Bill C-42 (Historical)

Strengthening Aviation Security Act

An Act to amend the Aeronautics Act

This enactment amends the Aeronautics Act so that the operator of an aircraft that is due to fly over the United States in the course of an international flight may provide information to a competent authority of that country.

[Edward Hasbrouck]

Good morning and thank you. Please excuse me, my French is very limited.

I'm sorry I can't be with you in Ottawa, but I'm very grateful for the opportunity to contribute a U.S. perspective to the deliberation in this House.

I'm here on behalf of the Liberty Coalition, which coordinates public policy activities on civil liberties and basic rights in conjunction with more than 80 partner organizations from across the political spectrum. The Liberty Coalition does not, however, speak on behalf of those organizations, and my testimony today does not reflect the position of any single coalition partner.

My own particular expertise in airline reservation data is derived from more than 15 years of experience working with PNRs—passenger name records—in the travel industry and more recently working as an investigative journalist and an activist with the Identity Project, researching and documenting both what information is collected about travellers and how that information is used by both the government and private entities in the United States.

The U.S. government, which is to say the Department of Homeland Security, wants the information that would be made available by Bill C-42 for two purposes: for surveillance and for control of travellers. With respect to control, of course, this data would be part of the basis for the making of no-fly decisions and the issuance of secret no-fly orders to airlines.

Unlike the case in Canada, where someone denied travel is given formal notice of that decision and has rights to appeal it, those no-fly orders in the U.S. are entirely extrajudicial. No one in the U.S. has yet obtained court review by any U.S. court of a no-fly order. It is U.S. government policy not even to admit that they have issued such an order, and that includes those denying passage on flights overflying the U.S. that were not scheduled to land. Former Secretary of Homeland Security Michael Chertoff is on the public record as saying that he believed that no-fly decisions should not be subject to judicial review, and the current U.S. administration has done nothing to repudiate that perspective.

While the consequences for anyone are very serious, including for those U.S. citizens trapped abroad who are currently unable to return home because they are not allowed to fly and have no other way to get back to the U.S, they are perhaps most draconian for refugees and asylum seekers. You should be very clear that the enactment of Bill C-42 would grant to the U.S. government de facto veto power over the ability of virtually anyone to obtain sanctuary in Canada, since in most cases it's impossible to get to Canada to make a claim for political asylum or refugee status without overflying the U.S., and that power of the U.S. would be exercised at the worst possible point: while a refugee is still on the soil of and subject to the persecution of the regime they are trying to flee.

While the U.S. is a party to the International Covenant on Civil and Political Rights, article 12 of which guarantees freedom of movement, it ratified the ICCPR with reservations that make it impossible to invoke or enforce it through any U.S. court. In the only instance in which the U.S. DHS has even acknowledged the formal complaints of the Identity Project that its policies, including no-fly and secure flight policies, violate the freedom of movement guaranteed by the ICCPR—the only time it's been acknowledged at all—the TSA took the formal position that the ICCPR does not apply at all to any measure undertaken for reasons of national security.

You should be clear that you are dealing here--unfortunately, I have to say--with a rogue state whose declared position is that its actions in this sphere are exempt from the norms of international human rights law and even from the treaties that it has ratified.

These data are also used for purposes of surveillance of travellers. It is not the case that the information is simply used to make a one-time decision about whether to let you fly. All of your PNRs, even if you are not deemed suspicious and are allowed to fly, will be added to the lifetime travel history and compilation of data already being kept about you as part of the automated targeting system. This includes, as Professor Salter alluded to, a wide range of information. We've been coordinating efforts by individuals in the U.S.—at least, by U.S. citizens, who have some rights in this regard—to request these records. They include, for example, such things as your IP address, who paid for someone else's ticket, what friend's phone number you gave because you were staying at their house when you reconfirmed your reservations, or, in the case of two people travelling together who made their same hotel reservations in the same PNR with their flight reservations, codes indicating whether, behind the closed doors of their hotel room, they asked for one bed or two.

So we're looking literally at data down to the level of intrusiveness of who is sleeping with whom, and of course there is also the opportunity to insert into these records free-text remarks—derogatory comments by a customer service representative who didn't like your attitude, and these sorts of things—that become part of your permanent dossier with the U.S. government.

