Transport Committee on Feb. 24th, 2009

[The Chair, Conservative, Merv Tweed]

I would like to comment to the committee that it's not a point of order, but it's a good point.

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Merv Tweed]

Mr. Volpe, you have five minutes with these wonderful departmental people.

No, I'm sorry, it's Mr. Kennedy for five minutes.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thanks, Mr. Chair.

I wonder if you could help me a bit with the root purpose of the legislation. We're told that this is already reflecting practices that the ministry is undertaking. Is that correct? In part, is this codifying what's already underway?

The second part of my question is that I'm hearing from other ministries that there's a lot of duplication and some confusion about the whole matter of security clearances. Who makes them? By what standard are they done? How many times do different agencies that deal with the government have to do them? It's to the point where private organizations--businesses, for example, and infrastructure--aren't interested in doing business with the government any more because it takes too much of their time. They can't qualify people in one place to be able to do business and carry on.

Surely if the heart of this legislation is to codify some of the practices that you have, are you addressing the question of what a security clearance is and how to make sure that it is not going to be an encumbrance? This is a particular issue when we're leading up to performance-sensitive events like 2010 and so on. Is that issue addressed in here, and where? Could you comment more generally on the problem, if you think it exists?

[Marc Grégoire]

I'll start with the general perspective.

First of all, this act won't repeat what we're doing now because we're not doing anything about security with the actual legislation. All of the provisions in the legislation in front of you regarding security are new, and we think these are gaps that need to be closed.

On the security clearance and the complaints you have received from private companies, you would have to clarify a bit for me what kinds of complaints you got. Are these companies trying to do business with the Government of Canada, or are these companies trying to do business with ports or airports? We definitely wouldn't want to implement security clearance requirements where they're not required for security reasons. First and foremost, we would base all of that on a solid risk analysis. That's outside of the cross-border issue, which was discussed at length in the first hour.

On the safety side, we are trying to clarify some portions of the act. I'll let Peter or Marie-France clarify those.

[Peter Coyles]

Can I add something on security clearances? A lot of inter-agency work has been done under the SPP, the security and prosperity partnership agreement, that was done with the United States several years ago. Inter-agency people have been coming together and looking at what the security clearance is. There has been Natural Resources Canada, for example, and Health Canada and Transport Canada. There has been some work with the United States to understand what their security clearance is and also what the Mexican security clearance is. All that work is the foundation for trying to understand what a security background or security clearance will be in relation to this act. So yes, a lot of work has already been under way, and that work continues.

I think Mr. Grégoire talked about the notion of a new administration and how some of this work will come back into play once the players have been established. There have been several meetings, both with U.S. colleagues coming up to Canada and with Canadians, and our Mexican counterparts, going to the United States, to look at understanding and establishing exactly that notion.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

As a follow-up, do we have an understanding within our own government of the different levels of security clearance we might be looking at for, say, a truck driver of hazardous waste and somebody who makes fully responsible decisions that could move large quantities of hazardous waste around? Are there levels of that required, and do they correspond to other types of security or safety risks that are happening elsewhere?

Just to elaborate slightly on what Mr. Grégoire said, the reason is that there are people who want to have construction contracts, for example, with one part of government, and they find that the security clearances are completely different from what they are in another type of government, and they find this to be an enormous bureaucratic impediment. Now, there may be good reasons for this, but I'm wondering, within the Government of Canada, because you're introducing a new platform for security clearances, if this question is being addressed. Is it a legitimate concern on the part of outside agents as they encounter government, or is it just a misunderstanding?

You talked about cross-border a little more specifically than about cross-ministries and the different requirements we seem to have for people who deal with government to prove their security-worthiness.

[Marc Grégoire]

I can address that.

Yes, there is an interdepartmental working group that is looking at the very heart of your point. They are focusing on the security clearance levels of employees, to start with. We found out through this work that security clearance levels are different between departments and that processes are a bit different between departments. The same levels are looked at differently by different departments for businesses wanting to do business with those departments. We're trying to bring uniformity to all of them, and that's one of the recommendations of this working group. So that's being discussed at this very moment, in the last few weeks and months. It will take some time to implement. That's for employees and for companies doing business with the government.

