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.

Strengthening Aviation Security Act

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, this points out the poor negotiating skills of the Conservatives. We did not obtain reciprocity in this deal. We did not require the American authorities to require American airlines to send passenger names and record information to Canada when American aircraft fly over Canadian airspace. Why not?

I am also told that the European Union has rejected these kinds of demands by the Americans. Why Canada cannot stand up like the EU does is beyond me.

In conclusion, information that is sent and kept for a matter of days is a violation of Canadians' privacy. In the digital world when information is sent, we have no control over where that information goes. We cannot even have guarantees that it is destroyed.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Speaker, I am pleased to speak to Bill C-42. I have some concerns regarding issues of privacy as well as the fact that the government introduced this bill on the last day of sitting, June 17.

We are all concerned about security issues and balancing that with privacy issues. On the issue of providing information to a foreign government, it would be done when a plane lands in foreign territory. If a Canadian were to fly from Toronto to New York, information would be provided.

However, what is being proposed is that if, for example, a flight from Toronto to Vancouver went over American territory, personal information, the name and details of the passengers, would be given to American authorities. This is not only outrageous, but a violation of Canadian sovereignty and the rights of Canadians.

The question raised in the House on a number of occasions regarding Bill C-42 is as to why we negotiated such a bad arrangement. The Americans would basically have a free hand to know who is going to be travelling over American territory without the flight even landing there. In fact, the Americans can keep this information for up to 99 years, depending on the situation. This is an obvious concern.

To divulge this information is unprecedented and would certainly weaken Canadian sovereignty. It would mean that the information of people on flights anywhere in this country that go over American territory would be disclosed to American authorities.

At the Standing Committee on Transport, Infrastructure and Communities in May, the Assistant Privacy Commissioner noted her concern that the information could be kept from 7 days to 99 years. This seems highly excessive. The information may not be used just for the issue of security, but could be used for other purposes. That is the big question: What other purposes would it be used for? For example, it could be used for law enforcement or immigration issues and not necessarily for the purpose for which it is intended. That is where many Canadians have concerns.

In the Aeronautics Act we also have the legislative authority to create a no-fly list. I have never understood this. We are saying people cannot fly, but they can board a passenger ship, train, or use an automobile. Apparently they are only a threat in the air and not a threat on a ship or train. If a person is not allowed to fly, why would he or she be able to take other modes of transportation? The government must think that only people who fly are potential terrorists.

Canadian airlines disclose information when going to another country, but the fly-over issue is the crux of the matter.

Canadians value their privacy. We tend to be asked for a lot of private information. When people go to a store they might be asked for their social insurance number. The social insurance number is only given for government programs and not because someone wants to buy a piece of furniture, yet my constituents have been asked for their social insurance number. People are asked for information that is not germane to the issue at hand. With regard to the fly-over situation, a number of my constituents have voiced concern.

At committee the Liberal Party made three amendments.

First, the House of Commons should be required to conduct a review of these measures two years after the date of coming into force and then every five years. That oversight provision is important. It has been done in other legislation and is something that should be included.

Second, this data transfer would be limited to the U.S. in legislation. The original version said it could be forwarded to any government. It is going to be only to the United States.

Third, the airlines and travel agents would be required by Canadian law to inform passengers of this impending data transfer before a ticket was purchased. That is important. Canadians need to know that if they board an airplane which will be flying over a particular territory in the United States that their information is going to be given away. The Privacy Commissioner has pointed out concerns with regard to this.

This bill amends the Aeronautics Act to allow an operator of an aircraft that is going over, in this case, the United States to provide information. The amount of information to be given to the United States is clearly of concern.

I would hope when the Prime Minister is in Washington at the end of the week that this issue will be raised with the President of the United States. Unfortunately, the Americans have the impression that terrorism has somehow emanated from this country.

We all remember then-senator Hillary Clinton's comments about 9/11, the porous border and the terrorists who had crossed the border from Canada, which of course was not true. We have to be concerned about the comments yesterday by Senator Lieberman of Connecticut that the northern border of the United States is more porous than the southern border. This impression continues. We seem to be playing into this by suggesting that we have to provide information to the Americans.

When we deal with aviation regulations, we usually are talking about domestic regulations. In this case it is actually a security program dealing with another country. The collection of information is paramount. Again, this is unusual because it is not for domestic purposes. It is dealing with a foreign country.

Sovereignty is important. In international law, sovereignty of a country extends into airspace. We are abrogating that by allowing information to be given. There may be a change in weather and the route would have to change. The passenger would not know that in advance, obviously. Privacy and citizen rights, et cetera, are at stake.

