognitions by Parliament of the importance of privacy, so I would urge everybody around this table, and I would certainly urge all Canadians, not to say privacy is going to hell in a handcart anyway, so what's the point of worrying about it? That's why we need to be more aware, and Canadians are becoming more aware, of the importance of privacy and protect ourselves.

    As to the bad people who collect information and so forth, that's why there is a regime of law that is increasingly going to work against it. If it's corporations misusing information, you've got the new private sector law. If you're talking about people going through your garbage, people can go to jail for that, in some areas anyway. If people misappropriate your identity, that's certainly a crime. To say we shouldn't countenance unnecessary invasions of our privacy by the state is not to say we should or do countenance them by others.

·  (1300)  

    The Chair: Okay.

    Sarkis.

    Mr. Sarkis Assadourian: Thank you very much.

    It's always a pleasure to hear from you, Mr. Radwanski.

    I agree with you that no amount of information will stop terrorism. We're talking about what kind of information we're going to have on that ID card. For your information, sir, I was in New York last week. We had a chance to meet with New York State anti-terrorism experts, including Governor Pataki. They mentioned that they liked the idea of ID cards. They also mentioned that most of the states bordering Canada are pursuing this idea, and they indicated to me, if I recall correctly, that they will be going to Washington to press for this. This is basically what the conversation was all about.

    Last year in October, I believe, the U.S. started fingerprinting Canadians born in certain countries, Iraq, Iran, Syria, Sudan, and Yemen, I believe. We had no choice but to follow that basically, because we happen to live next to a giant, like it or not, agree or don't agree, and these are the laws they make. They're a sovereign state. You want to go there, so you have to do it. Yesterday was the first day of Americans requesting visas for certain Commonwealth countries. Again, we had no say. If you want to go to the states, this is it. If you don't want to go to the states, stay where you are and be happy. What if the U.S. comes tomorrow, next month, next year and says, this is the ID card I need for you to visit my country? I don't care where you're coming from, if you want to come to my country, British, pure-blood Anglo-Saxon, French, Arab, whatever, you must have your fingerprints taken before you come. What would your advice be to Canadians trying to go to the States, to work, visit their families, or whatever?

    Mr. George Radwanski: Well, that's very simple, with all respect. The United States is a sovereign country, it can do what it wants. Canada is a sovereign country and we can do what we want in accordance with our values. Obviously, if the United States requires certain things, such as being fingerprinted, for entryto the U.S., every Canadian and every citizen of every other country in the world has the right to make the choice whether entering the U.S. is sufficiently desirable that they will submit to this. That's fine. That's fundamentally different from the Government of Canada fingerprinting, retina-scanning, or whatever every Canadian, even those who may have absolutely no wish to enter the U.S. Mr. Coderre's argument that we should do it to ourselves before the Americans do it to us is a very strange way of looking at rights. Let's deprive ourselves of our rights and let's deprive ourselves of elements of our dignity in Canada because the Americans might want Canadians to do that in order to come into the U.S. I don't buy that. I think they're two separate issues, quite frankly.

·  (1305)  

    Mr. Sarkis Assadourian: Thank you.

    The Chair: Thank you.

    Andrew.

    Mr. Andrew Telegdi: Thank you very much.

    I'm glad to have you here. There are other privacy commissioners I heard, two out west and yourself, and there wasn't one kind word among you for the idea of the national identity card.

    Hungary, where I was born, used to have a national compulsory identity card while they were a communist country, and once they left communism and became a democracy, they no longer had one. I just mention that to members of the committee, because if you want to look at some of the dangers inherent in giving up rights--and I look at it as the salami approach, a little slice at a time--you really get to what George Orwell talked about in Nineteen Eighty-Four--I guess it should have been 2004.

    One of the real dangers I see in buying into any system where somebody's looking for a panacea for security problems is that when you invest in a national ID card, as you mentioned, you spend a great deal of money doing that, but as soon as that is compromised, where are you? Imagine spending $5 billion on this kind of scheme, and then one of those sleepers gets into the United States using this ID card. The whole thing would be thrown out of whack and be totally useless. What would we do? It just doesn't make a whole lot of sense to me when you start looking at the various considerations.

    Benjamin Franklin I think said it best when he said those who would sacrifice freedom in the name of security deserve neither security nor freedom. Another American I'm going to quote is George Washington. He basically says that eternal vigilance is the price you pay for freedom. What that suggests to me is that you can't rely on any one single ID.

    And we have millions of people whose credit cards get swiped. I was notified the other day that my number is out there and I can go and get my number changed.

    I guess it's the danger of looking for that panacea. The world is never quite that simple. When you say you have nothing to hide and nothing to fear, well, we have a lot of people who have been wrongfully convicted for all sorts of stuff; presumably, they had nothing to hide and everything to fear.

    I commend you on your office and the job you're doing and urge you to carry out the mandate you are appointed to carry out.

    The Chair: That sounded like a paid political announcement to me, or a good infomercial for you, George.