Because of their secrecy, we have only a partial idea of what data are actually included in these records and an even less complete view of how they are used. As you probably know, the Privacy Act in the U.S. grants no rights whatsoever to foreigners, so there is no legal entitlement for Canadians to find out where these data have gone. Even for U.S. citizens, the DHS has been, I regret to say again, stonewalling requests. I have been obliged, after three years of attempts to get my own dossier and an accounting of the third parties to whom it was given, to bring a federal lawsuit, which is now pending, to find out what those records are.

So far as I know, nobody has actually obtained an accounting of the third-party disclosures of their PNR data by DHS, not even U.S. citizens. While some privacy impact assessments and diplomatic assurances have been offered, it's very important to understand that those are not embodied in any treaty or in any U.S. statute or regulation. They are not enforceable and they have no more weight than any other press release.

All that said about the uses of data by governments, Bill C-42 would authorize airlines to provide these data to the U.S. and other governments. However, this may not actually be necessary, because in most cases the data are already stored in the U.S. and are already accessible to the U.S. government, with or without the permission, or even the knowledge, of the airline.

The vast majority of travel agents and tour operators in Canada, as around the world, do not store their own data. Even if you make a reservation with a Canadian travel agency to travel on a flight that doesn't overfly the U.S., or even within Canada, in the vast majority of cases that reservation is, from the moment of its creation, stored in a computerized reservation system or global distribution system based either in the U.S. or in Europe, but with offices in the U.S. from which all of that information is available.

So it's already possible for the U.S. to go to that CRS or GDS with a national security letter, order them to disclose the entirety of the PNR, order them to conceal the fact that this has happened, and even order them to deny it if asked by the airline, the travel agency, the tour operator, or the individual to whom these data pertain.

You're not being asked to provide this personal information directly to the U.S., Canadian, or any other government; you're required to provide it to an airline, which is going to provide it to other commercial partners or outsourcing providers, so it's also important to understand that these commercial entities that have the data in the U.S are subject to no privacy law whatsoever, absolutely none. They are utterly free to sell this data, use it for any purpose, or transfer it to any third party anywhere in the world. They are not obligated to obtain permission or even to disclose it to the data's subject.

I think there are grave questions as to whether the outsourcing of PNR storage to CRSs and GDSs in the U.S. by Canadian travel agencies and tour operators complies in any respect with PIPEDA, and nothing in Bill C-42 addresses this problem.

While it is not for me as someone speaking to you from San Francisco to tell Canadians what laws you should enact in your country, I certainly hope you will not follow the bad example set by the United States in turning the commercial infrastructure of the airline industry and the travel industry into a permanent infrastructure of surveillance and control of our movements, but that you will use this opportunity to take a much closer look at whether the existing norms and data flows of the industry--particularly the routine and systematic outsourcing to utterly unregulated data aggregators in the form of the CRSs and GDSs in the US—comply with existing law or require further legislation or enforcement action.

I'd be happy to answer any questions from the members.

[Toby Lennox, Vice-President, Corporate Affairs and Communications, Greater Toronto Airports Authority]

Good morning.

My presentation will be in English, but you can ask me questions in French.

My name is Toby Lennox. I am vice-president of corporate affairs and communications for the Greater Toronto Airports Authority. I first would like to thank you very much for the opportunity to appear before you today to provide our perspective on Bill C-42, an act to amend the Aeronautics Act.

As many of you know, the GTAA is the private not-for-profit corporation that operates Canada's largest airport, Toronto Pearson International Airport. Toronto Pearson is truly a global gateway connecting our country with the rest of the world. We handle approximately one-third of Canada's air traffic in any year, and about 50% of all Canada's air cargo. This activity fuels Toronto Pearson's role as a critical economic engine for southern Ontario and, indeed, for Canada. We generate tens of thousands of jobs and billions in annual economic output, wages, and taxes.

In the past, Mr. Chairman, I have appeared before your committee on behalf of both Toronto Pearson and the Canadian airport community, and one consistent message that we have brought forward is that aviation security is critically important to our business. The security of North America's skies and the global air transportation system profoundly impacts the operations and financial health of Toronto Pearson, as well as all of Canada's economic and social interests. It is for this reason alone that we're presenting to you today.

While Canada's airports are not involved in the development or maintenance of no-fly lists and we do not gather, hold, or transmit the personal information identified in Bill C-42, we do support both your consideration and passing of this proposed legislation. We believe this legislation is consistent with international law, which explicitly outlines the right of any country to regulate foreign carriers entering that country's airspace, but in addition to this, we recognize the importance of this bill for two reasons.

First, as you have heard from our Canadian airline customers, inaction would result in significant operational hardships for airlines, and by extension and perhaps more importantly, this impact would reduce the selection of routes, services, and access for Canadians.