The idea would be that once you get security-cleared by one organization in the government, you could work anywhere in the government where this level of security is requested. For instance, if a company or a person is requested to have secret clearance, we're now agreeing on what that means so that the level would be recognized wherever you go in the government, either as an employee or as a provider to the government.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Is this legislation proposed going to add to or detract from that process? In other words, there are a lot of discretionary powers being conveyed here. Conceivably we could have a whole new regime for transport and for dangerous goods and so on that might not conform with some of the work that's been done, and we get another layer of impediments. In other words, I know that there's a rubric of security. We all want to see that we have measures in place, but I think some of our experience has been that it hasn't happened that smoothly.

Does this legislation do anything to take into account that challenge of not duplicating and of anticipating standards that could come government-wide? Does it propose anything of that kind?

[Marc Grégoire]

It's not the legislation itself that says that, because it doesn't, and we looked at section 5.2 before, in the first hour. It's the regulation that would look at this. But our objective in Transport Canada is to have only one kind of security clearance for workers. Whether it be a port worker, a mariner, an airport worker, a trucker, or a train driver, we would use the same clearance.

Basically the background check we do is that once the individual has submitted a form, a request to obtain a clearance, we analyze it, we submit it to the RCMP and to CSIS, and both the RCMP and CSIS do their checks. CSIS will check to see if the person represents a threat to national security, and the RCMP will look to see if the person has a criminal record or if the person is a member of organized crime. And based on that information we determine whether or not the person should be granted a clearance, with only one question in mind: Does that person represent a threat to transportation security--period.

We have not yet introduced the notion of different levels. So for now, everybody we have in the system only has one level, which is different from the way it is for the employees. For instance, for the employees, we have enhanced reliability, secret, and top-secret levels.

The transportation security clearance is quasi-equivalent to the secret level that we have in the public service, but it's the same for everybody.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Mayes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

I'd like to direct my question to Mr. Coyles.

I'm the only member of Parliament here from British Columbia. I'm looking forward to the Olympics in less than a year now. The implementation of the provisions of this bill is very important to the RCMP. I want to know the timelines that you could see if this bill moves through the House, let's say, within a month.

[Peter Coyles]

If we move rapidly, then we will be able to do the things we need to do for the Olympics. The largest things we would be looking for would be security, interim orders, and obviously the ability to use emergency response assistance plans, should there be a terrorist incident. All these things come into effect with the new act. They provide the instruments to be able to do the majority of the things we want to do.

Also, on the notion of prevention planning, there are some other aspects of this bill that would enable us to move forward and have an appropriate program in place for the Olympics. So if it were able to move forward relatively quickly, as you're suggesting, within a month, that would be ample time for the department to take its appropriate action.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

You did say the enforcement infrastructure was there. Is that correct?

[Peter Coyles]

Yes. We have the ability already to draft any requirements, the regulations. We have the ability. We have inspectors in the field. They would need to be designated and trained for security. We have all the components required. We have emergency response assistance plans that are already approved from industry.

The notion here in the act is to provide the authority to pay, should they be asked by the government to respond on behalf of it, during an incident involving dangerous goods that would be of a terrorist nature or a security nature, and we have the ability to have the indemnity protection that industry has requested, should they be asked to do so on our behalf.

It would give us a very strong and solid prevention program as well as a response program, and these are the things that obviously the RCMP is looking for from the department.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you.

I apologize to the member over there from British Columbia. It was an oversight. I'm sorry.

Liability--there's always liability, with regulation and without regulation. How do you see the exposure to the Government of Canada with regard to liability with this act, specifically the implementation and then the enforcement?

[Marc Grégoire]

As you said, there's always liability. But generally speaking, the courts have never made the government liable because it issued a regulation.

The liability here is mostly if there is a terrorist event and the government requests that a company activates its ERAP, or emergency response assistance plan. Then the government would have to pay the company and would be liable for any damages incurred by the company in assisting us to deal with a terrorist incident. This is very important, because the capacity of the government as a whole.... There is a lot of capacity at different levels, either at the municipal, provincial, or federal level. But there's a lot of capacity to deal with nasty stuff, like chemical incidents, in the private sector.