There is the whole issue of balance between security and privacy. It would appear the government has simply caved in when it comes to this. Had it not been for my Liberal colleagues on the transport committee, we would have had a pretty wide open situation for turning over information to the United States. That is a concern.

There are issues about security at airports. I do not know if people feel any safer because they go through scanners at the airports. In Narita International Airport in Japan, the security initially is done before people get to the airport. Passports are checked outside the airport and metal detectors are used on vehicles. All that is done in advance. In Canada we wait until people are in the airport. Then we shake down some elderly individual or some 15-year-old kid, instead of dealing with the practical needs for security.

This legislation is flawed. Although the amendments enhance the legislation, I still have concerns with regard to the issue of turning over any personal information to a foreign government, and in this case when people are simply flying over a country. We all understand if the flight is landing in the country but when it is just flying over it, it seems to be questionable at best, particularly if the information is not being used strictly for that purpose. It could be used for other purposes, and Canadians would not necessarily know what it is being used for. That raises concerns. Why would the information be kept for up to 99 years? That is a concern.

The legislation has received some improvements because of these amendments, but again there is still the issue of whether we should be caving in to the United States and giving out personal information which is not done elsewhere.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I know my colleague in the Liberal Party is a man who has grave concerns about privacy issues. I want to thank him for speaking to this bill. Although he is not on the transport committee, in his role he would understand some of the issues surrounding this bill very well.

In June 2007, the European Union data protection supervisor wrote a letter giving four concerns about the developments of these data transfers. One of them was the use of the letter by the U.S. to avoid binding treaties. Canada's overflight exemption is based on a diplomatic letter of understanding.

My colleague has had a fair amount of experience in foreign affairs. Does he think we should be turning over Canadians' private information on the basis of a diplomatic letter of understanding? Is this not a situation that is fraught with hazard for Canadians?

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Speaker, I have had the pleasure to work with my colleague for many years not only in the House but also in municipal government in the past. He raises a very important point with regard to the European Union.

There is no question that basing it on a diplomatic note not knowing the purpose other than information is given but that it could be used for law enforcement or immigration purposes is far too broad. As my hon. colleague well knows, a diplomatic note alone is not sufficient in terms of the security we need as Canadians and in balancing this privacy issue. That is something that would have been helpful had we been able to get that into the bill.

I know legislation is never perfect, but it is better to have a bill which addresses these concerns. This bill was introduced on the last sitting day in June and here we are at the beginning of February rushing it through. I wonder whose agenda this is. Is this the government's agenda or someone else's in this case?

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, it appears as though the Conservatives gave away the store when negotiating with the United States on this agreement.

In the committee hearings, when Mark Salter, a professor at the University of Ottawa, made a presentation, he complimented Canada for having set a high global standard for the use of the PNR in particular with the Canada-EU agreement in relation to PNR matters. He said, “This agreement is praised by both Canadian and European data protection authorities because it has specific time periods for the disposal of data”, not the 40 years that this other agreement with the Americans has. He went on to say:

[I]t limits the data's use, and it limits in particular the individualization of that data. The information is rendered anonymous, which allows the security services to build up the profile without attaching it to any one individual. This has become one of the global standards for international treaties on PNR agreements, and we are moving away from that high standard with the passage of this legislation.

I would ask the member whether he agrees with Professor Mark Salter of the University of Ottawa who presented to the committee and gave a very good argument as to why Canadians should be looking at what they signed with the Europeans as opposed to what they are now proposing with the Americans, where they just rolled over?

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Speaker, I had an opportunity to review some of the testimony and Professor Salter's comments and they certainly jibe very much with the Privacy Commissioner's concerns. It is even worse than the member said because in fact the information would be held from seven days to 99 years. What the member pointed out and what the professor indicated very strongly is that is more of what we should be looking at rather than giving the store away.

I say again, when the Prime Minister is in Washington on Friday, this should be one of the priorities because we keep giving away information for purposes other than what it should be used for.

I agree with the hon. member that had that testimony been implemented as one of the amendments to the legislation, it would have been most helpful in providing the kind of security and privacy that Canadians would expect from their government.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I am rising to speak to Bill C-42, An Act to amend the Aeronautics Act. I have heard concerns raised daily by members in this House that make one wonder how on earth we can even move forward to vote on this bill. We are hearing about countless concerns that were raised in committee and countless additional concerns raised by other nations about such proposals where there were better negotiations.

What would Bill C-42 provide? Even if we choose a flight that does not land in the United States as we prefer to fly direct to another nation, if we are flying over the United States of America, the airline still has to provide private information about us to the United States of America.