Canada was built upon air and aviation links. A large number of flights that depart Toronto Pearson every day are required to overfly the United States. If this bill is not passed, air services that currently overfly American territory--for example, flights to South America and the Caribbean--would no longer be feasible. For Canadian-sourced flights, it is simply not commercially viable, or indeed operationally viable, in some cases, to fly around American airspace. The impact on Canadian air carriers' passengers and the resulting negative impact on the economy is a very compelling reason to support Bill C-42.

The second reason for our support of this bill is that we believe it strengthens aviation security globally. As we have discussed with this committee before, Toronto Pearson believes that collectively we must find enhanced and efficient ways of identifying, assessing, and mitigating threats to security through holistic means. One of the key operational initiatives that we support is the enhancement of collaboration and intelligence-sharing. If we have learned anything from the cargo-bomb plot originating in Yemen and from the events of last December 25, it is that intelligence is one of our best defences against security threats. Bill C-42 provides one means for Canadian air carriers to work with our American neighbours to identify, detect, and deter terrorist threats.

When discussing aviation security, we believe it is important to frame the discussion not in terms of specific airports or even national terms, but in terms of the shared threats to our continent. We support the continued efforts of the Government of Canada and the United States to address common threats of terrorism while ensuring the free flow of travel and trade across the border.

Mr. Chairman, most will agree that the threat to aviation is real. We take this threat very seriously because we recognize that a security incident originating at our airport would likely result in crippling economic consequences. These consequences would surely extend beyond the borders of the Greater Toronto Area and would take years to remedy. We cannot afford to be reactive. We would like to ensure that security legislation and policies in Canada are developed from a proactive strategic perspective.

There are significant policy directions we feel the government should pursue to strengthen the effectiveness and coordination of aviation security, and Bill C-42 is at least a step in the right direction. We emphasize that this bill represents merely one step in a more comprehensive approach to aviation security.

We do acknowledge the privacy concerns raised by some with respect to the implementation of this amendment. In addition, we commend the committee for encouraging open debate on the merits of this bill.

We believe it is important to protect the civil rights of Canadians, and as such, we agree the information that is collected and disclosed to foreign governments should be handled carefully and only be used for the stated purpose of aviation security.

In conclusion, Toronto Pearson considers the safety and security of our passengers and air carriers to be of the highest priority. It is a key element in all we do, and we work diligently with our stakeholders to ensure Canada's aviation security program is holistic, integrated, and world class.

We encourage the committee to support Bill C-42 to ensure these very important amendments are enacted to support global efforts to combat terrorist threats to the North American aviation system. The bill will allow air carriers to continue to operate over U.S. airspace, which is critical to their operations as well as to the economic development potential for the Greater Toronto Area and for Canada as a whole.

I would be pleased to answer any questions the committee may have, both at this session and at any member's convenience.

Thank you.

[Ihsaan Gardee, Executive Director, Canadian Council on American-Islamic Relations]

Good morning. Bonjour.

I'd like to thank the committee for the invitation to appear before you today about Bill C-42, an act to amend the Aeronautics Act. I am joined today by Khalid Elgazzar, a member of the board of directors of the Canadian Council on American-Islamic Relations, or CAIR-CAN. CAIR-CAN is a national not-for-profit grassroots organization that continues to work, as it has for over 10 years now, to empower Canadian Muslims in the fields of human rights and civil liberties, education and outreach, and public advocacy.

Since the tragic events of 9/11, Canada has understandably placed a greater emphasis on public safety and national security. However, in some circumstances those measures were implemented at the expense of fundamental human and privacy rights.

For reasons we will explore, many Canadian Muslims have particular concerns regarding how the introduction of new security regimes seems to have had a disproportionate impact on members of our communities.

On its surface, Bill C-42 appears innocuous enough, consisting as it does of only two clauses with a single purpose: to permit airlines flying over a foreign country to share certain information with that country when required to do so by its laws, an act that is currently prohibited under Canadian privacy laws.

However, in our view Bill C-42 raises a number of serious concerns that we hope this committee and Parliament will address. Chief among these concerns is the potential impact that the secure flight program will have on Canada's sovereignty and on the protection of the privacy and human rights of its citizens. We've all seen from past cases how the lack of controls, caveats, or protections set on information shared with the United States has had disastrous consequences on the lives and livelihoods of Canadian citizens.

