Public Safety Committee on April 29th, 2010

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

What would be the activities that this person...

We sometimes have the impression that it is arbitrary. I know of cases of people who had a clean slate or record, to my knowledge. One was targeted over a period of nine months, and then, his name disappeared from the list. I was there, and the Air Canada staff told him that his name was on a list.

[The Vice-Chair, NDP, Don Davies]

Monsieur Desnoyers, I'm sorry, but you're over time. Please let the witness answer.

[Gerard McDonald]

The only organizations that would indicate that a person may be considered for the list would be recognized terrorist organizations. Al-Qaeda is a perfect example. A person is a known member of al-Qaeda, has experience in bomb-making, perhaps, and actually attempted to blow up an airliner ten years ago--this is all hypothetical. That may be a good candidate for someone to put on a specified persons list.

[The Vice-Chair, NDP, Don Davies]

On behalf of the entire committee, I'd like to thank the witnesses very much for their very helpful testimony.

We will break for two minutes to allow our next round of witnesses to take their chairs.

[The Vice-Chair, NDP, Don Davies]

I ask everybody to please resume their seats and we'll get the proceedings back under way.

I'd like to welcome all the witnesses to the Standing Committee on Public Safety and National Security. I understand that each of you has been told of our procedures. To go over it, each one of you will have a presentation that you can make to the committee for up to ten minutes and then we will proceed with questions.

I understand we're going to begin with Madame Bernier on behalf of the Privacy Commissioner's office.

[Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada]

Thank you very much. I am accompanied by Carman Baggaley, who is a senior policy analyst with our office.

We are very pleased to be here today. We are happy to discuss the implications of certain Canadian aviation security measures in relation to privacy. We commend you for addressing this issue. We would argue that the challenge of integrating privacy and security comes to a head most acutely in the context of aviation security.

Aviation security measures affect us all. They put our personal information in the hands of the most powerful authorities in the land. The risk of misuse that comes with any collection of personal information is all the more consequential in that context. The one message I would like to leave with you today is that effectiveness of security and protection of privacy are not at odds; they both reside in a streamlining of collection of personal information to what is strictly relevant and necessary.

To apply this approach we must look at Canadian values as enshrined in the Charter of Rights and Freedoms and in the Privacy Act. On the basis of these documents as well as on the basis of the case law that interprets them some criteria emerge on how to define how far the government can go in limiting privacy in the interest of security. These criteria may be summarized in four main points: First, the right to privacy is a fundamental right that cannot be infringed upon unless it is demonstrably necessary in the interest of the public good; second, it follows from this that the collection of personal information can only occur when it is proven necessary and it must be proportionate to that necessity; third, that necessity must be assessed on an ongoing basis by verifying that the collection of personal information is indeed effective and necessary in relation to the identified necessity; fourth and finally, it must be demonstrated there are no less privacy-invasive alternatives to meet that necessity.

This lens ensures that we both respect the right to privacy in analyzing security measures and that we duly take into account the security needs that must be met.

I will apply this lens to two aviation security measures currently in use: firstly, the Advanced Passenger Information Program and Passenger Name Record; and secondly, the Passenger Protect Program.

Let us first discuss the Advanced Passenger Information Program and Passenger Name Record. Airlines are required to provide the Canada Border Services Agency with passengers' personal information in advance of their arrival in Canada, as well as the passenger name record, which shows the passenger's travel itinerary. In both cases this information is retained in the Passenger Information System, or PAXIS, for a minimum of three and a half years. Our office expressed concerns about the program from the beginning, and in response the following privacy controls were incorporated into the program: the retention period for the personal information was reduced to what was deemed strictly necessary; we obtained that a progressive depersonalization process be implemented, so that after 72 hours the information on a passenger's identity is separated from his or her travel information; and finally, the use of the personal information is strictly limited to the fight against crime and protection of national security.

Although we are satisfied with these changes, the necessity of collecting such personal information and the safeguards required to protect the information still need to be reviewed.

Moving to the passenger protect program, as you know, and you have just discussed, we have taken an interest in this program. In fact, we audited it most recently. We have found a few areas in which we felt improvements could be made, although we have also found that Transport Canada generally uses adequate measures to protect the personal information within its control.

As you have heard, all of our recommendations have been accepted, and all of them either have been implemented or are being implemented.

