Bill C-6 (Historical)

An Act to amend the Aeronautics Act and to make consequential amendments to other Acts

This enactment deals with integrated management systems and authorizes the establishment of voluntary reporting programs under which information relating to aviation safety and security may be reported. It also authorizes the designation of industry bodies to certify persons undertaking certain aeronautical activities. Other powers are enhanced or added to improve the proper administration of the Act, in particular powers granted to certain members of the Canadian Forces to investigate aviation accidents involving both civilians and a military aircraft or aeronautical facility.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

But you have specific references in this case, in Bill C-6, which will become the Aeronautics Act. Perhaps we could have an answer from Justice.

[Franz Reinhardt]

Well, it will have something to do with it when enforcement comes into play, but we're not talking about enforcement here.

I see you reading this, and I would like you to read this. I'm trying to explain voluntary and non-punitive reporting and also SMS protection. If I were given the opportunity to explain, you would see how important it is to the gathering of safety information.

Let me explain. There are two systems. Each company governed by SMS will have an internal reporting process where employees are encouraged to report. I'll take you to the page that says “Reporting process”. Proposed section 5.392 is applicable to organizations governed by SMS. It's available to any employees within the organization, to encourage reporting. Employees can even report that they have committed a violation without fear of reprisal. Information is reported to the organization, not to Transport Canada.

There is no report, Monsieur Laframboise, to Transport Canada. It's reported to the organization. The information is used to analyze hazards and take corrective measures. If we don't tell them it's protected and that it's not going to be in a newspaper tomorrow, they will not report. If they have committed a blunder, a breach of one of the standard operating procedures, they need to be protected. The information would not necessarily have been available to the organization before Bill C-6. When there is no protection, they do not report. Bill C-6 will encourage internal reporting by providing protection of the information and the reporting employee.

On the second page, for those who want to follow it with me, the internal information is protected even if it comes into Transport Canada's possession during inspection, audits, and assessments. It's not our intent to go and get that information, but we may from time to time. We need to be there to validate systems. We need to be there to inspect. We need to be there to audit. Transport Canada is saying that if it comes into our possession we will not use this for enforcement purposes. We want employees to report to the employer and we want to guarantee that we will not use it against them.

Also, it is protected from access to information. These days they are not reporting because they don't have protection. They want to report, so this is the guarantee we're giving them.

The information cannot be used for disciplinary purposes against reporting employees, except in accordance with the non-punitive reporting policy under SMS. Each company will have its conditions. They will tell employees that if they do things wilfully, of course they will be punished. If a report is error-based and it is not wilful, they will not punish.

You will see there has been an add-on to the protections with respect to a person reporting about another employee. That is to make sure there will not be reprisals against a person.

The information cannot be released under ATIP if it has been obtained by Transport Canada. If it has been obtained by Transport Canada, the information may be used to advance safety, but only after being de-identified. We want to protect the travelling public. We want to advance safety. We can do this. We don't need the name of the person; we want to use the aggregate safety information.

A court can always obtain information under the power of subpoena. The TSB has that power. This is not usually the type of information the TSB will want, because they will have evidence and other.... But if they wanted that type of information for whatever reason, they have authority to get it.

Also, if the safety of operations is considered to be jeopardized, Transport Canada may use information to substantiate administrative certificate action under proposed section 7.1. The minister can issue a civil aviation document, a CAD. The minister can remove that document if a company no longer meets the conditions of issuance or if it's in the public interest. Sometimes the only way we can prove there is a problem is with the evidence that is there. In that case, the minister could use it. He would not use it for enforcement purposes, because we gave our commitment; however, if there is such an egregious situation in a company that we need to refer to some of those elements, the minister can use it. It is the best of both worlds.

This is one system of reporting under SMS. I'm telling you again: If you don't have those protections, the information will not come flowing in. The companies cannot do their trend analyses. They cannot use their risk assessments. They cannot take corrective measures, because things will simply not be reported. You have the whistle-blower type of protection there, and you also have the protection for access.