But today, if it's a safety incident or accident, the companies are forced to fix the thing themselves, to activate the plan themselves, and they incur the liability for this. If there is a terrorist incident and there is a chemical leak somewhere of a very nasty chemical, we have private capacity out there. So the provisions in here will allow the government to direct the company to help us deal with this chemical leak, for instance, but will assume the liability. That is probably the biggest liability I can see in the provisions of the bill now.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Do I have time for one more question?

[The Chair, Conservative, Merv Tweed]

Yes, you have one minute.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

With regard to the security clearances, in my notes here it talks about an appeal process similar to that of the Aeronautics Act. Could you explain that a little bit? If I'm a truck driver and all of a sudden I'm red-flagged and I don't get a security clearance and I don't know why, how do I appeal that and what are the time lines?

[Marc Grégoire]

I will explain to you the appeal mechanism or the reconsideration mechanism that we have put in place with the marine sector through regulation.

If you are refused security clearance, you can make a case to the reconsideration office, which is different from my organization in safety and security. You can make your case, with or without a lawyer, and explain why your situation should be reconsidered by the government.

We have done this. We have looked at cases. And generally speaking, we have needed more information. So it could be that your security clearance was refused for lack of information or for what appears to be a contradiction in the information you provided. If you're able to bring corrected facts and data, then clearance could be given to you. However, if the department still refuses to give you clearance, then your next appeal is at the Federal Court level.

[The Chair, Conservative, Merv Tweed]

Thank you.

That concludes the round. What I'd like to do, as we have in the past with this committee, is we'll go in the same order. We'll start with about three minutes, and we'll move from the Liberals to the Bloc to the NDP and around the table.

Monsieur Volpe.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Thank you, Mr. Chairman.

Again, let me express my thanks to the departmental officials.

I've listened very carefully to all of the responses that have been given and I'm assured of one thing: I feel comfortable that all the mechanisms you require to address the movement of hazardous goods are already in place, at least from the point of view of background checks and security clearances of drivers; and secondly, the protocols are in place for addressing issues that will involve an accident.

I say that with a little bit of reservation, though, because a couple of the issues that have been raised have to do with making the legislation more flexible--or rather, I should say, making the government's ability to respond to the demands of the day a little bit more flexible. The regulations, as I heard you explain them, really address just two areas, although you've concentrated on one most of the afternoon. One is on driver background security checks that are focused more on what's going to happen inside these borders, with a potential to get reciprocity on equivalency with the United States. The second is on the documentation of the dangerous goods themselves. I didn't hear anything about the justification for this enhanced enabling legislation that's related to what the minister said initially on it, and that is the economic development and of course the upcoming Olympic Games. I haven't heard that connection.

I tried earlier to talk about what the technology might be that would help us in the movement across borders, whether they be interprovincial borders or national borders. We've avoided that discussion, but I think we'll probably get to that.

Because this is only a three-minute intervention, you'll have to forgive me if I kind of lay the groundwork with this soliloquy, but perhaps we'll do that when we get to a further briefing about which industry representatives you have met, and whether you have met with the trucking associations and the specific organizations that have developed already or are in the course of perfecting the technology that will allow, as I said earlier, for vehicle immobilization and for long-distance intervention that will really track goods and also individuals, because obviously driver verification is involved.

I think we've just talked very briefly about engaging the RCMP and CSIS and obviously their counterparts south of the border, but none of that has come forward, unfortunately. It's unfair to ask the departmental officials about all of this, so maybe we should sit the parliamentary secretary in the spot of the minister so we can address some of these important issues of privacy and security.

I don't mean to trivialize the arguments, because they're very serious and the officials have been very bang-on in terms of the answers they have given, but they haven't addressed these issues. Perhaps in the briefings afterwards we can do that.

I thank you so far. We hope to get into this a little more.

[The Chair, Conservative, Merv Tweed]

Mr. Grégoire, very briefly. As you know, Mr. Volpe has utilized most of the time.

[Marc Grégoire]

I can only note and observe that Mr. Volpe would have liked to have far more security provisions in this piece of legislation.