Bill 85 – Photo Card Act 2008 (Ontario) Enhanced Driver’s Licence/Photo Identification

Update:

The short name for this latest piece of legislation is the Photo Card Act 2008.  It was assented to November 27, 2008 and became law.

It is amazing what happens when Corporations and Governments (and their current programs – ie- The U.S.A. Department of Homeland Security) form partnerships and begin to make plans for the citizens of those particular countries.  It was America’s Homeland security, along with the Smartcard industry, which decided that enhanced drivers licences and photo cards, be imbedded with a radio frequency identification (RFID) tag, which would carry within it, confidential and private information (biometric information) about the person holding it.  These RFID tags contain no authenication or security features. These RFID tags are not encrypted, are not secure and these tags are always active (they cannot be turned off or disabled) and can be “read” at great distances (10 metres or 32.808 feet) by cheap commerical devices.  In theory, anyone, anywhere (not at the border), who possess this easily accessible cheap commercial devices, that can read the RFID tags, could instantly download your biometric information without your knowledge or consent.

On the surface, this technology appears harmless, especially to those who appreciate the convenience of easily crossing the border while travelling to and from the United States. Travellers should be aware that these enhanced driver’s licences and photo identification cards will only be accepted at the borders if you are travelling by surface or water, not while flying into or out of the U.S.A. If you are flying in or out of the United States, you will be required to produce your Passport. The Privacy Commissioners (Federally, Provincially and Territorially) recognize the long term consequences arising from this unnecessary technology, which could have the potential or threat of “surreptitious location tracking” of individuals or mass surveillance of the population.

Civil Libertarians on both sides of the border have expressed serious reservations about this latest move by the governments. Canadian’s have expressed their reservations with respect to this technology.

Ontario’s Photo Card Act will allow for the creation of the enhanced drivers licences and a new photo card, which will have embedded within them, the radio frequency tags, that will be “scanned” at the Border, which will transmit a number that identifies the individual traveller, allowing the border guard to call up all of that individual’s personal information on a screen.

Ontario’s rush to create these enhanced, embedded cards, comes roughly seven (7) months before Washington’s Western Hemisphere Travel Initiative, is implemented in June, 2009 when all travellers entering the United States of America must have a passport or other secure documentation confirming citizenship and identity.

Originally the plan was for Canada’s Federal Government to allow the United States to house a “database” of personal and confidential information with respect to Canadians who possess special driver’s licences.  After the federal and provincial privacy and information commissioners publicly criticized this plan and the warned that their could be abuse of this sensitive and confidential information, Harper and crew abandoned this idea.

The Federal Privacy Commissioner, Ms. Jennifer Stoddart remains concerned about sharing confidential and sensitive information contained on the “enhanced” driver’s licences with the United States and her position is that the Passport is still the ideal travel document for Canadians. The Passport has always been the gold standard when it comes to identification for a traveller and will be required for anyone who flies in or out of the United States and the enhanced driver’s licence or photo identification will not be accepted as an alternative form of identification for that purpose. Transport Canada released its “Transportation in Canada -2007- An Overview” Report in May 2008 (see page 15 of the Report) which stated that “Car traffic at Canada-U.S. border crossings in 2007 was 3.2% lower than in 2006 at 12 of the 20 largest crossings and the seven (7) largest crossings had lower volumes”.

A Privacy Impact Assessment was conducted by the Canada Border Services Agency (CBSA) and they admitted the plan was to transfer encrypted Compact Disc’s (CDs)containing the name, gender, birth date, citizenship and photo of enrolled drivers to the United States Customs and Border Protection Service.

Under a Memorandum of Understanding, CBSA would have a commitment from the United States that “appropriate auditing mechanisms” would be implemented and that the information contained on the CDs, would only be used by the American’s for cross-border purposes.