We have heard in the House today that not only is this information being freely given with no strings attached, but the United States of America will hold the information for 40 years, despite the fact that we may be on a flight travelling to another country for a couple of days or even a couple of months. It is absolutely reprehensible.

It is very important, as some of my colleagues have pointed out, to consider Bill C-42 in the overall context of the additional U.S.-Canada border security initiatives under discussion, for example, a proposed common perimeter, with implications for greater sovereignty intrusions. Perhaps that is the reason the United States is not demanding the same information if we are flying from Edmonton to Ottawa over U.S. airspace. It is only if we choose to take a holiday in Cuba and fly over the United States that it wants the information.

We must keep in perspective who would be doing the border checks and interrogations. It would be U.S. officials, not Canadians.

Today it has been revealed that in discussions between our Prime Minister and the President of the United States, one of the matters being raised by the U.S. is the potential demand for visas for Canadians who visit the United States of America.

It is very important to hold back on voting on the bill and to have the overall review that is being proposed by some members without delay. Why wait several years? It sounds as though we are getting a raw deal compared with the negotiations reached by other nations.

The very intent of Bill C-42 to provide the free and ready uncontrolled access and use by the United States government to private information about Canadians, as has been argued by a number of expert witnesses before committee, violates our constitutional rights set forth in the Canadian Charter of Rights and Freedoms.

We must also keep front of mind that the information provided is intended to allow the U.S. to add Canadian names to the controversial no-fly list. We have heard case after case of Canadians being added to the list and all their rights removed, including even the ability to earn an income or people to assist them.

Witnesses who testified at committee advised that in considering such intrusive measures, it is absolutely incumbent on the government to seek limits, so far as possible, on the erosion of charter rights. At a minimum it should call for safeguards on the use and sharing of the information.

What does the Canadian Charter of Rights and Freedoms provide? First and foremost, the charter specifies that Canada is founded on the principles that recognize the rule of law.

What does the rule of law mean? That is the difference between a dictatorship and a democracy. Under the rule of law, we are governed by Canadian laws, not foreign laws. Under the rule of law, the rules that govern our nation are made by duly elected officials, the majority of whom choose those rules, and decisions are based on those rules.

The charter provides the right to security of the person, including the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The charter provides the right to notification that a person's rights are to be interfered with.

The charter provides the right to be heard.

The charter provides to Canadians the right to be secure against unreasonable search or seizure.

The charter provides the right not to be arbitrarily detained or imprisoned.

All of these rights are being impinged on in a major way by this fly-over rule and list.

The charter provides the right not to be arbitrarily detained or imprisoned, and if detained, the right to be promptly informed without unreasonable delay of the reason.

The charter provides the right to be presumed innocent until proven guilty. Clearly, this is being violated by the fact we are all deemed guilty and the U.S. needs the information about every traveller, whether an 82 year old or a 15 year old.

The right to mobility is something that we forget, which is very important to a fair and effective economy in Canada. The rights to mobility include the right to enter, remain and leave Canada.

The provisions of Bill C-42 would allow information about Canadians to be shared with U.S. officials without notice and without consent, including the U.S. right to pass on that information to other nations. There would be no right of appeal, no right to access one's file held by the airline or by the U.S. government in order to verify and ensure the correctness of that information. Clearly, the information may be false or based on hearsay, and we have already seen examples of Canadians being added to the no-fly list where, clearly, the information was garnered under torture, with no right to access privacy rights accorded to citizens of the United States under U.S. law.

This bill, as mentioned, would expand the duties of operators to provide additional information in their control for a flyover of a foreign country en route to another. Regardless of Canadians' efforts to avoid the imposition of U.S. security measures or delays on their holidays to Mexico or Cuba, or a business trip to another nation, this new law would require airlines to provide personal information and any other information they may hold. Absolutely no provision is made requiring the airline to make that information available to travellers, nor does it provide any procedures to access that information. These and other issues were raised by witnesses appearing at committee and, clearly, ignored.

As was pointed out in testimony before the committee reviewing Bill C-42, the constitutionality of the no-fly list is currently being challenged in U.S. courts and it may be wise to await the outcome of these proceedings. As other members of the House have pointed out, the bill has been delayed already, so what is the rush? Should we not stand back and consider the ramifications for Canadians' personal security?

In my previous positions working with border security and enforcement personnel in discussions on shared intelligence as being a useful opportunity to detect violators where we have trans-boundary illegal activity, those measures to share intelligence were pursued in the context of clear constraints on sharing access and storage of the information, even among duly appointed enforcement officials. Given the consequence of the no-fly list, similar conditions seem all the more critical to ensure the protection of Canadians from unnecessary intrusion in their constitutional rights.