The other system is the universal non-punitive reporting process, and this one, you will see, is under proposed section 5.395 of the Aeronautics Act, dealt with in clause 12 of Bill C-6. This is universal, and it's voluntary. Anybody can use this. It is applicable and available to anybody anytime, anywhere to report any type of information relating to aviation safety or security. It could be a flight attendant reporting; it could be a pilot or a co-pilot. It could be a janitor on the floor seeing a safety situation that he or she needs to report.

The program is established and funded by the minister, but it's intended to be administered by an objective and independent third party government agency such as NRC, TSB or another. This is similar to what they have in the United States. It's called the aviation safety reporting system, funded by the FAA but administered by NASA. I have included a website link there, so if people want to get more information, they can get a pretty good idea of what is done with the information. There is lots of feedback and lots of good information coming in, but there's some protection.

Persons may even report, without fear of reprisal, that they have committed the violation. Information is reported to a third party government agency, not Transport Canada. So Transport Canada is not there.

The information is used to gather as much evidence, as much aviation safety data as possible to perform trend analyses, studies, reviews, and examination of hazards and incidents to advance safety, inform others of potential safety and security pitfalls, and prevent recurrence. It is information that would never be reported if no protection were provided to the reporting person. The information reported is de-identified within a very short period of time. Usually—and it's going to be done through regulation—it's between 24 and 48 hours. The person writes in, and there's a strip. The strip is detached and sent back to the person to show it was de-identified. But before doing this, the agency will call and try to get as much information as possible, and then de-identify it.

The information cannot be used for enforcement action or any legal, disciplinary, or other proceedings. The information cannot be released under ATIP until it is de-identified. Of course, when it is de-identified, it's going to be released and used also by the minister and by that agency to advance safety. The aggregate information may be used by the custodian repository government agency and Transport Canada, as I just mentioned, but only after being de-identified.

The protection for the reporting person applies even if proceedings are initiated against the person based on independent evidence obtained outside of the program. Let me give you an example. Someone reports there and says, “It wasn't intentional. I did that”, and they receive a receipt for this that will allow them to oppose this if someone wants to prosecute. Then he can say, “Hey, I did report”, and just as it is in the States, I have that “get out of jail” ticket here, provided that:

(1) the person has reported through the program;

(2) the information doesn't relate to a reportable accident or incident, because TSB requires that those things be reported, so they have no protection there;

(3) the alleged violation was not committed wilfully. Again, if there is evidence and inspectors can prove that things were done wilfully, there will be no protection;

(4) the person is not found by a court or tribunal to have committed a violation of the Aeronautics Act within the previous two years;

(5) the person has not made use of the protection before a court or tribunal within the previous two years;

(6) the person has already—in case they are working for an SMS company—reported the event through the internal SMS reporting process when the person is employed by an organization governed by SMS.

Again, there's lots of good information here. The American website will show you how much good information there is, which you won't get if you don't give the protection. It is of the utmost importance to have the protection in order to get people to report. Otherwise, they won't report.

[The Chair, Conservative, Merv Tweed]

Thank you, and welcome back.

I think we have a little more clarity now with regard to Bill C-6 and what the G-3 amendment is.

Before I recognize Mr. Julian, I want to advise the committee that we are still dealing with BQ-16. This document was put forward to give Monsieur Laframboise an opportunity to look at it and see if it meshes with what he's thinking. It's certainly the one document we have that refers to clause 12 on page 15 and gives the details as the best piece of information we've had so far.

Go ahead, Mr. Julian.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, with regard to the last point, we have already addressed that.

However, with regard to the balance of Thursday's statement, I am pleased to respond that today and tomorrow we will continue with Bill C-55, the expanded voting opportunities bill; Bill C-14, the adoption bill; Bill C-57, An Act to amend the Immigration and Refugee Protection Act; and Bill C-45, the fisheries act.

In the last Thursday statement, we indicated that we were hoping to have this week as “enhancing the quality of the life of first nations people week” but this was cancelled by the opposition parties when they did not release Bill C-44 from committee, the bill that would give the first nations protection under the Canadian Human Rights Act. Not only is it being held up now but, as early as this morning in this House, the opposition obstructed our efforts to get the bill dealt with forthwith so that first nations people could have the human rights that every other Canadian enjoys. We know that if all parties would agree to proceed with that, as we saw when we sought unanimous consent, it could proceed, but some would prefer to obstruct it.