The legal problem arises when the information is release from a Canadian agency (ie-CBSA) into the hands of an American agency (ie- U.S. Customs and Broder Protection Service), when the information is possessed by the U.S. Canadian’s confidential and personal information would be subject to American laws and not Canadian Law or Canadian Privacy Rights.  Unlike Canada, the U.S. does not have any Privacy Commissioners and when issues arise that related to damage caused by the leaking of personal information, the only place to resolve these issues are in American Courts, within the American judicial system and laws. The United States contracts out or outsources alot of traditional government work and there exists a real and likely probability, that private companies would end up possessing sensitive, private and confidential information about Canadians.  Canadians and their personal and confidential information would at risk.

The CBSA has now changed its original tune and has announced that the database (which they were going to download on CDs and give to the Americans) will be housed and properly safeguarded by the CBSA in Canada!

When a Memorandum of Understanding is finalized between the CBSA and U.S. Customs is should be made public for everyone on both sides of the border to be made aware of the legal language and agreement.

British Columbia was the first province, in January 2008, to create the “enhanced” driver’s licence and enhanced photo identification cards and treated it as a pilot project, offering 800 enhanced driver’s licences.  British Columbia has conducted this pilot project in an effort to test out the “enhanced licence’s”. Ontario is the second province to implement the enhanced driver’s licence and enhanced photo identification.  Several other Provinces (from east to west: Nova Scotia, Quebec, Manitoba & Saskatchewan) have expressed their interest in doing the same and others will soon follow.

The Federal Privacy Commissioner, Ms. Jennifer Stoddart, says that the electronic tags in these new cards should only be readable at close range, not the current contemplated 32+ feet.  She is concerned that at the distance of 32 feet, skimming of information from the card could occur or surreptitious reading of the radio frequency identification tag is possible.

British Columbia’s answer to this concern, put “protective sleeves” around the card to limit the range of frequency being emitted from the card. There is no evidence as to whether this works or does not work, or whether the sleeve can be counted on to act as a reliable shield.

This is some of the language of the Bill 85 – the Photo Card Act:

Issuance and Use of Photo Cards

Issuance of photo cards to non-drivers

Basic photo cards

3. (1)  After the phasing-in period, the Minister may issue a basic photo card to an individual who,

(a) submits an application for the photo card in accordance with the regulations;

(b) is a resident of Ontario;

(c) does not hold a valid driver’s licence; and

(d) meets any other requirements that may be prescribed.

Enhanced photo cards

(2)  After the phasing-in period, the Minister may issue an enhanced photo card to an individual who,

(a) submits an application for the photo card in accordance with the regulations;

(b) is a resident of Ontario;

(c) does not hold a valid driver’s licence;

(d) satisfies the Minister that he or she is a Canadian citizen; and

(e) meets any other requirements that may be prescribed.

Issuance of combined photo card to drivers

4. (1)  During and after the phasing-in period, the Minister may issue a combined photo card to an individual who,

(a) submits an application for the photo card in accordance with the regulations;

(b) is a resident of Ontario;

(c) holds a valid driver’s licence;

(d) satisfies the Minister that he or she is a Canadian citizen; and

(e) meets any other requirements that may be prescribed.

Surrender of driver’s licence

(2)  A combined photo card shall not be issued to an applicant until he or she surrenders his or her driver’s licence.

Combined photo card is also driver’s licence

(3)  A combined photo card issued under subsection (1) is also the holder’s driver’s licence for all purposes and the holder shall be issued one combined photo card that constitutes his or her enhanced photo card and driver’s licence.

Combined photo card ceases to be valid if driver’s licence ceases to be valid

(4)  If a combined photo card holder’s driver’s licence ceases to be valid for any reason, the combined photo card issued to him or her also ceases to be valid and is cancelled.

Same, combined photo card does not regain validity

(5)  A combined photo card does not become valid again upon reinstatement of the holder’s driver’s licence; the driver’s licence holder must apply for a new photo card if he or she wishes to be issued one.

Photograph requirement

5. The Minister may require an applicant for the issuance or renewal of a photo card to submit to being photographed by equipment provided by the Ministry.

Photo card, distinguishing physical feature

6. The Minister shall ensure that each photo card contains a distinguishing physical feature such that an individual, particularly a visually impaired individual, can readily locate the card and distinguish it from other cards that the individual may be carrying.

