October 30, 2001
The Honourable Anne McLellan
Minister of Justice and Attorney General of Canada
Justice Building
284 Wellington Street, 4th Floor
Ottawa, Ontario
K1A 0H8
Dear Minister McLellan:
RE: Anti-Terrorism Act (Bill C-36)
The tragic events in the United States on September 11, 2001 brought
into sharp focus the need to examine closely, in an expeditious manner,
all measures available to protect the safety and security of Canadians.
While acknowledging that need, I am writing to add my voice to those of
other Canadian Information and Privacy Commissioners in expressing
concerns about certain aspects of Bill C-36.
In the interest of public safety, this Bill proposes significant changes
to the current access and privacy rights of Canadians. At the heart of my
concerns is the question of whether the proposed changes are both
justified and necessary. Specifically, my concerns relate to three broad
areas: 1) expansion of surveillance capabilities, 2) reduction of
independent oversight, and 3) the absence of a sunset clause.
Expansion of Surveillance Capabilities
Bill C-36 will result in an extraordinary expansion of law enforcement
agencies' surveillance capabilities. It is my belief that such an
expansion should only be considered if it has been demonstrated that the
full deployment of existing powers and investigative tools is insufficient
and ineffective in combating terrorism.
I am particularly concerned that the Bill's broad definition of
terrorism creates the potential for the ongoing monitoring of legitimate
activities by Canadians. Bill C-36 greatly expands the ability for law
enforcement agencies to intercept the daily communications of potentially
all Canadians, without a warrant. In our desire to ensure the safety and
security of Canadians, we must be careful not to cast the net too broadly.
It is my view that, as currently worded, Bill C-36 does just that by
creating the potential for innocent parties to be subject to surveillance
without sufficient justification.
Reduction of Independent Oversight
The proposed changes to the National Defence Act and Criminal
Code, in particular, would result in a significant reduction of the
procedural and judicial controls on electronic surveillance and
wiretapping. For example, Bill C-36 reduces the requirement for law
enforcement agencies to justify the need for such measures in an
application to a judge. There is no longer a need to demonstrate that
resorting to a wiretap is the last resort, having exhausted all
other investigative techniques. I believe that such justification
continues to be necessary in order to ensure proper judicial supervision
and oversight.
Further, Bill C-36 erodes the public's access and privacy rights, as
established under the Access to Information Act, the Privacy
Act, and the Personal Information Protection and Electronic
Documents Act, by empowering the Attorney General to issue a
certificate prohibiting the disclosure of certain information - both
general records and personal information. As such, certificates would not
be subject to the Statutory Instruments Act; even the very
existence of the certificate would be secret.
It also should be noted that current
access and privacy legislation already has exemptions and strong
protections for information relating to law enforcement and national
security activities. Bill C-36 unnecessarily eliminates the independent
oversight provided by the Information Commissioner and the Privacy
Commissioner that has proven so effective in properly focussing law
enforcement and national security exemptions.
To address the above concerns, I recommend
the following amendments to Bill C-36:
- Certificates, if considered truly necessary, should be:
- issued by Cabinet, rather than the Attorney General alone;
- subject to review by the Information Commissioner and the Privacy
Commissioner, respectively, as well as the federal court; and
- time limited.
- The Communications Security Establishment should be designated as an
agency under the Access to Information Act and the Privacy
Act, thereby making access and privacy matters subject to the
independent oversight of the Information Commissioner and the Privacy
Commissioner, comparable to other law enforcement and intelligence
agencies such as CSIS and the RCMP.
Absence of a Sunset Clause
Finally, I am gravely concerned that Bill C-36 does not have a sunset
clause. I believe such a provision is absolutely necessary in order to
ensure that measures brought in as an immediate response to extraordinary
circumstances are, in fact, necessary to the ongoing protection of
Canadian society.
I also know from personal experience that a three-year review of the law
does not guarantee an appropriate government response thereafter. For
example, there was no government action after the three-year reviews of
Ontario's Freedom of Information and Protection of Privacy Act and Municipal Freedom of Information and Protection of Privacy Act.
It is interesting to note that the comparable Anti-terrorism Bill,
recently passed in the United States, does indeed contain a sunset clause.
The inclusion of a sunset clause is the most effective way to ensure that
Parliament will carefully consider the demonstrated effectiveness and
continued necessity of the wide-ranging powers afforded to law enforcement
and national security agencies under Bill C-36.
Conclusion
I believe that Bill C-36 unnecessarily diminishes the access and privacy
rights of Canadians. The public's right of access is essential to the
preservation of our democracy as it helps to ensure accountable
government. Privacy is a fundamental human right that is essential to
human dignity and autonomy. While it is not an absolute right, in many
ways it is the underlying and enabling component of other rights protected
by our Charter of Rights and Freedoms. Any steps to reduce our
access and privacy rights must be done in a manner that does not undermine
the democratic traditions of our country. To do otherwise, would defeat
the purpose of fighting to preserve the values we hold dear.
Accordingly, I strongly urge you to re-examine the scope of Bill C-36 in
order to more appropriately balance the access and privacy rights of
Canadians with the very real need to fight terrorism.
Sincerely yours,
Ann Cavoukian, Ph.D.
Commissioner
cc: The Honourable John Reid, P.C., Information Commissioner of Canada
Mr. George Radwanski, Privacy Commissioner of Canada
Mr. Andy Scott, Chair, Standing Committee on Justice and Human Rights
Ms. Joyce Fairbairn, Chair, Special Senate Committee on the Subject
Matter of Bill C-36 |