Finally, we are also concerned that the regime Bill C-42 would have airlines feed information into is one that lacks an adequate system of redress in the case of error or abuse.

With respect to the potential impact on sovereignty, Bill C-42, as it is currently written, will effectively cede the right of Canada to determine who is or is not permitted to travel to and from this country. An internal Public Safety document obtained under the Access to Information Act and publicized in January of this year stated: It is possible that Canadians overflying the United States could be denied boarding based on U.S. no-fly lists that were developed based on a lower U.S. risk tolerance.

In essence, many Canadians who wish or may be required to travel for personal, work, or emergency reasons will only be allowed to do so with the express permission of a foreign state, in this case the United States. U.S. government sovereignty, which extends over its airspace as indicated in international law, allows it to implement its secure flight program; however, the job of the Canadian government is or should be first and foremost to do its utmost to protect the rights of Canada's citizens.

With respect to the potential impact on privacy and human rights protection, aside from the issue of sovereignty, CAIR-CAN is concerned about the lack of consideration the existing legislation grants to the issues of privacy protection and potential human rights violations.

Under the Bill C-42 regime, airlines overflying American territory would be obliged to share personal data with the U.S. government, an act that is currently prohibited by PIPEDA. This comes without any guarantees regarding how or with whom the U.S. might, at its own discretion, choose to use or share that data. These concerns are shared by officials in Canada's own Public Safety department, as was discovered through an Access to Information Act request.

As we know from cases such as that of Maher Arar, the unfettered sharing of information without any safeguards or adequate redress mechanisms can have disastrous and irreversible consequences. Given the price paid by Canadians such as Mr. Arar, who have suffered as a result of the indiscriminate sharing of information with foreign governments, it is imperative that this Parliament do everything possible to mitigate potential mistreatment abroad by third countries, some of which, as we know, do not share Canada's respect for human rights and civil liberties to the same extent.

Finally, with respect to an adequate redress system, as the Department of Homeland Security's own privacy impact assessment suggests, information that is harvested can be disclosed and used for purposes other than aviation security--for example, for immigration or law enforcement purposes.

Significantly, not only will airlines be required to provide DHS with basic information—date of birth, name, and gender—but also with other “if available” information linked to passengers, including meal selection, passport, and itinerary information. This could potentially open the door to racial or religious profiling.

Experts in security fields have testified that religious and racial profiling simply does not work, nor does it our enhance security. Without any assurances or agreements in place to prevent this kind of abuse, it can create or enhance the very real sense of fear felt by potentially targeted communities, such as Arabs and Muslims.

The mandate of the International Civil Liberties Monitoring Group's clearinghouse project is to document the impacts of no-fly lists, including so-called false positives. It has noted that “Many of the travelers who have been delayed are members of Middle Eastern or Muslim communities”. Furthermore, the ineffectiveness of the DHS travel redress inquiry program, or TRIP, is acknowledged in a 2009 report by the U.S. DHS inspector general, who confirmed that in most cases the program has done little to improve the situation of those who have been the victims of false positives and misidentification.

The lack of a robust redress system within the watchlists upon which the secure flight rules will rely is illustrated today by the plight of citizens such as Adil Charkaoui and Abdullah Almalki. Deemed by Canadian courts or commissions of inquiry not to pose a risk to the national security of Canada, they still find themselves unable to fly as a result of being on U.S. watchlists.

In conclusion, Canadian Muslims remain unequivocally committed, like our fellow citizens, to finding the necessary balance between ensuring that the public safety and national security of our country and its allies is maintained while protecting Canada's sovereignty and the cherished privacy and human rights of her citizens.

Thank you for giving us the opportunity to comment on this legislation. We will be happy to take your questions.

[The Chair, Conservative, Merv Tweed]

I call the meeting to order.

Good morning, everyone. Welcome to meeting number 37 of the Standing Committee on Transport, Infrastructure and Communities. The orders of the day are that pursuant to the order of reference of Tuesday, October 26, 2010, we are examining Bill C-42, an act to amend the Aeronautics Act.

Joining us today are several witnesses. From the University of Ottawa, we have Mr. Mark Salter; from the Canadian Council on American-Islamic Relations, Ihsaan Gardee and Khalid Elgazzar; from the Greater Toronto Airports Authority, Toby Lennox; and via video conference in, I'm hoping, sunny San Francisco, on behalf of the Liberty Coalition, Mr. Edward Hasbrouck.

Can you hear us all right, Mr. Hasbrouck?