Photo-comparison technology

7. (1)  The Minister may use photo-comparison technology to compare the photographs taken of any applicants for or holders of a photo card or driver’s licence.

Not admissible

(2)  The photo-comparison technology used by the Minister, the methodology used to compare photographs and the measurements and results used for comparison are not admissible in evidence for any purpose and cannot be required for production in a civil proceeding before a court or tribunal.

Definition

(3)  In this section,

“photo-comparison technology” means a software application that measures the characteristics of a person’s face in a photograph and compares the results of that measurement with those of other photographs.

Fees

8. The Minister,

(a) may require that applicants for and holders of photo cards pay a fee to the Minister or to a person who provides any service for the Minister for anything done or provided by or on behalf of the Minister under this Act; and

(b) may require different fees for different classes of applicants and holders, for basic photo cards, enhanced photo cards and combined photo cards and for different circumstances.

Voluntary use of photo card

9. (1)  The holder of a photo card may, in his or her discretion, present it in any transaction or circumstance, including any transaction or circumstance where the holder wishes to identify himself or herself.

No requirement to have or use photo card

(2)  However, a photo card is issued solely for the convenience of the holder of the photo card and there is no requirement under this or any other Act that an individual obtain or carry a photo card or that a photo card be presented or accepted.

Exception, combined photo card

(3)  Despite subsections (1) and (2), a provision of the Highway Traffic Act or any other Act imposing a duty on the holders of drivers’ licences, including a requirement to carry, present, surrender or return a driver’s licence, applies to the holder of a combined photo card as if the combined photo card were a driver’s licence.

Cancellation of photo card

10. (1)  The Minister may cancel a photo card if,

(a) the Minister is satisfied that the photo card was used in the commission of an offence under section 13 or 15;

(b) the Minister is satisfied that the holder of the photo card committed an offence under section 13, 14 or 15;

(c) the Minister is satisfied that any information provided by the holder of a photo card under this Act is false;

(d) the Minister is satisfied that any information appearing on the photo card is incorrect; or

(e) the payment of a fee in respect of the photo card is dishonoured.

Same

(2)  The Minister may also cancel a photo card if the Minister is of the opinion that it is necessary to do so to ensure that the photo card is not used improperly, and in any circumstance that may be prescribed.

Return of photo card

11. (1)  The Minister may require the return of a photo card that was cancelled under subsection 4 (4) or section 10 from the holder of the photo card or other person in possession of the photo card.

Same

(2)  A person who is required by the Minister to return a photo card shall return the photo card as specified by the Minister.

Collection and Disclosure of Information

Collection and disclosure of information

Collection by Minister

12. (1)  The Minister may request and collect information from any public body or related government, as he or she considers appropriate, if the Minister considers it necessary for a purpose set out in subsection (5).

Disclosure by Minister

(2)  The Minister may disclose information to any public body or related government, as he or she considers appropriate, if the Minister considers it necessary for a purpose set out in subsection (5).

Disclosure to Minister

(3)  Upon receipt of a request for information from the Minister under subsection (1), a public body shall disclose to the Minister any information from their records that may assist the Minister with a purpose set out in subsection (5).

Exception

(4)  The Minister may not disclose under subsection (2) the measurements used for comparison of photographs as described in section 7.

Purposes for collection and disclosure of information

(5)  The only purposes for which information may be collected or disclosed under this section are the following:

1. To verify the accuracy of any information provided under this Act by an applicant for or holder of a photo card.

2. To verify the authenticity of any document provided under this Act by an applicant for or holder of a photo card.

3. To detect a false statement in any document provided under this Act by any person.

4. To detect or prevent the improper use of a photo card.

5. To detect or prevent the improper issuance or renewal of a photo card, including by conducting an audit or review of any issuance, renewal or cancellation of a photo card or the conduct of any person or entity involved in issuing, renewing or cancelling a photo card.

6. To provide the Canada Border Services Agency or the Department of Citizenship and Immigration, or the successor to either of them, with information and records regarding the issuance, renewal or cancellation of an enhanced photo card or a combined photo card.