Finally, I know you are also interested in the secure flight program. On this matter, at this point, I will only say that it is a U.S. government program and is therefore outside our jurisdiction. However, we will work with Transport Canada and Public Safety Canada to review any measures the Canadian government will implement in response to secure flight.

In closing, I wish to stress the importance of integrating privacy into aviation security measures, to the benefit of both security and privacy, by limiting collection of personal information to what is strictly necessary and justified in a free and democratic society.

I will be happy to take your questions.

[The Vice-Chair, NDP, Don Davies]

Thank you.

Ms. Vonn.

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

Mr. Chairman, committee members, thank you very much for having us. My name is Micheal Vonn and I'm a policy director and a lawyer with the B.C. Civil Liberties Association.

These prepared remarks are meant to complement those of the International Civil Liberties Monitoring Group. I'm going to be discussing the passenger protect program, and my colleague Mr. Tassé is going to be discussing secure flight.

I'm looking forward to perhaps endeavouring to sort out some of the Byzantine elements of which list constitutes what kind of restriction. Let me just give you a brief overview of where we are with the Canadian no-fly list.

Passenger protect, as you've heard, was coming into force in June 2007. The regulatory impact analysis statement of the identity screening regulations of that piece of legislation explicitly cites the push from foreign governments in developing this program, specifically noting that this program was supposed to be a significant step towards achieving the goal of developing a comparable approach to passenger assessment, which the security and prosperity partnership had identified as a significant goal. Passenger protect was meant not only to dissuade the U.S. from its repeated threats, starting in 2005, to impose the U.S. no-fly list on all Canadian air flights crossing into U.S. air space; it was also meant to curtail the domestic use of the U.S. no-fly list by airlines in Canada.

The B.C. Civil Liberties Association wrote to Transport Canada in 2006 regarding this use by Canadian airlines, most notably Air Canada's U.S. no-fly list vetting for domestic flights within Canada. A response came back, and this is the quote:

Transport Canada has no regulatory or legislative authority in place to prevent Air Canada from taking this action. However, we are of the understanding that once the Canadian program is in place, Canadian air carriers will be in a position to end this practice.

Not only do we submit that it is relatively unthinkable that Transport Canada has no authority to prevent passengers on domestic Canadian air flights from being subjected to a watch list of a foreign government compiled on the basis of secret information, but, further, that the practice of vetting domestic passengers against the U.S. list has indeed not stopped with the introduction of our own program. We have, as it were, the worst of both worlds.

While the passenger protect program is by no means as notorious as the U.S. counterpart, it is nevertheless deeply flawed and very likely unconstitutional, in our submission. The program is ostensibly built on the 2004 amendments to the Aeronautics Act that were introduced via the Public Safety Act in 2002. The key provisions are entitled “emergency directions”, and those provide authority to the minister, or the minister's delegate, to make an emergency direction when the minister is of the opinion that there is an immediate threat to airline security or safety. An emergency direction lasts for 72 hours.

Of course, the program we are discussing right now is called a no-fly list. If you are wondering how a person is vetted months or years in advance as being, as per the legislation, an “immediate” threat to aviation security, it was explained to me thus: a person is considered a generic threat, and then they become an immediate threat the minute they try to get on a plane.

If you find that definition strained or rather semantically bizarre, I suggest that it is the kind of rhetorical round peg trying to be smashed into a square hole that is the signature of passenger protect. It seems infinitely more likely that one of the reasons we cannot notify people about their inclusion on the specified persons list is that it does not accord at all with the notion of the 72-hour provisions in the Aeronautics Act that provide for immediate threat.

The Public Safety Act was certainly debated, but there has never been any parliamentary debate on the creation of a Canadian no-fly list. Regulations were passed and guidelines were drafted so that the program that is supposedly authorized on the basis of emergency directions looks somewhat like--you heard the outline--an advisory group represented by Transport Canada, CSIS, and the RCMP that reviews names submitted by the RCMP and CSIS for inclusion on the list. This list is nowhere accounted for in the statute.

Passengers are required, as we've been told, to show government-issued ID to find out whether they have a match on this list. If a match is made, the airline staff must immediately inform the minister's office, or their delegate, who decides whether to issue this emergency direction.