[Jeff Watson, Conservative, Essex, ON]

If we decided not to pass Bill C-42, for example, which is what you're recommending, the United States could conceivably deny us the right to travel over their airspace. I presume I have a mobility right to leave my country. It would be a restriction.

I was hoping to get some insight from you on that. Again, I'm not a lawyer.

If I have any time left, Mr. Jean might be able to take this.

Thank you very much. I appreciate this.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Yet you said in your presentation--and I think I'm quoting you correctly--that Bill C-42 violates international law. To me those two statements are diametrically opposed. On one hand, you agree that America has the right to govern its own airspace, yet you present to the committee that Bill C-42, which is complying with what the United States has the right to ask, violates international law. To me that seems like the two are diametrically opposed.

You also said that it violates the Canadian charter, and you're dismayed that there are grave violations, yet you say the U.S. has the rights to its own airspace.

I know that my colleague earlier was talking about the history of Canada, and that we've been able to fly over the United States for 50 years. But regardless of the history we have--and it's been a good history with our American neighbours--laws change and circumstances change. Since 9/11 we have seen America doing what it needs to do in its own airspace, in its own territory, to protect its own citizens. They have the right to do that, do they not?

[Micheal Vonn]

Certainly, as a privacy violation, if we consider this on the basis of the potential consequences for the person involved, it could hardly be more dire than the situation that's facing us in Bill C-42.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

While listening to the testimony, I was sort of writing down a summary, and this is what I've written down.

Bill C-42, if passed, will restrict our citizens' travel rights; it will offend Canadians' rights to privacy; it will quite likely contravene Canadian court decisions, including those of the Supreme Court of Canada; it will violate democratic principles, as Canadian citizens have no way to influence U.S. government policy to which we will effectively be subject; it will effectively cede to a foreign government, namely the United States, Canadian control over where Canadians can travel; it will violate our sovereignty; it will conceivably impair our diplomatic activities and conduct of foreign affairs.

Is that a fair summary of what you would see as the effects of Bill C-42 if it were to pass?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

She told us she had provided the clerk with amendments, but I have yet to see them. Would the purpose of the amendment be to withdraw Bill C-42? I don't know.

Mr. Chairman, will the clerk be sending us the amendments that Ms. Des Rosiers was to submit to her? We haven't received copies of them.

[Dominique Peschard]

Yes, you've correctly understood. We're asking—and I can speak for my colleagues as well—for the withdrawal of Bill C-42, An Act to amend the Aeronautics Act. In reading Ms. Des Rosiers' presentation, I see that she says in her final remarks that her first choice is withdrawal of this bill.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Thank you, Mr. Chairman.

Thank you for your presentations.

Earlier this week, on Tuesday, we met with Nathalie Des Rosiers, who submitted some proposed amendments to the committee.

I'm going to ask you three for some quick answers to my question. Even though you don't expressly say so in your presentations, I don't believe you're recommending that the committee amend the bill. Am I mistaken in thinking that you're simply asking that Bill C-42 be withdrawn?

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

Thank you so much.

From your presentation, I see Bill C-42 as an example of U.S. Homeland Security extending its tentacles into Canadian sovereignty, and I see it as more extra-territoriality and abrogation of Canadian civil liberties. So I think we're all seeing the same thing.

What redress mechanisms exist for persons who are deemed inappropriate to fly over U.S. airspace?

[Dominique Peschard, President, Ligue des droits et libertés]

First I would like to thank committee members for this invitation to testify on Bill C-42. The Ligue des droits et libertés was founded in 1963 and is a member of the International Federation for Human Rights.

I would like to begin this presentation with two examples that clearly illustrate the consequences of a traveller monitoring system such as the Secure Flight program. My first example is that of Hernando Calvo Ospina, a Colombian journalist living in France. On April 18, 2009, Mr. Ospina was travelling to Nicaragua via Mexico for Le Monde diplomatique. Five hours before Air France's Paris-Mexico flight was scheduled to land, it was diverted to Fort-de-France, Martinique. The captain informed the passengers that the United States had not authorized the aircraft to fly over the country because one of the passengers constituted a threat to national security. Unknown to him, Mr. Ospina was on the United States' no-fly list. Mr. Ospina is a regular contributor to Le Monde diplomatique and has written a number of articles criticizing U.S. foreign policy and the CIA's role in Latin America. Mr. Ospina's prohibition has nothing to do with air security. The flight's co-pilot even went to see Mr. Ospina during the flight to verify that he was indeed the person targeted by the prohibition. In Mexico, Mr. Ospina was briefly questioned by Mexican authorities before taking another flight to Managua.