7. To provide a public body or related government with the information that the Minister believes is necessary to assist it with a purpose similar to a purpose set out in paragraph 1, 2, 3 or 4 if the holder of a photo card has presented his or her photo card in order to obtain a benefit or service under a legislatively authorized program or service administered or provided by that public body or related government.

Deemed compliance with privacy legislation

(6)  Any disclosure of information under this section is deemed to be in compliance with clause 42 (1) (e) of the Freedom of Information and Protection of Privacy Act and clause 32 (e) of the Municipal Freedom of Information and Protection of Privacy Act.

Notice under privacy legislation

(7)  Any collection by a public body of personal information, as defined in the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act, disclosed to the public body under this section is exempt from the application of subsection 39 (2) of the Freedom of Information and Protection of Privacy Act and subsection 29 (2) of the Municipal Freedom of Information and Protection of Privacy Act.

Otherwise authorized collection or disclosure

(8)  The authority to collect and disclose information under this section is in addition to any other authority under this or any other Act for the Ministry to collect and disclose information.

Offences

Offences re possession and use of photo card

13. (1)  No person shall,

(a) have in his or her possession a fictitious, imitation, altered or fraudulently obtained photo card;

(b) lend his or her photo card to another person to be used contrary to clause (c) or permit such use of the photo card by another person;

(c) represent as his or her own a photo card not issued to him or her; or

(d) apply for, secure or retain in his or her possession more than one photo card.

Same, while holding a driver’s licence

(2)  No person who holds a valid driver’s licence shall apply for, secure or retain in his or her possession a photo card other than a combined photo card.

Seizure of photo card

(3)  Where a police officer has reason to believe that a person has a photo card in his or her possession or is using a photo card in contravention of clause (1) (a), (b), (c) or (d) or subsection (2), the police officer may take possession of the photo card and, where the officer does so, he or she shall forward the photo card to the Minister upon disposition of the case.

Penalty

(4)  Every person who contravenes clause (1) (a), (b), (c) or (d) or subsection (2) is guilty of an offence and on conviction is liable to a fine of not less than $100 and not more than $20,000.

Offence re false statement, inaccurate information

14. (1)  Every person who submits a false or inaccurate document, makes a false statement or includes inaccurate information in or with a written or electronic application, declaration, affidavit or other document required by the Ministry or under this Act is guilty of an offence and on conviction, in addition to any other penalty or punishment to which the person may be liable, is liable to a fine of not less than $400 and not more than $20,000 or to imprisonment for a term of not more than six months, or to both.

Defence

(2)  A person is not guilty of an offence under subsection (1) if the person exercised all reasonable care to avoid submitting a false or inaccurate document or making a false statement or including inaccurate information.

Limitation

(3)  No proceeding for an offence under this section shall be instituted more than six years after the facts on which the proceeding is based are alleged to have occurred.

Other offences

15. Every person who contravenes or fails to comply with subsection 11 (2) or a regulation is guilty of an offence and on conviction is liable to a fine of not less than $100 and not more than $20,000.

Administrative Matters

Powers and duties of Ministry

16. Where by this Act powers are conferred or duties are imposed upon the Ministry, the powers may be exercised by the Minister and the duties discharged by the Minister.

Delegation of powers

17. (1)  The Minister may authorize the deputy minister of the Ministry, one or more employees in the Ministry or in any other ministry or any other person or persons to exercise any or all of the powers and duties of the Minister under this Act, and where a power or duty is delegated to more than one person, any one of them may exercise that power or duty.

Delegate may retain portion of fee

(2)  Despite section 2 of the Financial Administration Act, any person who issues or renews photo cards or provides any service for the Minister or his or her delegate relating to photo cards pursuant to an agreement with the Minister or delegate, as the case may be, may retain, from the fee paid, the amount that is approved by the Minister from time to time.

Forms

18. The Minister may require that forms approved by the Minister be used for any purpose under this Act.

Power to do things electronically

19. (1)  Anything that the Minister or Registrar of Motor Vehicles is required or authorized to do or to provide under this Act may be done or provided by electronic means or in an electronic format.