That person who it has been decided will not board an airplane has recourse to the Office of Reconsideration, which uses independent external advisors, although I should just note that the person has no immediate recourse, of course, for getting on the plane. The Office of Reconsideration has external advisors for the review of this application, and they make a recommendation to the minister. Bare-bones outline--you've heard that.

Since its inception, there have been serious and persistent concerns about the legality and practices of this program. To begin with, the legislative scheme itself does not add up to the program. There is no provision for a list, as I've highlighted. There is such a profound disconnect between the enabling legislation, the regulations, and the actual program that it purports to authorize that numerous legal opinions maintain that the program may not even be found to be prescribed by law for the purposes of the charter.

Even if this vague and disjunctive legislative scheme were to be found prescribed by law, there are yet other charter hurdles to pass, including the one that I'm going to suggest is the primary one, which would be section 7 of the charter.

Concerns about procedural fairness include the minister's discretion, which is virtually unfettered. The audit by the Privacy Commissioner's office found that these unsurprisingly—and we've heard this before—were decisions that were not reviewed, but rubber-stamped. We've been told that the deputy minister, who is the delegate, now has the entire file. It still just strains credulity to believe that this entire file is going to be reviewed while the airline is on hold for the decision.

The criteria we've heard discussed is not only non-exhaustive, it is vague, and quite frankly, legally non-binding. There is no legal status to the “guidelines” for criteria for the advisory group.

Various charter rights are at issue. These have been hinted at, but the central one, as I say, is section 7--“life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The implications of being denied the ability to get on an airplane are always deeply serious, but nowhere more dire than the implications that have been suggested: when a person who has been unaccountably labelled a security threat is stranded in a foreign country and denied the ability to board an airplane to come home to Canada.

The passenger protect program is being legally challenged right now, as you've heard. The challenge is a very telling snapshot of the problems with this program. The challenger did apply to the Office of Reconsideration, and those independent reviewers agreed with the assessment that this is probably not a legal program. They were concerned about the discretion that was unfettered; they were deeply concerned about the vague, selected, and incomplete evidence that was provided in terms of the application of those decisions, and the independent reviewers did recommend to the minister, as per the legislation, that this name be removed. That decision was undertaken to not do that very thing, so it was summarily dismissed.

In conclusion, let me just state my main points in this very brief submission. The government has repeatedly failed to produce one shred of evidence to support the proposition that no-fly lists increase aviation safety or security. The current system was effectively implemented through stealth, never debated, never spelled out, nor seemingly even envisioned in the enabling statute. The legislative misfit of this program is so pronounced as to make it doubtful whether it is even prescribed by law for the purposes of the charter, and even in meeting this hurdle we have serious charter considerations.

It has long since passed the time to end the silent bureaucratic implementation of security programs that so deeply affect the rights of Canadians. This matter is even more pressing than I'm suggesting because of the even more invidious rights violations that are on the horizon due to secure flight.

[The Vice-Chair, NDP, Don Davies]

Thank you, Ms. Vonn.

Monsieur Tassé.

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

Thank you, Mr. Chairman.

My name is Roch Tassé, and I am the national coordinator for the International Civil Liberties Monitoring Group. Thank you for having invited us to appear today.

First, I would like to mention that ICLMG shares all the concerns expressed by my colleague here from BCCLA with regard to the passenger protect program, especially that it was introduced through the back door without any adequate legislative basis, without any discussion in Parliament, and very likely in violation of section 7 of the charter.

However, I would like to focus my presentation today on the new U.S. secure flight program. While the Canadian passenger protect and the U.S. no-fly list that we've known so far have made life miserable for many airline passengers and unbearable for others, the incremental introduction of the U.S. secure flight program over the last few months raises even more dramatic concerns and could literally ground many Canadians and visitors to Canada who have no intention of ever travelling to the U.S.

The avowed aim of secure flight is to shift pre-departure watch list responsibilities from airline operators to the U.S. Transportation Security Administration and to remove the secret watch list from the hands of airline companies. Under the final rules of the international component of secure flight that were published in late October 2008, airlines are required to transmit all passenger information to the Department of 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 the basic API information such as name, gender, and date of birth, but all information contained in the reservation systems, known as PNR, passenger name records.