Another case I would like to discuss is that of Paul-Émile Dupret, a Belgian citizen who is an analyst for the European Parliament and who has conducted a campaign opposing the transfer of European travellers' personal information to American authorities. As his flight was on route to Mexico—his final destination was Sao Paulo, where he was travelling to attend the World Social Forum—the aircraft had to circumvent the United States because U.S. authorities were not authorizing Mr. Dupret to fly through American airspace.

These individuals clearly do not represent a threat to air security, and individuals like Mr. Ospina and Mr. Dupret could very well have been Canadian journalists or public servants travelling to Latin America.

As my colleagues before me mentioned, the Secure Flight program could have even more serious consequences. A number of Canadian citizens, such as Messrs. Arar, Almalki, El Maati and Nureddin, have been deported to places where torture is practised, or have been arrested and tortured in Middle Eastern countries based on false information transmitted to those governments. Canadian citizens who are originally from countries like Syria will, if their aircraft fly over the United States, be completely at the mercy of information that those countries would be able to forward to their destination country.

Lastly, with regard to the personal information that will be disclosed under the Secure Flight program, it is an illusion to believe that the information gathered will be protected and used solely for air security purposes. In July 2010, the Washington Post published a series of articles that painted a striking picture of the security structure that the United States put in place after September 11, 2001. The Washington Post surveyed 1,271 government agencies and 1,931 companies operating in the fields of counter-terrorism, intelligence and territorial security. Of that sample, 850,000 persons, 265,000 of whom work in private enterprise, have access to information that has a "top secret" security rating.

In 2004, the Intelligence Reform and Terrorism Prevention Act established the Office of the Director of National Intelligence. The main purpose of that office is to improve intelligence sharing and to integrate it into the national intelligence program framework, which comprises 17 U.S. agencies operating in the intelligence field. The best known are the CIA, the Department of Homeland Security, the Defence Intelligence Agency, the FBI, the NSA, the armed forces, the Coast Guard and on. This enormous structure operates like a black hole that sucks in all information available to it but from which nothing can escape. It is an illusion to think that the information provided under the Secure Flight program will be protected, that it will be destroyed or that it could be corrected in the event of any error. On the contrary, that information will be added to the data bases of the U.S. intelligence agencies and will be compared with information held by all the agencies I've just mentioned to determine whether such and such a person should be prohibited from flying over the United States or even placed on another list.

Experience with the anti-terrorist surveillance list, which consists of approximately one million names in the United States, and with the no-fly list, which contains tens of millions of names, has shown that the names of thousands of innocent persons appear on those lists, and there is no recourse mechanism.

The United States has an insatiable appetite for new control measures that it wants to impose on the entire planet. In January 2010, the Secretary of the Department of Homeland Security, Janet Napolitano, addressed the International Air Transport Association. She called for greater cooperation by airlines and public authorities in four areas: information gathering and analysis, an increase in shared training, greater cooperation in passenger screening, higher security standards and the deployment of new technologies such as body scanners. Ms. Napolitano has made the same requests to the International Civil Aviation Organization.

Since September 11, 2001, numerous measures have been put in place by regulation in Canada in the name of security, such as the Passenger Protection Program through the Smart Border agreement. These measures were taken without public or parliamentary debate and have had the effect of undermining Canadians' rights and freedoms, without the individuals whose rights are violated having access to any recourse mechanisms.

Justice O'Connor's investigation of the Arar affair has shown to what extent the ill-considered sharing of information can have harmful effects. Four years after Judge O'Connor's report was tabled, we are still waiting for implementation of his recommendations for the introduction of a mechanism for monitoring security intelligence activities in Canada.

Bill C-42 raises some fundamental issues about Canada's sovereignty and the protection of Canadians' rights and freedoms. The Parliament of Canada has a duty to defend those rights, rather than submit to the United States' endless demands allegedly in the name of security. Canada should play an international leadership role in putting in place air security systems that are consistent with the rights recognized in the Canadian charter and international law.

Thank you.

[Roch Tassé, National Coordinator, International Civil Liberties Monitoring Group]

First I would like to thank committee members for inviting us to discuss our concerns about Bill C-42. If this bill is passed, it will enable the authorities of a foreign country to decide in an arbitrary and discretionary manner who may board an aircraft, and to do so for the majority of international flights entering and leaving Canada.