Same

(2)  Anything that any person is required or authorized to do or to provide to the Minister or the Ministry under this Act may be done or provided by electronic means or in an electronic format, in the circumstances and in the manner specified by the Ministry.

Records

20. (1)  The Minister shall keep a record of every photo card that is issued, renewed or cancelled, and of every application made for a photo card, and shall keep a record of the particulars of each issuance, renewal, cancellation and application.

Same

(2)  The Minister may keep any other records that he or she considers necessary for the administration of this Act.

Penalty for false statement, inaccurate information

(1)  Every person who submits a false or inaccurate document, makes a false statement or includes inaccurate information in or with a written or electronic application, declaration, affidavit or other document required by the Ministry or under this Act is guilty of an offence and on conviction, in addition to any other penalty or punishment to which the person may be liable, is liable to a fine of not less than $400 and not more than $5,000 or to imprisonment for a term of not more than 30 days, or to both, and in addition the person’s driver’s licence or vehicle permit may be suspended for a period of not more than six months.

(2)  Section 9 of the Act is amended by adding the following subsection:

Limitation

(6)  No proceeding for an offence under subsection (1) shall be instituted more than six years after the facts on which the proceeding is based are alleged to have occurred.

33.  Part IV of the Act is amended by adding the following section:

Combined photo card in lieu of driver’s licence card

32.1 (1)  The driver’s licence card issued under this Act may be replaced with a combined photo card issued under the Photo Card Act, 2008, but the provisions of this or any other Act imposing a duty on the holders of drivers’ licences, including a requirement to carry, present or surrender a driver’s licence, apply to the combined photo card and the holder of a combined photo card as if the combined photo card were a driver’s licence.

Combined photo card is also driver’s licence

(2)  A combined photo card issued under the Photo Card Act, 2008 is also the holder’s driver’s licence for all purposes and the one combined photo card constitutes his or her enhanced photo card under that Act and his or her driver’s licence.

Driver’s licence remains valid if photo card ceases to be valid

(3)  If a combined photo card holder’s photo card ceases to be valid under the Photo Card Act, 2008 for any reason, the holder’s driver’s licence remains valid unless this Act requires otherwise, and the holder may be issued a replacement driver’s licence card.

(7)  Section 35 of the Act is amended by adding the following subsection:

Application for driver’s licence by photo card holder

(4.0.1)  A person who holds a basic photo card or enhanced photo card issued under the Photo Card Act, 2008 may apply for a driver’s licence if he or she surrenders the photo card at the time of the application.

36.  Subsection 47 (6) of the Act is repealed and the following substituted:

Same

(6)  Every person whose licence is suspended or cancelled and who, while prohibited from driving a motor vehicle, applies for or procures the issue of or has possession of any portion of a licence issued to him or her, other than a licence card that has been marked by the Ministry as valid only to show the driver’s photograph, is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500 and to imprisonment for a term of not more than 30 days.

37.  (1)  Subsection 48 (10) of the Act is repealed and the following substituted:

Duty of officer

(10)  Every officer who asks for the surrender of a licence under this section shall keep a written record of the licence received with the name and address of the person and the date and time of the suspension and, at the time of receiving the licence, provide the licensee with a written statement of the time from which the suspension takes effect, the length of the period during which the licence is suspended and the place where the licence may be recovered.

(2)  If section 10 of the Safer Roads for a Safer Ontario Act, 2007 comes into force on the same day or before subsection 4 (1) of this Act comes into force, subsection (1) is of no effect.

38.  Subsection 48.1 (10) of the Act is repealed and the following substituted:

Duty of officer

(10)  Every officer who asks for the surrender of a licence under this section shall keep a written record of the licence received with the name and address of the person and the date and time of the suspension and, at the time of receiving the licence, shall provide the licensee with a written statement of the time from which the suspension takes effect, the length of the period during which the licence is suspended and the place where the licence may be recovered.

