Comments on Bill C-17, "Public Safety Act",

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COMMENTS OF THE CANADIAN COUNCIL FOR REFUGEES ON BILL C-17, "Public Safety Act" 11 February 2003

 

Introduction

The Canadian Council for Refugees is an umbrella organization committed to the protection of refugees in Canada and around the world and to the settlement in Canada of refugees and immigrants. About 180 organizations from across Canada are members of the CCR. We seek full respect for the human rights of newcomers and the successful integration of refugees and immigrants into Canadian society.
 

The CCR is a member of the International Civil Liberties Monitoring Group and we support that group's brief on Bill C-17. This submission is to highlight our particular concerns relating to some provisions of the bill that affect refugees and immigrants in particular.
 

Concerns

A significant proportion of refugees and immigrants in Canada have previously lived in countries where personal privacy was not respected by the government. Canada's tradition of respect for civil liberties, including privacy, is to many newcomers one of our country's most welcome strengths. The erosion of that tradition, signalled by Bill C-17, will reawaken unpleasant memories of life in a society where the interests of the individual have little or no weight.
 

Refugees and immigrants who are Arab, Muslim or South Asian know that measures stripping away privacy rights are aimed at them. They are the ones most likely to be innocent victims of the most serious consequences of breaches of privacy.
 

Refugees and immigrants have particular reasons to fear disclosure of their personal information to foreign governments. They have connections abroad that may make information about them of more interest to foreign governments than information about the average Canadian born in Canada.
 

Refugees especially need and have the right to expect protection from the Canadian government. They have been given protection in Canada because of persecution in their country of origin. Handing over information about them to the wrong people may expose them or family members to danger.
 

Disclosure of immigration information

Refugees and immigrants are clearly the people directly affected by Bill C-17's proposed amendments relating to disclosure of information held by Citizenship and Immigration Canada.
 

Bill C-17 does not tell us what information will be released, to whom or in what circumstances, and it is this that is the most disturbing. The bill takes the decision-making power about these questions out of the hands of Parliament and passes it to the Cabinet or the Minister. It raises serious questions about what current or future governments might decide to do with the personal information of immigrants and refugees, without any requirment for Parliamentary approval.
 

The relevant sections are as follows.
 

Part 5 of the bill contains an amendment of section 5 of the Department of Citizenship and Immigration Act, which currently reads:
 

5. The Minister, with the approval of the Governor in Council, may enter into agreements with any province, group of provinces or with any foreign government or international organization, for the purpose of facilitating the formulation, coordination and implementation of policies and programs for which the Minister is responsible.
 

The new text, proposed in Bill C-17, is:
 

5. (1) The Minister, with the approval of the Governor in Council, may enter into agreements with any province or group of provinces or with any foreign government or international organization, for the purpose of facilitating the formulation, coordination and implementation - including the collection, use and disclosure of information - of policies and programs for which the Minister is responsible.
 

(2) The Minister may enter into arrangements with any province or group of provinces or with any foreign government or international organization, for the purpose of facilitating the formulation, coordination and implementation - including the collection, use and disclosure of information - of policies and programs for which the Minister is responsible.
 

Part 11 of Bill C-17 contains a proposal for adding a section to the Immigration and Refugee Protection Act.
 

150.1 (1) The regulations may provide for any matter relating to
 

(a) the collection, retention, disposal and disclosure of information for the purposes of this Act; and
 

(b) the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act.
 

(2) Regulations made under subsection (1) may include conditions under which the collection, retention, disposal and disclosure may be made.
 

What these new provisions do is dramatically expand government powers to decide what information it will collect, store and disclose. The amendment to the Department of Citizenship and Immigration Act specifies that agreements with foreign governments may be for the purpose of "the collection, use and disclosure of information." Under the Privacy Act, the government has the power to make such agreements, but only "for the purpose of administering or enforcing any law or carrying out a lawful investigation". Under Bill C-17, agreements can be "for the purpose of facilitating the formulation, coordination and implementation - including the collection, use and disclosure of information - of policies and programs for which the Minister is responsible." This is a much broader purpose: in fact it would seem that almost any purpose the Minister might have could be covered under this rubric. Bill C-17 also provides for a new power to make "arrangements" to do the same things, on the authority of the Minister alone. This raises the question of whether the Minister might choose to do unilaterally by "arrangement" what the Cabinet would not agree to do by "agreement."
 

The amendment to the Immigration and Refugee Protection Act gives the government the power to make regulations about the collection, retention and disclosure of information. This may seem on the face of it innocuous. However, without the power to make regulations on this topic, personal information held by Citizenship and Immigration Canada can only be disclosed in accordance with the Privacy Act. Once regulations are made, the Privacy Act is effectively bypassed, because that Act authorizes the disclosure of information "for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure" (s. 8(2)(b)).
 

The Canadian Council for Refugees has recently seen how this works in practice. For some time, the Immigration and Refugee Board was disclosing personal information from one claimant's file to another claimant for use in the determination of that second claim. This was challenged in the Federal Court, which ruled that the Privacy Act did not permit such a disclosure of personal information (AB v. Canada (Minister of Citizenship and Immigration) (T.D.), 2002 FCT 471, April 2002). A few months later, the Refugee Protection Division Rules came into force, containing the following:
 

S. 17(1) Subject to subsection 4, the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of the claimant's claim.
 

What was illegal because contrary to the Privacy Act became legal because there was now a rule adopted by Cabinet saying that a claimant's personal information can be disclosed to another claimant.
 

Of particular concern is 150.1 (1)(b) permitting "the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act." The section offers nothing to protect the interests of refugees and immigrants whose personal information may be disclosed. For refugees in particular, the prospect of personal information being traded away is particularly alarming. What guarantee is there that Cabinet might not at some future date decide that the "conduct of international affairs" included the necessity of sharing personal details about refugees in Canada with foreign governments?
 

Conclusion

The Canadian Council for Refugees recommends that the amendments to the Department of Citizenship and Immigration Act and the Immigration and Refugee Protection Act be deleted. In the alternative, Bill C-17 should be amended to ensure that strong protections of the privacy rights of individuals are included in any agreements or arrangements made under the Department of Citizenship and Immigration Act and in any provisions relating to collection, retention, storing and disclosure of information under the Immigration and Refugee Protection Act.
 

The Canadian Council for Refugees also recommends that the committee studying Bill C-17 make radical changes to the bill as a whole, to take full account of the very serious privacy concerns raised by the International Civil Liberties Monitoring Group as well as by the Privacy Commissioner.

Feb 2003