In view of the many comments by travellers who have been prohibited from flying since the Secure Flight program has gradually been put in place in recent months, we can expect that, with the passage of Bill C-42, we will be seeing an increasing number of Canadians and visitors to Canada literally grounded, with no recourse or remedy, even though they have no intention of travelling to the United States.

Under the final rule of the international component of secure flight published in late October of 2008, airlines are required to transmit all passenger information to Homeland Security and U.S. Customs and Border Protection 72 hours before departure for all flights to and from the U.S. as well as for all flights that overfly U.S. territory. This includes not only basic API information, such as name, gender, and date of birth, but also all information contained in the reservation system known as PNR, or passenger name record.

After running a risk assessment for each passenger using data mining technology, Homeland Security in turn issues a boarding pass result back to the airline. The result instructs the airline to issue a boarding pass, deny permission to travel, or issue an enhanced screening requirement. These regulations give the U.S. access to a whole subset of information on air passengers who are not entering the U.S. but merely overflying its airspace. Furthermore, this information can be shared among at least 16 U.S. agencies and with foreign governments. The program gives the government of a foreign country a de facto right to decide who gets to travel to and from Canada, since the vast majority of Canadian flights to and from Europe, the Caribbean, and South America overfly American airspace.

Let me quote from an internal Public Safety Canada document obtained by The Canadian Press and dated January 26, 2009:

There are a number of concerns that the Secure Flight Program poses for Canada.

Secure Flight affects both passengers and airlines. Airlines will be compelled to share personal data with the U.S. government—an act that is currently prohibited by the Personal Information Protection and Electronic Documents Act. It is possible that Canadians overflying the United States could be denied boarding based on U.S. No-Fly lists that were developed based on lower U.S. risk tolerance. There are also no guarantees how the U.S. will use the information it obtains from carriers overflying its territory.

During debate on second reading, Liberal MP Joe Volpe said, “This bill is a total abnegation of our sovereignty responsibility.” He is absolutely right. None of us in this room, even respected members of the Canadian Parliament, will be allowed to fly virtually anywhere in the world without the explicit consent of the United States. It creates the very real possibility that the charter rights of Canadians and their right to privacy will be violated by the legislation of a foreign country without Canada's being able to defend those rights.

We know that Maher Arar is on the U.S. no-fly list. Several other cases in which Canadians have been denied boarding by the U.S., even for domestic flights in Canada, have also been reported. Those cases include several individuals who have been deemed by Canadian courts and commissions of inquiry not to pose a risk to the national security of Canada. They include Abdullah Almalki, Adil Charkaoui, and others I could talk about later. If Bill C-42 is adopted, even the rulings of Canadian courts won't be able to be enforced.

There are other concerns related to Canada's sovereignty. For example, half the cabinet members of the Bolivian government are persona non grata in the U.S., so if Canada were to invite one of those ministers for a diplomatic meeting in Canada, the U.S. could bar this minister from boarding a plane to attend the meeting at the invitation of Canada. The same could apply to refugee claimants, who, even if admitted by Canada, could be denied the possibility of leaving their country by the U.S.

Other impacts on refugees and immigrants include the possibility of mistreatment abroad by third countries with whom the U.S. might share travel information. By adopting Bill C-42, Canada could become an accomplice in the U.S. rendition program, which is already responsible for the torture of Canadians in Syria and Egypt, among others. At the very least it would support Canadian complicity in a foreign government's program that violates due process and the principles of natural justice.

Disclosure of personal information to the Department of Homeland Security on passengers travelling to certain destinations, particularly Cuba, could lead to unpleasant consequences. For example, this information could be used to identify Canadian companies that do business with Cuba or to penalize travellers who have visited Cuba by subsequently refusing them entry into the U.S. How will Canada ensure that the U.S. will not use the secure flight program to apply its Helms-Burton act, which imposes penalties on foreign companies doing business with Cuba?

There are also serious concerns related to the huge number of passengers who are intercepted on false positives and who have no redress mechanism other than being told to change their names.

ICLMG has received testimony from many Canadians who have been intercepted as false positives on the U.S. list in Canadian airports and who have been told by Homeland Security that the redress mechanism known as TRIP could not apply to them because the incident did not occur on U.S. territory. Even if TRIP did apply, there is still no redress mechanism whatsoever if you are the real person on the no-fly list.

As you can see, the U.S. secure flight program will have a very harmful impact on Canadian travellers and on visitors to Canada. We call on you to oppose these measures. Canadians expect their government to protect the sovereignty of their country and uphold their rights. The rule of law and the charter of rights of Canadians cannot be sacrificed at the altar of short-term commercial interests.

