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.

[The Chair, Conservative, Merv Tweed]

Thank you, and good morning, everyone.

Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 36. Pursuant to our orders of the day, the order of reference of Tuesday, October 26, 2010, we are studying Bill C-42, An Act to amend the Aeronautics Act.

Joining us here today, from the Ligue des droits et libertés, is Dominique Peschard; from the International Civil Liberties Monitoring Group, Roch Tassé; and from the British Columbia Civil Liberties Association, Micheal Vonn.

We welcome you, and I've been told that you have been advised as far as the time limits for presentations are concerned, after which we'll go immediately to questions and answers.

I'm not sure if anybody has decided who wants to start first.

Ms. Vonn, please begin.

[Dennis Bevington, NDP, Western Arctic, NT]

December 1 at 3:30 p.m. would work for me, but definitely not the evening. Thursdays are going to be tough for anyone to swallow here. Thursday evenings, I suppose, are out of consideration, but if they are...I think the Thursday evening is a good time. I'd recommend that it take place.

I agree with Monsieur Guimond; we talked about this and we wanted to bring in the airlines on this issue. I sense that we need to also look at how many witnesses we have with Bill C-42 and see whether we can achieve our ends there in a reasonable time.

I know that probably makes Mr. Jean happy, but I'm not averse to doing that on occasion.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

As I've said in the committee before, and Monsieur Guimond has agreed, my number one issue is that we continue on with committee business, legislation specifically, because we have three bills. Other than that, I'm prepared to sit whenever anybody wants. I think 3:30 p.m. is a great suggestion.

I am getting concerned about the infrastructure issue being a priority only because we have three pieces of legislation in front of us waiting to happen: Bill C-511, which is of course Mr. Volpe's PEDAL act, which the government has said it's open to look at; Bill C-42, which is before us now and for which we are under a time constraint; and Bill C-33, a railway review coming forward, which a lot of user groups I think are going to be rattling our doors very heavily on.

Originally, when we agreed to have the infrastructure motion and to have that study, it was suggested to have two meetings. Then I think it was a government amendment that said have up to four. We've had three or four already. If we're going to go into those meetings, I would prefer them not being a priority, and just doing them outside of regular meetings, certainly whenever you want to do so.

I think Mr. Guimond is correct in relation to the public participation act. I think we have to study that. That's an issue that's coming forward, and we might have to deal with it as a committee or as a government immediately, so it would be a good idea to get input on that.

As far as I'm concerned, as long as the regular committee meetings are the legislation and we continue with the legislation as we're doing, I'm open to whichever priorities the opposition parties want to study.

[The Chair, Conservative, Merv Tweed]

Thank you, and welcome back, everyone.

In the last meeting we talked about hosting extra meetings in regard to some of the outstanding issues we have. I'm seeking some direction from the committee.

I would ask that all committee members review their schedules and submit to Bonnie what evenings they would be available over the next two weeks. Once we do that we'll try to build enough meetings so that when we have quorum, or enough people are committed, we will call the meeting and do the issues. We do need to know that by Thursday. If we're going to start booking witnesses, we need to be able to give them confirmed times.

The budget on Bill C-42 has been circulated to all members. Everybody has a copy of it. This is basically the cost of either bringing individuals in or setting up video conferences.

I would need a motion for that.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chairman.

Mr. Goldstein, I would like to go back to what you said about Plattsburgh. Did you mean that more people would go there if Bill C-42 weren't adopted? Why?

[David Goldstein]

I think Bill C-42 in isolation is one step towards greater harmonization of rules and regulations on travel back and forth. That's obviously our biggest concern.

[David Goldstein, President and Chief Executive Officer, Tourism Industry Association of Canada]

Thank you, Mr. Chairman, members of the committee, for the opportunity to appear today in support of Bill C-42.

My name is David Goldstein, and I am president and CEO of the Tourism Industry Association of Canada.

By way of introduction, the Tourism Industry Association is the only national organization that represents the full cross-section of the tourism and travel industry in Canada. Our members include those who are directly involved in the aviation sector, such as airlines and airports, but our perspective goes beyond the economics of aviation in Canada. We are here to explain the importance of the ripple effect it plays on the broader Canadian economy, as we represent over 8,000 direct and affiliate members across the country from coast to coast to coast, who in turn represent over 1.6 million Canadians whose jobs depend on the economic impact of tourism in Canada.

