The Honourable Elinor Caplan
Minister of National Revenue
555 Mackenzie Avenue
Ottawa, Ontario
K1O 0L5

Dear Minister Caplan:

I would like to take this opportunity to respond to comments you made on the CBC radio show “The Current” on January 28, 2003. In particular, I would like to respond to the inaccurate portrayal of my position and statements.

On the show, you discussed Bill C-17, and dismissed the views of Privacy Commissioners, including the federal Privacy Commissioner and myself, that the Canada Customs and Revenue Agency (CCRA) database on foreign travel activities represents a genuine and unprecedented threat to the privacy of Canadians.

You express your regret that I refused a full briefing on this matter. This is simply not true. Staff of your ministry provided my office with briefing material on this issue, which was reviewed in detail. At no time did I, or my staff, indicate that we would not meet, quite the contrary. Be assured that I have always been prepared to personally meet with you to discuss this matter, and remain willing to do so.

You stated that some of my comments were inaccurate. For example, you refuted my suggestion that the CCRA database could be used for purposes unrelated to fighting terrorism by pointing to guidelines and audit procedures that are under development. However, this disregards the fact that the Customs Act provides for the sharing of information in this database, not only for a range of specific purposes but also for some very broadly stated purposes. For example, information can be provided to any person legally entitled to the information by reason of an Act of Parliament, to any prescribed persons for any prescribed purposes, and to any person for any purpose where the Minister deems the disclosure to be in the public interest. These provisions are so broad as to render the CCRA database available for a wide array of uses unrelated to anti-terrorist activities. The federal Privacy Commissioner has repeatedly asked you to limit the use of this database to anti-terrorist purposes by strictly exempting it from the normal information-sharing provisions of the Customs Act. My understanding is that you have refused to do so.

You stated that the customs enforcement database has always been held for six years and that the complaint of Privacy Commissioners that this is unprecedented is based on a misunderstanding. This is not the point of our objections. The initiative undertaken by the government will bring a mass of new information into the CCRA database. The vast majority of this information will relate to the travel activities of law-abiding Canadians. It is the retention of this information for a six-year period that is objectionable. It remains unrefuted that the federal Privacy Commissioner received a written undertaking from the CCRA that, except in those relatively few instances where API/PNR information caused an individual to be identified for secondary screening, it would be destroyed within 24 hours. Only later were Canadians informed that all API/PNR data about Canadian travellers would be kept for six years. It is the inclusion of this data in the database, and its retention for six years, that is our chief concern.

In the interview, you stated that Canadians should be assured by the guidelines you are drafting that the CCRA database will not be misused and that government actions will be within the confines of the Charter. The government has received three separate independent legal opinions from respected legal authorities: Justice La Forest, former Deputy Minister of Justice, Roger Tassé, and the Honourable Marc Lalonde. All three state that the CCRA database clearly appears to be in violation of the Canadian Charter of Rights and Freedoms. Legal opinions refuting this view have not been forthcoming. I would also note that relying on guidelines is similar to relying on the undertaking of the CCRA that, except in limited circumstances, API/PNR information would be destroyed within 24 hours. Guidelines, like the undertaking, may be changed at any time, without Parliamentary scrutiny.

Aside from setting the record straight, I would like to use this opportunity to suggest that it is not too late to find privacy respectful solutions to the security challenges facing the government. To date, much of the discussion has been characterized by rhetoric and has been played out in the media. However, these issues are too important for Canadians and the future shape of our society to leave workable solutions unexplored. Through hard work and dialogue, the safety and security of Canadians can be addressed without the threat of routine tracking and surveillance by the government. Please be assured that I continue to be prepared to play a role in this vital work. As mentioned earlier, it would be my pleasure to meet with you personally, at your earliest convenience. I look forward to hearing from you.

Sincerely yours,

Ann Cavoukian, Ph.D.
Commissioner