[Micheal Vonn, Policy Director, British Columbia Civil Liberties Association]

Thank you, Mr. Chair, and thank you to the committee for the invitation.

I am appearing on behalf of the British Columbia Civil Liberties Association to express our opposition to Bill C-42. Commissioner Stoddart has already done a commendable job of outlining the privacy concerns of Bill C-42, and stressing that once released, Canadian information will be broadly disclosed for a variety of purposes.

As important as the privacy issues are, I suggest that they are something of a red herring. In following the discussion on this matter, we have been dismayed that the subject of U.S. secure flight itself and the grave rights violations involved in the overall program have been so little touched upon.

The committee has heard, we suggest, endless iterations on the theme of the rights of U.S. sovereignty to its airspace, but disappointingly little about the rights of Canadian citizens. It is our submission that in enacting Bill C-42, Canada will be complicit in a no-fly regime that does not comport to the rule of law. We say that the U.S. secure flight program violates international law and that subjecting Canadians to the secure flight regime through the mechanism of Bill C-42 violates the Canadian charter.

What is proposed under Bill C-42 is that Canada supply passenger information to the U.S. in order that passengers may be granted or denied permission to transit U.S. airspace on the basis of unknowable and unchallengeable criteria. Every country in the world is, of course, sovereign over its airspace, yet the innovation that is being contemplated by the U.S. is, to our understanding, without precedent and essentially stands to completely subvert the current practice of global traffic and trade.

As Monsieur Caron from the Office of the Privacy Commissioner alluded to, the freedom to fly over sovereign countries is enshrined in international conventions. It is indeed possible for sovereign states to make rules regarding transit, and U.S. secure flight rules to deny travel permissions on the basis of their watch lists may be one of them. However, the analysis does not stop there. Travel watch lists are an increasingly important discussion in the international community.

The B.C. Civil Liberties Association recently published a paper on the United Nations Security Council's resolution 1267 regime, which is a watch list for individuals and entities subjected to international travel bans and asset freezes. The B.C. Civil Liberties Association says that the UN watch list violates international law and the Canadian Constitution for failure to provide due process, also known as natural justice.

There is some variation in the requirements of due process in different contexts, but it typically involves the right to an independent and impartial arbitrator, the right to know the case against you, and the right to be heard. These are familiar elements of what is called due process and are understood by virtually everyone as elements of basic fairness. Such rules are at the heart of our own charter and of instruments of international law, such as the Universal Declaration of Human Rights, which, to provide one example, states that:

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

The 1267 watch list is created--and these elements will be familiar to you--on the basis of secret evidence. An individual listed has no opportunity to make the case before the 1267 committee prior to being placed on the blacklist, there is no mechanism to review the accuracy of evidence, there's only very limited ability to participate in a delisting request, and there is certainly no opportunity to present one's defence or assert one's rights.

This regime is under a strident attack, ranging from a resolution by the Parliamentary Assembly of the Council of Europe harshly criticizing this regime to the striking down by the Supreme Court of the United Kingdom of domestic legislation implementing the 1267 regime in that country for--exactly as we put it--failure to comport to the principles of natural justice.

In our opinion, Canadian implementation of the 1267 regime is likewise a violation of both the Canadian charter and the Bill of Rights. This is relevant to our discussion of U.S. secure flight, because that program is even more devoid of due process protections and the rules of fundamental justice than the 1267 regime is.

Let me attempt to bring some clarity to this matter. I'm reading some of the proceedings, and there appears to be some confusion.

Canadians attempting to travel to many destinations in Europe, the Caribbean, and South America will be prevented from doing so on the basis of a secret watch list of a foreign country, which provides absolutely no form of process or redress. The highly unsatisfactory process, which attempts to provide some recourse to the scandalous number of false positives on that list, is not a mechanism of redress for people who are “correctly listed”. Some of these “correctly listed” people will be familiar to you as Canadians who have no criminal record and have been exonerated of any links to terrorism or terrorist organizations. My colleagues will be discussing those in more depth. For such people there is no redress, no process, no remedy.

As I listened to questions regarding how Canada will assist Canadians who are denied boarding by secure flight, I have heard no credible plan for repatriating and protecting Canadian citizens who will be denied permission to return to Canada and endangered by the smear of terrorism involvement while vulnerable in a foreign country.

In short, a bill that is being touted as a safety measure not only enables a program that quite frankly can nowhere provide evidence--