In the interests of ensuring we continue to work towards a safe, efficient, and cost-effective air transportation system, TIAC supports Bill C-42, which will put Canada in compliance with the U.S. Secure Flight program by transmitting passenger information to the U.S. prior to the departure from Canada of any aircraft that will traverse U.S. airspace in the course of its flight to a destination outside the U.S. That deals with outbound flights as much as it deals with inbound flights coming into Canada.

In this context, TIAC welcomes the negotiation of an exemption for domestic flights as they pass through U.S. airspace.

Flights that will be affected by Bill C-42 are important to the tourism sector. The Americas, excluding the U.S., represent a significant market for us. The region includes two of the Canadian Tourism Commission's key target markets—Mexico and Brazil—and overall, 615,000 travellers from the Americas spent $764 million in Canada in 2008.

Nearly all of these visitors fly to get here. We've attached some information in a chart appended to our submission. If Canada does not pass Bill C-42, the best case would mean use of alternative routes that go around U.S. airspace, and the worst case would see these flights grounded.

Use of alternative routes will mean longer travel times, higher costs, and increased environmental impact. Sixty-five per cent of visitors from the Americas fly directly to Canada--that is, through U.S. airspace--but do not stop in the U.S.

If Canada chooses to narrowly define its sovereign right to refuse the U.S. request to supply passenger information for flights through U.S. airspace, this will change the economic model for flights and for Canadian tourism. Consequently, these travellers are likely to choose other destinations that would not require them to make stopovers or long flyovers.

Since 30% of travellers from the Americas arrive here via the U.S., assuming they take the same type of route to get home, their personal information is already being transmitted to the U.S. before they fly anyway.

The U.S. has a sovereign right to control its airspace, and entry into sovereign territory constitutes agreement to abide by the laws of the state that governs it. It only makes sense that Canada would wish to maintain its access to U.S. airspace.

Taking these two things as given, TIAC hopes the committee will choose to support Bill C-42.

I thank the committee for its time, and I welcome your questions.

[Mike McNaney, Board of Directors Member, National Airlines Council of Canada]

Thank you, Mr. Chairman, and members of the committee, for the opportunity to appear this morning to outline for you why the National Airlines Council of Canada does support wholeheartedly the passage of Bill C-42.

We are here on behalf of WestJet, Air Canada, Air Transat, and Jazz to briefly outline for you the operational and economic fallout that would occur if Canadian carriers were denied access to U.S. airspace for overflight. We fully realize there are other issues on the table, of course, that are impacting the decision you'll have to make, but we did want to take the opportunity here to tell you about the economic impact.

During debate at second reading, it has been implied that denying Canadian carriers access to U.S. airspace for overflight may simply make flying time somewhat longer. In fact, the impact is far greater than that. Simply put, air services from Canada to Mexico, the Caribbean or South America would no longer be commercially viable if we were denied access to transit through U.S. airspace en route to those destinations.

Flights from Ontario, Quebec, and the Maritimes would all have to head further east over the Atlantic Ocean. Up to four hours additional flying time round trip for each flight would result in significantly increasing fuel burn and drastically reduce the amount of payload carried. By payload, we mean passengers, cargo, bags, etc.

More significantly, the additional flight time would mean that the vast majority of destinations could no longer be served. You could not fly there anymore, because they would exceed the safe performance limitations of the aircraft. Flights from western Canada would need to head west over the Pacific, and would run into similar operational and geographic realities. The airspace west of the continental United States is one of the busiest oceanic routes in the world, due to east-west traffic from the continental U.S. running to various Pacific destinations.

From an air traffic control perspective, north-south flights across the corridor would simply be impractical, as they would be prohibited or, at best, severely restricted by air traffic control. Furthermore, even if there were a handful of destinations that might still be served, the dramatic increase in flying time and the necessary increase in airfares to cover the increased fuel burn would make the flights completely unattractive to Canadian consumers. Why would someone choose to fly out of Canada on a flight that is now up to four hours longer, when you could simply cross the border and fly on U.S. carriers to take advantage of the much shorter flying time and commensurately lower fares?

Thus, from a commercial and operational perspective, being denied access to U.S. airspace for overflight would be an unmitigated disaster for Canadian air carriers and our passengers. Given the operational realities and the commercial impact, carriers would largely cancel service on these routes.

The economic impact on Canadian carriers would be severe. The winter schedules are already set, the tour packages and room nights, etc., are already booked, the crew scheduling is already taken care of, as is aircraft scheduling already locked in. Denial of access to these markets would create insurmountable challenges and seriously undermine the economic strength of the industry.

We urge the committee and Parliament to pass Bill C-42.

