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

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I can assure the member that certainly the irony is not lost on me regarding Bill C-42, An Act to amend the Aeronautics Act, in comparison with the long form census controversy. The lack of intrusion on the long form census and the so-called intrusion in this bill, I guess the ideology does not rub together. Nonetheless, I appreciate the member's comments.

I do appreciate the fact that in this particular case obviously there is more information which, under different circumstances, people would not want to sacrifice to any airline or any particular individual regarding their privacy. We find ourselves in a new age, a new era. Therefore, I think that the balance which needs to be achieved is close to being achieved here.

The House resumed consideration of the motion that Bill C-42, An Act to amend the Aeronautics Act, be read the third time and passed.

STRENGTHENING AVIATION SECURITY ACT

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, after law school I had the opportunity to work with Professor Wayne MacKay of Dalhousie University, who was working on a couple of papers having to do with anti-terrorism law and privacy and where the two meet. One paper that he produced from this research was for a lecture at St. Thomas University, in New Brunswick. It was titled, “Human Rights in the Global Village: The Challenges of Privacy and National Security”.

Despite having completed my law degree at that time, working for Professor MacKay was the first time I had ever really considered the issues around privacy law. The research I did then, the stories I heard, and the newspaper articles I read had a huge impact on my thinking about law generally.

Bill C-42, An Act to amend the Aeronautics Act, raised all the red flags that could possibly be raised for me when it comes to the balance between making our global village function more efficiently and our right to privacy.

I would like to start by reading the opening paragraph from Professor MacKay's lecture at St. Thomas. It provides a good framework for thinking about this bill, a bill that may touch upon our privacy rights. He stated:

In the 1960's renowned Canadian academic, Marshall McLuhan, coined the term “global village”. McLuhan's vision of the global village was that the world was a community in which distance and isolation had been dramatically reduced by electronic media. In the global village we are crossing borders physically, with travel and trade, and we’re also crossing borders virtually with technology, like the phone and internet. There are many benefits to living in the global village but there are also casualties of this new world order, and one of them is privacy.

One of the casualties of this new world order is privacy, and one of the casualties of Bill C-42 is privacy. Bill C-42 is nothing more than an opportunity for data mining by foreign security services, primarily the United States, and it is an unwarranted invasion of the privacy of Canadians.

I would like to spend a bit of time discussing what the bill would actually do, and then provide some of my comments about this bill.

Bill C-42 amends the Aeronautics Act to allow airlines to send personal information about passengers to foreign security services. The information that would be forwarded is determined by requirements laid out in secret agreements with other countries. The details of these agreements have not been released. However, it is known that Canada has signed or is negotiating agreements with the European Union, Mexico, Brazil, Argentina, Chile, Panama, the Dominican Republic and the United States.

Details of the agreement between the European Union and the United States for the same information transfers are troubling. That agreement allows, first, that the information forwarded would be the passenger name record, which is the file that a travel agent creates when booking a vacation, and it could include credit card information; names of the people a passenger is travelling with; hotel or other booking information, such as tours or rental cars; and any serious medical condition the passenger might have. Second, the information collected can be retained by the United States for up to 40 years. Third, this information may be forwarded to the security service of a third nation without the consent or notification of the other signatory. Fourth, no person may know what information is being held about him or her by the United States, and they may not correct that information if there are errors, which is hard to believe. And fifth, the United States may unilaterally amend the agreement as long as it advises the EU of the change.

Apparently there has already been one amendment: all documents held by the EU concerning the agreement will not be publicly released for 10 years, which means there can be no access to information requests.

As I said, in essence this bill would allow data mining of Canadians' personal information by foreign security services. There is the danger that unless this bill is agreed to, the United States could close its airspace to Canadian aircraft. While this threat may result in pressure to pass the bill, it is unlikely the United States would carry through with this threat.

The Conservatives have put the spin on this bill that it is necessary to fight terrorism. There is not one single example of how this data mining has caught one single terrorist, or any other criminal.

In fact, we have many examples of how this type of information can be misused. We have heard about it before, but I will say this name again, Maher Arar, who is the perfect example. If members will not take my word for it, I would ask that they listen to some of the testimony that was heard at committee. It was clear and it was straightforward.

It is hard to imagine that the Conservatives are still supporting this bill. We do not really know what the Liberals are doing, but we will find out. We think they are supporting it.

I will read some excerpts from the committee. There is a very short excerpt, but it is to the point.

Jennifer Stoddart, whom we all know quite well as the Privacy Commissioner of Canada, said very simply:

Bill C-42 raises important sovereignty issues. We are not questioning the American government's authority to implement its secure flight program. International law is clear that a state's sovereignty extends to its airspace. However, the Canadian government has a duty to protect the privacy and civil rights of its citizens.

There we have it: “the Canadian government has a duty to protect the privacy and civil rights of its citizens”.

Dominique Peschard, the President of the Ligue des droits et libertés, testified before the Standing Committee on Transport, Infrastructure and Communities. Here are some excerpts from his testimony:

It is an illusion to think that the information provided under the Secure Flight program will be protected, that it will be destroyed or that it could be corrected in the event of any error. On the contrary, that information will be added to the data bases of the U.S. intelligence agencies and will be compared with information held by all the agencies I've just mentioned to determine whether such and such a person should be prohibited from flying over the United States or even placed on another list.

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

Bill C-42 raises some fundamental issues about Canada's sovereignty and the protection of Canadians' rights and freedoms. The Parliament of Canada has a duty to defend those rights, rather than submit to the United States' endless demands allegedly in the name of security.

I thank my colleagues for their support of my French. I do try.

