A newly published agreement on how information will be handled under the Canada-U.S. security pact means personal details about Canadians could be sent to a country with a poor human rights record, said Chantal Bernier, assistant privacy commissioner.
The principle on sharing information — included in a 12-point Canada-U.S. privacy charter made public Thursday — falls short of the standard recommended by the federal commission of inquiry that examined the Maher Arar torture case, Bernier said in an interview.
"We were hoping for greater control for Canada on the personal information it holds."
Bernier said the principles contain some fundamental building blocks of good privacy practice, including the right to see and verify the personal information governments hold, the right to seek correction or redress, and safeguards to ensure data doesn't fall into the wrong hands.
But she expressed concern that the privacy principles are non-binding.
"Considering that privacy is a fundamental human right, one would expect that a statement of privacy principles would be binding," she said. "So the fact that it's not begs the question of the purpose of the statement."
Canada and the U.S. promised that a charter of privacy principles would be part of the deal reached last year to help smooth the passage of travellers and cargo across the border while beefing up continental security.
The most contentious element of the deal could be a plan to exchange entry information collected from all persons at the border, which would serve as a record of exit from the other country.
The privacy charter's preamble says greater information sharing between Canada and the U.S. is vital to protecting security, and that domestic and international laws will apply to management of personal information.
The principles say Canada or the United States may transfer information received from the other to a third country.
For instance, the U.S. could send information received from Canada to an overseas capital. However, it could do so only if American law permitted the exchange. And the transfer must be done in accordance with relevant international agreements and arrangements.
In the absence of such "international agreements and arrangements," the U.S. must inform Canada prior to the transfer, or "as soon as reasonably possible" afterward in urgent circumstances.
Bernier worries that all Washington has to do is tell Canada it's passing along the information in such cases.
"Canada could not stop the U.S. from transferring personal information about a Canadian to a country with a questionable human rights record," she said.
"We were hoping that in fact, more than notification, there could be a right of refusal, even."
Julie Carmichael, a spokeswoman for Public Safety Minister Vic Toews, said the principles provide increased protection for Canadians' privacy. They contain stronger protections than any existing international agreements, and "they state very clearly that Canada is to be notified anytime information is shared," she said.
A federal inquiry by Justice Dennis O'Connor into the Arar case made numerous recommendations in 2006 aimed at ensuring the proper handling and sharing of security information.
Arar, a Syrian-born Canadian, was detained in New York in September 2002 and deported soon after by U.S. authorities — winding up in a Damascus prison. Under torture, he gave false confessions to Syrian military intelligence officers about involvement with al-Qaida.
O'Connor concluded that inaccurate information the RCMP passed to the United States very likely led to the Ottawa engineer's year-long nightmare.
The judge said the RCMP and other agencies should attach caveats to information they share to ensure there are proper restrictions on its use by receiving parties.
A subsequent inquiry headed by former Supreme Court judge Frank Iacobucci into the imprisonment of three other Arab-Canadian men during the same post-9-11 period found Canadian officials had a hand in the torture of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin in Syria through the sharing of information with foreign intelligence and police agencies.
The new Canada-U.S. privacy charter "keeps the door wide open" to the kind of practices that led to the ordeals of the four men, said Roch Tasse, national co-ordinator of the Ottawa-based International Civil Liberties Monitoring Group.