After running a risk assessment for each passenger using data-mining technology, the Department of 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 enhanced screening requirements.

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. 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 and all the flights, of course, to Latin America and the Caribbean will overfly U.S. territory.

According to an internal document from public safety that was obtained by Canadian Press last December, the U.S. has provided Canada an exemption only for domestic flights that transit the airspace of continental U.S. between two Canadian airports or locations. Let me quote from page 9 of the document. This is Public Safety Canada saying this:

Canada will be subject to the Secure Flight Program by late 2009, although officials at Homeland Security have confirmed that they would consider granting an extension if there were assurances that Canada is pursuing a comparable program. 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.

The document goes on to recommend that, to address these concerns, Canada should develop a more robust program, known as the air passenger assessment system, that would meet the comparability test of secure flight.

This raises numerous concerns and questions with regard to the amount of information that will be collected on travellers, the standards and criteria to be applied to put a person on the list, and the number of people who will be added to the list to satisfy U.S. requirements. Also, the document makes no references whatsoever to the legislative basis required to implement such a program.

The secure flight program became active on January 27, 2009. When it is fully established, it will encompass more than 70 U.S. airlines and roughly 150 foreign airlines. As of March 31, 2009, the program had grown to include 74 U.S. airlines and 19 foreign airlines in some way. Of those, the secure flight program assumed watch list matching for five foreign airlines. Air Canada is most likely one of those five airlines already using secure flight.

In an e-mail sent to the Montreal Gazette last February, a spokesperson from Air Canada admitted for the first time that “For flights to and from the U.S. as well as flights overflying the U.S., we are obligated by law to enforce the U.S. no-fly list.”

So it would seem that Air Canada is already violating PIPEDA, Canada's privacy regime. There are grave consequences for Canada's sovereignty here. It creates a very real possibility that the charter rights of Canadians and their rights to privacy are being violated by the legislation of a foreign country without Canada being able to defend those rights and the rights of Canadians. Several cases have already been reported when Canadians have been denied boarding by the U.S. even for domestic flights in Canada. That includes the case of Abdullah Almalki, who, after having his name cleared in Canada by the Iacobucci inquiry, was denied boarding on an Air Canada flight between Toronto and Windsor last December. He was told by Air Canada that he was on the U.S. no-fly list.

In this case, not only did Air Canada violate PIPEDA, it did not even take into account that there is an exemption in the secure flight program for purely domestic flights that overfly U.S. airspace.

There are other concerns related to Canada's sovereignty. For example, half the cabinet of Evo Morales in Bolivia are persona non grata in the United States, so if Canada were to invite one of those ministers for a diplomatic meeting in Canada it is ultimately the U.S. that would decide if that minister has the right to come to Canada after being invited by the Canadian government. The same could apply to refugee claimants from Colombia, who, even if they were admitted by Canada, could be denied the possibility of leaving their country by the U.S.

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

And what about the precedent created by the secure flight program? How would Canada, or the U.S. for that matter, react if the same measures were imposed by North Korea or less friendly countries? There are also serious concerns related to the huge number of passengers who are intercepted as false positive and have no redress mechanism, other than being told to change their names.

ICLMG has received testimony from several Canadians who have been intercepted as false positives on the U.S. list in Canadian airports and have been told by the Department of Homeland Security that the secure flight redress mechanism could not apply to them because the incident did not occur on U.S. territory?

Finally, the published regulations are extremely worrisome, both for what they state, as well as for what they fail to address. There is nothing outlining the applicable standards or how decisions will be made to issue these new travel credentials, nor are there any mechanisms for travellers to find out why they are denied permission to fly, and none of these decisions are subject to any due process or any judicial review.

As you can see, the secure flight program will have or already has had a very harmful impact on Canadian travellers and visitors to Canada. We call on you today to strongly and quickly oppose these measures. Canadians expect their governments to protect the sovereignty of their country and uphold their rights.

Thank you.

[The Vice-Chair, NDP, Don Davies]

Thank you.

Mr. Kania, for seven minutes.