Next week will be welcome back from committee week, when we welcome business that has been at committee, including some that has been stalled there for some time. We will deal with Bill C-52, the budget implementation bill, which will begin report stage on Monday and, hopefully, we can get third reading wrapped up by Tuesday.

Following the budget bill, we will call for report stage and third reading of Bill C-35, bail reform. After that, we will call Bill C-23, the Criminal Code amendments. I hardly remember when Bill C-23 was sent to the committee by this House. That took place long before I was even House leader 228 days ago.

Thursday, June 7, shall be the last allotted day. There are a number of other bills that we would like to include in our welcome back from committee week. I still hope we can see Bill C-44, the amendments to the Canadian Human Rights Act, to which I just referred; Bill C-6, the amendments to the Aeronautics Act; Bill C-27 dealing with dangerous offenders; Bill C-32 dealing with impaired driving; and Bill C-33 dealing with foreign investment, if the opposition parties will release those from committee.

[The Chair, Conservative, Merv Tweed]

That is it, and I thank you.

Just for the committee's interest, before I adjourn, on Monday we will be dealing with Bill C-6.

The meeting is adjourned.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Chair, I have a similar point of view. The designated organizations are something that many witnesses identified as a quite major flaw in Bill C-6. We have, from three opposition parties, similar amendments to try to make the bill operative in a way that doesn't present the danger many witnesses felt it presented.

So either the government withdraws amendment G-2 or we stand it aside, but I certainly won't be voting for it.

I think it's a bit like putting the cart before the horse to consider this when we have substantial amendments from the three opposition parties that deal with that proposed section. It would be, I think, more effective to proceed to the BQ motion or the Liberal motion, and then after we've had the debate and discussion there, if we needed to consider amendment G-2 we could come back to it at that point.

[The Chair, Conservative, Merv Tweed]

The letter will go out ASAP.

On Wednesday we will be spending the first two hours of committee dealing with Bill C-6. We'll deal with the estimates in the third hour, as agreed upon at the last meeting.

Thank you.

The meeting is adjourned.

[Susan Stanfield]

I'd have to think about that, but I think “by regulation” in this provision, at the very least, would cause some confusion when it's read with the rest of the provision, because section 4.2 is a listing of the responsibilities. It's kind of a high-level list of responsibilities and authorities that the minister has to administer the Aeronautics Act and to enter agreements and things like that. Not all of those responsibilities can be fulfilled by means of a regulatory instrument, and you wouldn't necessarily want it to have to be done that way. Some of those responsibilities...it would make it very difficult to negotiate the agreements if everything had to be done by regulation.

I'm not sure what the intention was of “by regulation” at the end of that provision, but I don't think it achieves a goal that you would want to have.

The only other concern I have is with the wording itself. I think it really constrains the minister, because it says:

shall ensure that aeronautical activities are conducted at all times in a manner

There's no ability in that wording for him to do anything different, and “shall ensure” is really difficult wording to live up to.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

That is fine with me, provided they answer the question properly. My advisors tell me that, under Bill C-6, some information held by the minister could be disclosed only with the minister's agreement. Thus, under the Canadian Transportation Accident Investigation and Safety Board Act the board might be unable to obtain some information if the minister refused to disclose it.

You say that the Canadian Transportation Accident Investigation and Safety Board can obtain all the information it needs, but under Bill C-6, the minister has the power to keep some information confidential. But I don't want the minister to keep information confidential in an investigation. That's a kind of situation where I find myself asking questions, like Mr. Bélanger. Who is right here?

In the same vein, on February 2, 2006, the department issued a directive restricting the Transportation of Dangerous Goods Act. The department should be more open and allow our researchers to have access to all the documents that are pertinent so that I can make an enlightened decision.

Mr. Chairman, I have no difficulty with Mr. Bélanger's request, provided that our researchers have the time they need for the analysis.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.

With regard to the last part of the discussion and access to information, my colleague Mr. Laframboise might have an answer when we come to section 43 and to proposed amendment LIB-8. If the amendment is passed, it will change the scope of exceptions put forward by the government in Bill C-6.