39.  (1)  Subsection 48.3 (6) of the Act is repealed and the following substituted:

Same

(6)  If notice of the suspension is given to the person by mail, the person shall forthwith surrender his or her driver’s licence.

The Privacy Commissioner of Canada has expressed a number of concerns over the government’s plans.

Listen to some of the concerns surrounding the Enhanced Driver’s Licence in British Columbia.

British Columbia introduced the enhanced driver’s licence in January 2008

Ontario introduced the enhanced driver’s licence on November 27, 2008

Update: January 22, 2009 – Manitoba introduces the enhanced driver’s licence – see story

Update: March 16, 2009 – Saskatchewan will not introduce enhanced driver’s licences, unless appropriate legislation can be constructed concerning how personal information will be utilized and how to protect that information from getting into the hands of computer hackers. See story.

Update: March 17, 2009 – Quebec has now introduced enhanced driver’s licences. See story.

Alberta has already said no to the enchanced driver’s licence.

How can you drive on the 407 Espress Toll Route (ETR) anonymously?  See Ontario’s Information and Privacy Commissioner Ann Cavoukian’s Answer.

Nova Scotia will be the next Province to introduce their version of an enhanced driver’s licence, prior to June 1, 2009.

The world’s largest global newspaper conducted an online Poll, on March 16, 2009, which asked the question to its readers “Would you carry a driver’s licence that included a radio chip?” and 74% voted “No” while only 36% voted “yes”. see Metro Online Poll Results (Metronews.ca Page 12 of Toronto edition).

Update: March 18, 2009 – Ontario: The Ministry of Transportation in Ontario can’t commit to a firm date as to when Ontario’s enhanced driver’s licence will be available, despite the June 1, 2009 deadline. See story.

See some of the other forms of technology which law enforcement is utilizing in Toronto and in British Columbia.

Update: March 25, 2009 – Ontario’s Premier Dalton McGuinty committed to the enhanced driver’s licence, despite privacy concerns expressed. See story.

Updates: Enhanced driver’s licence is not working, it is delayed and will cost a hefty $ 115.00 and the Passport is still the document to use while leaving your country- see various stories – April 29, 2009, May 1, 2009, May 5, 2009, May 6, 2009, May 9, 2009.

Update: May 13/09Information and Privacy Commissioner Ann Cavoukian is not impressed with the Provincial Government’s attempt to “get it right” with respect to new enhanced driver’s licence. prior to June 1/09 deadline.

Update: May 23/09 – Smile! The U.S. sees you coming”

Update: May 29/09- What Identification you’ll be required to produce to enter the U.S.A by land or sea.

Update: May 31/09 -Part of $8.7 Million dollar initiative, border cameras found useless: Report.

Update: June 2/09- U.S. Border patrol will give motorists, entering the U.S.,  a grace period (until the end of June/09) to comply with the new border regulations (Western Hemisphere Travel Initiative) that took effect on June 1, 2009. (See other stories CBC, Star on this subject).

Update: June 6/09 – How to cross border hassle free.

Update: July 22,2009 – Provincial Government plans to consolidate Ontario’s Health Card, Driver’s Licence and Vehicle Registration on one (1) card, with one photo and one signature through its’ ServiceOntario Centres beginning the fall of 2009. See stories Macleans.ca, CP24.

Update: July 25, 2009 – What happens to traveller’s sensitive and confidential information when the private company maintaining the information, goes out of business.

Update: October 13, 2009 – Controversial virtual strip search technology (that can peer through passenger’s clothing and see their bodies) is being used in several American airports and one in Canada. The Kelowna International Airport in British Columbia has tried this technology and soon Pearson Airport in Toronto, Ontario may be using it as well. This scanner uses what’s called Terahertz radiation (a.k.a. T-Rays), a band that lies between microwaves and infrared.

Update: October 16, 2009 – Federal Government refuses to modernize and expand Canada’s outdated Privacy Act. Assistant Privacy Commissioner Chantal Bernier is disappointed at the Federal Government’s response. See fact sheet from the Office of the Privacy Commissioner of Canada.

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