So many yet unresolved concerns with this bill have been raised in committee and in the House over the last few days, one wonders how it could proceed through Parliament without the basic safeguards that have been granted to other nations.

In the very least, given these issues and concerns, I call upon the members of the House to support the amendment providing for a timely review, particularly in the context of the ongoing discussions on security measures.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I want to compliment my colleague for her excellent presentation on some of the legal issues surrounding this.

Just recently I had to deal with a case where a resident of the Northwest Territories was denied admission to the United States with his family because of a minor drug offence that occurred when he was quite young. He could not go with his family on a holiday to the United States when he tried to cross the Alberta-Montana border.

Testimony in committee indicated that the information the U.S. would be getting from us could be applied for any purpose that it may choose or deem. Within the United States there is zero tolerance for drug offences, which weighs heavily on many Canadians.

How does this sit with Canadian law when we have a Canadian person on a Canadian plane, under the rule of law of Canada, being taken off that plane, perhaps for laws that are in force in the United States and have nothing to do with Canadian justice?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, as one of my colleagues expressed, the member for Western Arctic has been an incredible proponent for the rights of Canadians and improved and safe transportation. I appreciate his efforts and he is a great neighbour to the north.

It is an important question. As I mentioned at the beginning of my comments, we are proud that we are democratic country and operate by the rule of law. What that means is that Canadians are governed by the rules enacted by the House, and not by any other nation. It becomes particularly critical when we choose to travel to another nation. For example, a lot of Canadians choose to travel to Cuba, a nation to which the United States restricts the travel of its own citizens.

I know a lot of people who have been looking into contracts to assist Cuba develop its economy. Could reprimands be issued or problems arise for those citizens in their dealings with U.S. contractors because of the information passed on?

Clearly, this could result in significant violations of the basic rights afforded to Canadians, and we really should be looking to the types of conditions that were imposed by the European Commission.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, clearly what the Americans are up to is data mining. In fact, that is probably what is going on too with the Canada-U.S. agreement, but there is a big difference between what Canada negotiated with the European Union and what we are dealing with in the United States.

To the United States, they are giving over all of the PNR information, and it is attached to names. Moreover, the Americans can keep the data for up to 40 years. Yet with the European Union, the agreement has time periods for the disposal of data, not 40 years but a matter of days. It also limits the data's use and it limits, in particular, the individualization of the data. The information to the Europeans is rendered anonymous, allowing the security services to build up a profile without attaching it to any one individual. Therefore, they are maintaining the individual's privacy in the European agreement. That is—

[The Deputy Speaker, Andrew Scheer]

I will have to stop the hon. member there to make sure the member for Edmonton—Strathcona has a chance to reply.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, that is a very important issue. Even more important than the time limitation on the information is the very demand for the information with no limitations.

What I am finding profoundly hypocritical is that in one breath the government is saying it needs to open up the borders for trade and to moving goods across it more quickly and, at the same time, it is trying to restrict the movement of ordinary Canadians across those borders.

When I was the head of law and enforcement for the North American Commission for Environmental Cooperation, I had the privilege to work with officers who were trying to share intelligence and better track the illegal movement of hazardous goods across our borders and the trade in endangered species. I am sad to say that important intelligence work is being made a sidebar by this threat of terrorists. We seem to be overly preoccupied with it and are now imposing unreasonable rules on ordinary citizens.

We need to take a breath and stand back and take a closer look at the direction we are going in.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Mr. Speaker, as tourism critic for the New Democratic Party and, even more importantly, as a Canadian citizen concerned about Canadian privacy rights and Canadian sovereignty, I feel it is my duty today to speak about the serious implications that Bill C-42 would have for Canadian travellers taking international flights. It is disturbing but not surprising, unfortunately, that the Conservative government would even think about introducing such a bill.

It might be reasonable to assume that foreign governments would want carriers to provide the names and personal details of airline passengers arriving on their soil. That information is already given by airlines, including for stopovers and passengers in transit.

However, Bill C-42 would go much further. Bill C-42 would have airlines give over the personal information of all passengers to a foreign country, the U.S.A., in which they are not even landing. Just flying over the U.S.A. would be enough.

Let us explore some of the implications of the bill.

Apparently, passengers leaving Canada on a vacation to Cuba, for example, could have their name, birthdate and over 30 other pieces of personal information subject to screening by Homeland Security in the U.S., which would involve running that information through various U.S.A. government databases, including the infamous and notorious U.S. no-fly list. If one's name is not on one of these American lists, U.S. Homeland Security will tell the Canadian airline that one may be issued a boarding pass.