We would be happy to take your questions.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

I want to thank the committee for inviting the Canadian Civil Liberties Association.

The association has been in existence since 1964 and has been in the service of civil liberties in Canada since that time. It has acquired broad experience with privacy issues.

I'm going to address four points in this presentation: the bill's constitutional vulnerability; its vulnerability from the standpoint of international law, the dangers it entails with regard to precedents in the field of privacy in Canada and, lastly, an invitation to go back to the drawing board to explore certain measures that we will be proposing.

I will give the rest of my presentation in English, and would be happy to answer questions in English or French. My colleague, Sukanya Pillay, will complete the question period.

First of all, in terms of the constitutional vulnerability of the bill, as you know, privacy is protected by the charter. Passengers may have diminished expectations of privacy when they go to an airport, but they don't have “no” expectations of privacy. Indeed, the question of the expectations of privacy of passengers with respect to their personal information is being considered by the Supreme Court, as we speak. In the Chehil case, CCLA is one of the intervenors.

So the question of the privacy of information of passengers is directly under the court right now, and in our view, it would be premature to move under the current bill without knowing the full extent to which it complies with the charter.

Certainly to the extent that there is an expectation of privacy protected by the charter, this bill would not meet a section 1 challenge, because it has no limitations. It does not adequately protect the problems that may arise with the disclosure of information, and so on. So the first point is that there is a constitutional vulnerability that should be looked at before we go too much further.

The second point is that it does not meet the international law standards that do allow exceptions. I have to remind you here that this is a bill that provides for general exemptions from PIPEDA. And in international law, again, in light of wanting to protect privacy, there is a possibility of exemptions, but—and in the brief that we submitted, we refer to the UN committee on this—it must not give unfettered discretion to the operator. It must be subject to some monitoring and it must be absolutely necessary. So in our view, not only is it vulnerable to constitutional law but also it does not have sufficient guarantees in international law to reassure Canadians.

And finally, our third point is that it's a very dangerous bill, not only because of the way in which it's drafted but also because it's a precedent for how it could be used in the future. Let me talk about what are the difficulties and the dangerous nature of this bill.

There is no requirement in Bill C-42 or in the regulations of the U.S. TSA for safeguards to protect the information. There's no safeguard that the TSA will not pass information to other government agencies, such as law enforcement or immigration. There is no safeguard that the TSA will not pass this information to third countries. And we know this has been a particularly difficult issue for some Canadians, Maher Arar being a case in point. There's no guarantee that the TSA will not use the information for profiling Canadians, to put them on their watchlist or the no-fly list.

I would mention to the committee that in the United States, the no-fly list is under constitutional review as we speak. It has been challenged because there are too many false positives arising. The process has been described as Kafkaesque, in the way it does not allow people to know whether they're on it, how to get off it, and what evidence is on it. So that's the danger. The danger is that Canadian passengers, Canadians, will be put at risk of being stuck somewhere with no possibility of flying back. There's no guarantee that an innocent Canadian could not be mistakenly placed on the list. There's no guarantee that innocent Canadians mistakenly placed on the list will not be prevented from flying or from being detained in the U.S. or elsewhere without due process.

It's a dangerous bill, because it gives the possibility of exemptions forever. There is no time-limited aspect to it and there are no restrictions to the number of countries to which it could be applied. I understand that the idea was that it would be applicable to the U.S. now, and that by regulations it could eventually be applied to other countries. That's very dangerous, because there's no process by which we can assess whether the privacy guarantees apply to this information. So in our view, it's dangerous as a model for moving forward on privacy.

Now, I'm sure the position will be that it's needed, that it's absolutely needed, otherwise Canadian airlines may be prevented from accessing U.S. airspace. In our view, if we're going to move to a regime of exemptions from PIPEDA, it should never be unlimited in a time fashion. It's possible to have a process of monitoring these exemptions so they are time limited and so that you keep the pressure on ensuring that the people using the information are under review.

What if, in two years, the TSA decides they want more personal information? What if, in two years, they have lesser guarantees about sharing the information with law enforcement, or they're not complying well with their own privacy legislation? What if the way in which the act has proceeded is found to be unconstitutional in the U.S.?

So our view is that a time limit on the process of exemption would go a long way toward reassuring us that we're not giving up our sovereignty and not giving up people's ability to have their privacy protected. We need a limitation to ensure there's some sort of monitoring about the way in which the situation is done. Also, we need some compensation for the people who will be caught in the Kafkaesque context of mistaken identity, who will suffer great damage if they are left without the possibility of return. So there must be some possibility of compensation for these people.