    Mr. George Radwanski: They are certainly kind words, which I accept with appreciation. I must say I'm heartened, as we've gone around the table, by the sense that the concerns I have appear to be shared by a great many members of this committee.

    I must admit I am a little puzzled as to why this committee is going further afield to talk to Americans or Germans or whoever, there being no substantive supportive support for this idea in Canada. I'm not seeing a ton of substantive support for this idea around this table. I wish I weren't worried that this could somehow end up with government members, at least of this committee, being pressured by their government to find some good in an idea that has absolutely no discernible merit and turn into a set-up for moving this concept forward, rather than killing it in the egg.

·  (1310)  

    The Chair: Maybe I can answer that, and it may be a good way of wrapping it up, but I have a couple of questions.

    First, you may not know the personality of this committee as much as I do. We're an independent lot, including the ones on the Liberal side, so I'm not sure we're going to be used and coerced in a way that is not comfortable to us. It's unusual for a committee to be asked to have a debate on a particular public issue, a subject that's very important. It may very well be because of 9/11, it may very well be because we're on the verge of the world being at war, but there is a lot of anxiety out there and talk of security.

    It may very well be that we don't need a national ID system, but we also know and have heard there are problems with our foundation documents, there are problems occurring with regard to identity. There are issues we want to address with our American counterparts. I would agree with you totally that we are a sovereign country, and I'll be darned if we're going to introduce a national ID just because the Americans are asking us to do it. They don't even want one, and I want to ask how they can demand it of other countries--because I'm sure they are--when their own population has said no and they would not even entertain it. It is a great privacy issue, the Americans hold that dear, and so do we.

    So it's unusual for us to have a blank piece of paper, but I can tell you that as a result of our debate and wanting to know why other countries have adopted something or what kind of identity documents they are now using, we do have a problem with foundation documents. And it is important for us, in the pursuit of privacy, I would agree, George, that we do this.

    You're zealous about protecting privacy. At the political level we also have that other side, the balance, protecting all of society, not only from terrorists and so on, but from crime. That's what we're trying to understand. At what point do we talk convenience, at what point do we talk privacy, at what point do we have to look at security issues? Cameras are a perfect example. There is no doubt that while they have invaded privacy, they are having a positive impact on the reduction of crimes in downtown areas. So I have to ask myself, as a legislator, just as you said, at what point we sacrifice a little privacy for a greater good, less crime, a much more secure society, and so on. That's the tough decision we, as a committee, will have to make when the time comes to write our report.

    I'm wondering whether there isn't a benefit that needs to be considered. There is not only the privacy issue, on which I agree totally with you, but there is that other issue that needs to be taken into consideration in all the things we are doing, at least in this committee.

·  (1315)  

    Mr. George Radwanski: That's an excellent question, and I guess part of the answer is the four-part test that I raised earlier, to look exactly at that balance between security and privacy: necessity, effectiveness, proportionality, and lack of other alternatives.

    With regard to video surveillance cameras, since you brought it up, it's a subject on which I now know, I'm afraid, more than I ever wanted to. I would have to respectfully disagree with your comment that they reduce crime. I've talked to the leading experts from around the world on open street video surveillance, and there is simply no evidence that street video surveillance cameras reduce crime, rather than displacing it from where the cameras are to where the cameras are not. I'm particularly engaged on this issue in Kelowna, as you may know, where the RCMP put up a street video surveillance camera. At the height of the debate on this, a spokesman for the RCMP was quoted in the Vancouver Sun as explaining that video surveillance cameras would probably displace crime from downtown to residential areas, but this was a good thing, because homeowners were more likely to call the police if they saw a crime being committed. So you can get some pretty strange reasoning on this.

    I will also leave you with the following thought. London, England, has more street video surveillance cameras than any other city in the western world. In 2001, the last year for which statistics are clearly available, there were more street video surveillance cameras than in any previous year, and street crime went up 40%. I caution you to take with a grain of salt the conventional wisdom that street cameras operated by the police are such a benefit that they justify the intrusion on privacy.

    The Chair: I'm getting my information from the police chief.

    Mr. George Radwanski: There's your first problem.

    The Chair: Okay.

    George, thank you so much. As my colleagues have attested in the questions we've asked, we thank you very much for your forthright opinions and reference to the tests you've asked us to look at. As I said, we're just at the beginning of our debate. A national debate on certain issues I think is very healthy and important. Who knows what the conclusion might be, but at least we're giving Canadians an opportunity to say something. Recent national polling results have indicated that Canadians want and are not bothered by a national ID card.

    Mr. George Radwanski: Forgive me, sir, I just have to jump in.

    The Chair: I'll give you a copy of the survey.

    Mr. George Radwanski: I've seen it. May I jump in?

    The Chair: George, you're the one who said Canadians overwhelmingly don't support this. I'm only telling you Canadians have not been asked, other than in this national poll.

    Mr. George Radwanski: I've seen that poll, sir, and with all respect, it is riddled with flaws and is not going to prove anything.

    The Chair: That's why this committee wants to ask Canadians directly. We're asking them to give us their input, as you are.

    Thank you so much. Take care.