To come back to amendments BQ-6, LIB-2 and NDP-3, I have a question on a somewhat different issue. I will put the question to our researchers and legal advisor, and it concerns departmental officials, or the people moving the amendment that refers to the Transportation of Dangerous Goods Act, 1992, and the Canadian Transportation Accident Investigation and Safety Board Act.

Are the people who drafted those amendments for my colleagues aware of all provisions in those two statutes and the regulations flowing from them? Are they satisfied with those statutes? That is homework I have not done, Mr. Chairman. Can the researchers tell us whether there could be unforeseen obstacles we should know about in the Transportation of Dangerous Goods Act, 1992, or in the Canadian Transportation Accident Investigation and Safety Board Act? Here, we are including references to statutes I have not read, and I certainly don't know all the existing regulations that flow from those statutes.

I would therefore like to know if there could be unforeseen obstacles or conflicts arising from there.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Except that my advisors tell me the new confidentiality clauses here in Bill C-6 could restrict those two powers investigators have under section 19. Subsection 19(9)(a) and sections (10) and (15.1) establish the information which must be produced in an investigation. The new confidentiality clauses in Bill C-6 could thus restrict those two powers. In my view, nothing must impose restrictions on those powers.

[Franz Reinhardt]

I've listened to your arguments, and I must say that we do of course recognize that the statutes you have listed prevail over the Aeronautics Act. That is not a problem.

However, as I was saying the other day, section 14 of the Canadian Transportation Accident Investigation and Safety Board Act is very clear with regard to the board's priority with respect to any other investigation that might take place.

In the same fashion, clause 4.2(2) of Bill C-6 stipulates that:

An investigation carried out by the Minister of Transport under paragraph (1)(n) may not have as its purpose the making of findings as to causes and contributing factors of an aviation accident or incident.

That is to allow the Canadian Transportation Accident Investigation and Safety Board to take priority. Their investigators also have all the necessary powers in their legislation. In my view, as things stand, those statutes already prevail. The Department of Justice has informed me that we should not create a precedent by including references in bills that give priority to other bills, when the latter priority is already clear.

That is the only point I wanted to make.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Obviously, you understand that I was going to maintain the amendment moved, BQ-6. First of all, I believe that provisions in the Canada Labour Code would supercede this legislation. Even the Liberal Party moved a similar amendment. With regard to the statutes added in amendment BQ-6, they are the Transportation of Dangerous Goods Act and the Canadian Transportation Accident Investigation and Safety Board Act.

I could put forward a number of additional arguments in support of maintaining this condition in the amendment. However, among other things, it would be important for access to information issues to ensure that Bill C-6 does not contradict the Canadian Transportation Accident Investigation and Safety Board Act. It is important for us as lawmakers to show to Transport Canada and to all stakeholders that, under Bill C-6, the Canadian Transportation Accident Investigation and Safety Board Act would prevail over Bill C-6, with regard to access to information among other things. Some provisions in Bill C-6 restrict access to information.

It is very important for us to ensure that access to information is always authorized at the Canadian Transportation Accident Investigation and Safety Board. In spite of some of the comments made, we know Bill C-6 can restrict some powers under the act, with respect to access to information among other things.

However, even if the Transportation of Dangerous Goods Act, 1992, stipulates that its authority is exclusive, it is important that such authority be maintained. In February 2006, Transport Canada published a policy statement that among other things restricted part of the Transportation of Dangerous Goods Act. Transport Canada must understand that the Transportation of Dangerous Goods Act still prevails over Bill C-6. Transportation of dangerous goods is an activity that must be regulated. That is why Parliament passed a law to that effect in 1992.

That is what I had to add, Mr. Chairman. I maintain the amendment moved, BQ-6.

[The Chair, Conservative, Merv Tweed]

Order, please.

Good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 53. Pursuant to the order of reference of Tuesday, November 7, 2006, we are here to study Bill C-6, An Act to amend the Aeronautics Act and to make consequential amendments to other Acts.

Again joining us from the Department of Transport are Franz Reinhardt, Susan Stanfield, and Merlin Preuss. Christopher Shelley is from—

[The Chair, Conservative, Merv Tweed]

So based on what I've heard, we will book three hours on Wednesday, May 30. During the first two, we'll deal with C-6 clause-by-clause, and during the third hour we will deal with estimates with departmental officials.