However, we have all heard the horror stories of people with a similar name to someone on that million-name list, or who have been put there by mistake, never to be taken off, especially if they have the same birthday as someone with the same name on that list.

If one is caught up in this mess, one might be questioned, delayed or barred from the flight or, effectively, banned from all flights leaving Canada, if they go over U.S. territory, from then on.

There are already examples of significant misuse.

The standing committee heard the story of Hernando Ospina, a journalist with Le Monde Diplomatique, whose Air France flight from Paris to Mexico was diverted to Martinique just because he wrote an article critical of U.S. foreign policy. And there is the story of Paul-Émile Dupret, a Belgian researcher with the European Parliament whose flight from Europe to the World Social Forum in Brazil was diverted, not because he was a security threat but because he campaigned against the transfer of European travellers' information to U.S. authorities.

Will I be on the no-fly list after this speech?

How can the government assure Canadians that this type of political misuse will not happen if Bill C-42 is passed?

Apparently, the U.S. told the government it needs everyone's personal information so it can check it with the various lists of people it does not want flying, so there will be fewer false matches and problems.

Apparently the U.S. told our government, “Let us clear your passengers for you”, which is what the U.S. seems to be saying, and our government is going along with it.

Is it laziness? Just let someone else take control of our security and give over control in the process. In losing control of our own air security, we would have no idea why particular passengers were barred from going on vacation to Cancun. We would simply have to accept that they would not get to fly internationally any more, because we have given a foreign government a veto over Canadians travelling abroad.

I know members of the government have been arguing that we have to give up some of our sovereignty if we want to have security, that the cost of our safety, just this time, is the freedom of movement of our citizens.

It reminds me of Benjamin Franklin's famous saying:

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

That is ironic, because this bill will not improve the security of Canadians an ounce. It does not have our security interests in mind at all. If it did, there might be some clause for sharing of information instead of it all being one way. U.S. carriers could be giving us their passenger lists, too, so we could make decisions about our security. However, reciprocity is nowhere to be found in this piece of bad Canadian negotiation.

This is ridiculously one-sided. Only Canadian passenger information is being sent to the U.S.A. All it does is send our personal passenger information abroad for governments to do with as they may. They could keep that information forever or pass it along to other groups or governments or use it to prosecute Canadians for their own purposes.

We will not have any control over it. It is yet another significant erosion of Canadian autonomy by the Conservative government.

Why should members in the House, representing Canadians, support the legislation if it will not even improve the security of Canadians? We are not elected to represent the interests of foreign governments, at least not the members in my party and not this member from Thunder Bay—Superior North.

Gutting the privacy rights of Canadians for no improvement in our safety is a foolish bargain. It is no wonder the Canadian Civil Liberties Association called the bill:

—a complete abdication to a 'foreign government' of Canada's duty to protect the privacy of Canadians, and a cessation of existing Canadian legal safeguards. This abdication and cessation of privacy protection is unacceptable and dangerous.

This was what it said at the transport committee in November 2010.

The legislation rolls back, and it rolls over, Canada's privacy laws in order to get airlines to pass along the names and personal information of air travellers to a foreign government. It gives a foreign government the ability to tell our air carriers who can and cannot fly on flights that do not land in its country.

We in my party are very supportive of thoughtful efforts that genuinely increase safety and security for Canadians, but the bill does neither. Bill C-42 is an egregious invasion of the personal privacy of Canadian air passengers and an abdication of Canadian sovereignty by the government.

Our very own chief justice said, in 2009, that,

One of the most destructive effects of terrorism is its ability to provoke responses that undermine the fundamental democratic values upon which democratic nations are built.

This faulty legislation undermines both the sovereignty of Canada and the privacy rights of Canadians. There is no evidence that it will even increase security. I invite all members of the House to keep the interests of our constituents and all Canadians in mind and vote against Bill C-42.

The House resumed consideration of Bill C-42, An Act to amend the Aeronautics Act, as reported (with amendment) from the committee, and of the motions in Group No. 1.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, it is not simply Canadian citizens who will be impacted by this, but it could also be Canadian foreign policy and it could be those people who seek refuge in Canada.

Mr. Edward Hasbrouck of the Liberty Coalition, a U.S.-based civil liberties group, who gave testimony in our committee, said:

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.

If we have a situation where, such as in many of the countries in South America or Central America, people head to the airport to escape a tyrannical regime or unfair treatment in that country, they could be turned down by the U.S. government regardless of what the Canadian government wanted in this instance.

Once again, not only is this an abrogation of the personal rights Canadians, but is it not quite clearly an abrogation of our right as an independent country to set our own foreign policy?