[Andrew Kania, Liberal, Brampton West, ON]

I'd like to discuss the creation of the analysis of the current system in light of what the best overall system is, based on empirical evidence, in terms of what actually works. We have a system now that in essence is secretive because people are placed on the list and they're not told they're placed on the list. They'll find out they're on the list if they're barred when they go to the airport. Then if they happen to be barred, they have a reverse onus to prove their own innocence, and then they are forced to go to court if they don't get the appropriate decision. The gentleman who was here earlier seemed to think there was independent oversight because eventually they'll go to the minister. Obviously that's not logical.

First, would it not be better to have a system whereby persons were told if they were on the list? At least then they would have an opportunity to defend themselves. And second, there would not be a reverse onus that they had to prove their innocence, but the reverse, under our laws. Third, if they did not get the result they were happy with, if they thought it was unfair, they would be able to go to an independent person, arm's length from the government, call it what you wish, an ombudsman, etc., so they could get a remedy without having to spend thousands of dollars going to court.

I'd like you to comment on that, please.

[Micheal Vonn]

I can make a couple of preliminary comments on that.

It actually seems, as I have indicated in my comments, that what's really at issue here is trying to ram the passenger protect program into these provisions that were never actually envisioned to encompass the program, which is why we don't actually give notice to people.

People can get notice of the passenger protect program. It's easy, and this is always what happens with security measures when you say how we'd go about doing this would be top secret. If I were on the passenger protect program, I wouldn't be able to get my boarding pass electronically. That would be my heads-up. If we are actually concerned about giving people too much notice, we already have a provision for finding out whether you're likely on the list or on it de facto.

As you were suggesting, the kinds of procedural protections that would be in place and that you have outlined would absolutely go a huge way toward making the system fairer. Another important thing, though, is that we actually home onto the criteria of what constitutes an immediate threat. Right now we have the notion that some people are too dangerous to fly but apparently not dangerous enough to arrest, even on conspiracy charges. We have a Criminal Code that allows us to actually arrest people for planning, and the concern about the efficacy of this program is very much what happens in the U.S. with the no-fly list: they don't put anybody who's really bad on the list because they don't want to give them a heads-up. Ergo, what's the list for? Nothing.

[Andrew Kania, Liberal, Brampton West, ON]

I'd like to know what evidence there is that this system actually works. What evidence or studies show that this system actually protects air passengers in an effective manner, in comparison to some other potential system, such as screening the “good” passengers so that more efforts can be put on the passengers who may be risks or are unknown?

[Roch Tassé]

We don't have statistics in Canada, but according to what Homeland Security or the FBI has published--I'm not sure which of the two, so I'd have to go back to my files--only about 2% of the people on the list have been intercepted, and the list in the U.S. is huge. We're talking tens of thousands of people. Not a single one of those persons was intercepted for being a terrorist threat or a threat to aviation. They were criminals with outstanding warrants, so the U.S. list has been used for giving the police more powers to get after regular criminals.

[Micheal Vonn]

As to aviation security, we've asked several times, which is why you would hear the language that the representative from Transport Canada was using about this being part of a multi-layered holistic program. It's because the actual evidence for this program is virtually non-existent. The Privacy Commissioner's office has asked for evidence of the efficacy of such a program; it does not exist that we're aware of.

[Andrew Kania, Liberal, Brampton West, ON]

If they're maintaining the current system, would you agree with me that at a minimum there should be a new mechanism added whereby persons would be able to appeal to an independent person who would make a determination, rather than having to go to court or rely upon the minister?

[Micheal Vonn]

We believe that the system is deeply flawed and that improvements are welcome, absolutely.

[Andrew Kania, Liberal, Brampton West, ON]

Would you support that improvement?

[Micheal Vonn]

I would have to vet that to our entire group, but it is an improvement, absolutely.

[Andrew Kania, Liberal, Brampton West, ON]

Madame Bernier, I think you indicated that all the recommendations in your report were implemented--

[Chantal Bernier]

Or are being implemented.

[Andrew Kania, Liberal, Brampton West, ON]

Fine.

My question is on the false positives mentioned in your report. How have the false positives been fixed?

[Chantal Bernier]

We issued our report just a few months ago. So far we have worked with Transport Canada to see how they will fix that situation. We intend to do a follow-up to make sure they fix it, but we're giving them time to actually do that. We intend to check up with them again to see that every recommendation has been accepted and is therefore implemented.

[Andrew Kania, Liberal, Brampton West, ON]

From that I take it that at present you are not aware that it has been fixed.