Finally, in our view, the way that the bill does not sufficiently capture the essence of the protection of privacy invites us to go back to do better homework on this. It's not necessary to proceed too quickly, since the matter is before the Supreme Court of Canada.

I will conclude by reading our last memo.

We recommend that Bill C-42 in its current form not be passed. It represents a violation of the right to privacy. It's not rationally connected and proportional to the objective of aviation security. It's just too dangerous.

We further recommend that any sharing of passenger information for overflights be subject to existing legal safeguards in the charter, including safeguards relating to the use, sharing, retention, redress, and access to information, and the correction of the provenance of any information used to match names to the watchlist in existence.

Merci beaucoup.

[The Chair, Conservative, Merv Tweed]

I call the meeting to order. Good morning, everyone.

Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 35.

Our orders of the day, pursuant to the order of reference of Tuesday, October 26, 2010, are to consider Bill C-42, An Act to amend the Aeronautics Act.

Joining us today as witnesses, from the National Airlines Council of Canada, are Mike McNaney, member of the board of directors, and Joseph Galimberti, also a member of the board.

From the Tourism Industry Association of Canada, we have David Goldstein, president and chief executive officer; Kevin Desjardins, director of communications; and Catherine Sadler, manager of research.

From the Canadian Civil Liberties Association, we have Sukanya Pillay, director of the national security program, and Nathalie Des Rosiers, general counsel.

Welcome to everyone. I'm sure you've been given a little bit of direction by Bonnie. I'm not sure if you have an order in which you want to proceed.

Maybe we'll start with Madame Des Rosiers for roughly 10 minutes, and then we'll go to questions and answers.

I'll give you a signal when you have one minute left.

Privacy and Personal Information

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, yesterday at the transport committee, in response to my question, the Privacy Commissioner said that personal information about Canadians provided under Bill C-42 to American security agencies can be used for any purpose: immigration, law enforcement, or even sent to foreign countries.

Two days earlier, the Minister of Public Safety testified this could not happen saying, “It would be unlawful is my understanding of American law to use it for any other purpose”.

Whom should we believe: the minister or the Privacy Commissioner? When will the Conservatives come clean on protecting Canadians' privacy?

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

That's understood. Would you endeavour—I ask you this through the chair—to provide some further analysis, after the committee stops today, as to what may be considered as potential amendments to Bill C-42 and do so with some haste, because there is a time sensitivity to this issue?

And for the issues that you don't necessarily propose to be amendments to the legislation itself, what are specific regulatory issues that must be addressed by the Department of Transport in drafting its regulations and requirements under this bill?

Could you convey that through the chair for the benefit of the committee? Again, haste is an issue here, because of course there is the deadline.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chair.

We seem to be having a ground-level discussion in a tug of war between privacy and the public good. I think we can all come to an agreement that there is a value to privacy and a value to being able to protect voluntary decisions versus involuntary decisions.

I'd like to ask the Privacy Commissioner, are there any specific amendments that you would suggest for Bill C-42 that are within the Canadian purview? We've noted that there are things that are in our control and there are things that are not in our control. The sovereign right of the U.S. to maintain integrity of its own airspace is not in our control.

One, for example, would be on the issue of passenger notification. I think we currently use the U.S. law. It's U.S. rules that would enable or require Canadian passengers to be notified that their information is being shared with the U.S. government. Should there be an amendment, or should there be consideration of having Bill C-42 amended to include a requirement that the Canadian airlines share this information with their passengers, or is that already available in some other context?

[Jennifer Stoddart]

I'm sorry I haven't been able to look at this regulatory framework. Could I get back to you on this?

If we're talking about Bill C-42, we're only talking about the possibility of giving any personal information in the case of a flyover. That wasn't clear, I think, from the present wording of either that act or PIPEDA. So it's just to make that absolutely clear.

[Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada]

Yes, it was a joint meeting. In April we met with both Public Safety and Transport Canada officials together.

One of the issues that was discussed was whether legislation such as is now before this committee was necessary or whether there were other provisions in PIPEDA that would allow the disclosure. We recommended that for the sake of clarity it would be better to have legislation, as opposed to fitting it under some other exception.

We subsequently wrote the Department of Transport and the Department of Public Safety, in which we made four recommendations, and this was before Bill C-42 was introduced, one of which was to continue to press to limit collection, press to shorten retention periods, to negotiate more robust redress mechanisms, and finally, to limit the use and disclosure of personal information. So we had one meeting and we followed it up with a letter.