There is a great quote that I want to use. Nathalie Des Rosiers from the Canadian Civil Liberties Association said in her testimony:

Certainly to the extent that there is an expectation of privacy protected by the charter, this bill would not meet a section 1 challenge--

Members probably know that section 1 says that something that violates the charter could actually be saved, because it has certain importance for the Canadian public.

She went on to say:

--because it has no limitations. It does not adequately protect the problems that may arise with the disclosure of information, and so on.

The first point is there is a constitutional vulnerability that should be looked at before we go too much further. There is no requirement in Bill C-42, or in the regulations of the United States TSA, for safeguards to protect the information. There is no safeguard that the TSA would not pass information to other government agencies, such as law enforcement or immigration.

There is no safeguard that the TSA would not pass this information to third countries. This has been a particularly difficult issue for some Canadians, Maher Arar being a case in point. There is no guarantee that the TSA would not use the information for profiling Canadians to put them on its watch list or the no-fly list.

Ms. Des Rosiers went on to say:

I would mention to the committee that in the United States the no fly list is under a constitutional review as we speak. It has been challenged because there are too many false positives arising.

It is interesting to note that Nathalie Des Rosiers does point out that it is under review in the United States.

We also had some interesting testimony at committee from the Liberty Coalition, a U.S.-based civil liberties organization, represented by Edward Hasbrouck. He said:

Unlike the case in Canada, where someone denied travel is given formal notice of that decision and has rights to appeal it, those no-fly orders in the U.S. are entirely extrajudicial. No one in the U.S. has yet obtained court review by any U.S. court of a no-fly order. It is U.S. government policy not even to admit that they have issued such an order, and that includes those denying passage on flights overflying the U.S. that were not scheduled to land.

The former Secretary of Homeland Secretary, Michael Chertoff, is on the public record as saying he believed that no-fly decisions should not be subject to judicial review, and the current U.S. administration has done nothing to repudiate that perspective

While the consequences for anyone are very serious, including those U.S. citizens trapped abroad who are currently unable to return because they are not allowed to fly and have no other way back to the U.S., they are perhaps most draconian for refugees and asylum seekers.

We should be very clear that the enactment of Bill C-42 would grant the U.S. government de facto veto power over the ability of virtually anyone to obtain sanctuary in Canada, since in most cases it is impossible to get to Canada to make a claim for political asylum or refugee status without overflying the U.S. That power of the U.S. would be exercised at the worst possible point, while a refugee is subject to the persecution of a regime they are trying to flee.

The Liberty Coalition went on to say:

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

That definitely smacks of all of the terrible accusations of how the mandatory long form census has violated our rights as Canadian citizens. God forbid the government know how many bathroom one has.

Yet, here we are, by law, Bill C-42, allows the government to find out whether a one requests one bed or two.

First of all, it is pretty unbelievable that we would sign on to this. It is shocking that we would. What is even more unbelievable is the incredible hypocrisy of saying no to a long form census that is just trying figure out what the population of Canada looks like, what it is doing, what its needs are and how Canadians are working. This information is to better design programs, to better run the government, to better serve the needs of our people. That is not allowed, yet the U.S. can know who we are sleeping with. It is mind boggling to me.

I would like to read testimony from Roch Tassé, the national coordinator of the International Civil Liberties Monitoring Group. We heard from Canada and the U.S. in terms of civil liberties groups, but this is an international group. Mr. Tassé testified:

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

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

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

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

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

Again, that was from Roch Tassé, National Coordinator of the International Civil Liberties Monitoring Group.

These are pretty ominous predictions.

I will wrap up by saying that in 2006, internationally acclaimed Canadian author Rohinton Mistry cancelled his book tour after being repeatedly harassed while flying to and from the United States. Mr. Mistry is not a terrorist. He is not a criminal. He is a national treasure. However, he is a very unfortunate victim of flying while Arab or, as it has become, Arab-looking or with an Arab-sounding name or having any skin tone other than the ruddy white of the British Isles and having a name that would be uncommon on the Leave It To Beaver show.

Rohinton Mistry's critically acclaimed novel A Fine Balance sums it up. We need a fine balance when we are weighing the global village's needs against our privacy rights and this bill gets it wrong.

[Brian Jean, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, I did hear one thing from the NDP member that was correct; that is, she labelled this an issue of Canadian sovereignty. She is right. It is an issue of Canadian sovereignty. Just as the United States expects us to respect its right to its sovereignty and its right to its air space, we expect it to respect our right to our sovereignty and our airspace.

How can we expect the U.S. to do so if the NDP will not even let us pass this law in order to respect the right to sovereignty and expect the U.S. to do the same?

She asked for examples as to where this was used in the past, where the U.S. has actually filtered a list, utilized it and passed it on to enforcement agencies. For the hundreds of millions of passengers a year who pass through the U.S., we have received information from the ambassador that it has been done three times. The fearmongering by the member and by the NDP through its filibuster is simply ridiculous.

However, I will say this to the NDP member. She actually has an advantage. Because of the hard work of the Minister of Public Safety, he received an exemption for Canada, the only country to receive an exemption, for those flights that fly from Vancouver, for instance, to Ottawa, they actually pass through U.S. airspace. The member takes advantage of that. I would think she would stand and say “Thank you, minister, thank you, Conservative government, because you got an exemption for us and your hard work is paying off for Canadians, keeping us safe, keeping our economy strong”. That is what she should be standing and doing right now.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I am not sure I heard 100% correctly, but I think the member said that the minister has worked hard to get an exemption for us in flying to Ottawa.

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

If you fly over U.S. airspace.

[Megan Leslie, NDP, Halifax, NS]

I was just checking.

Mr. Speaker, that is the craziest thing I have ever heard.

I am a member of Parliament. We have a lot of rights and privileges that come with this role. However, we should not have preferential treatment for flying to Ottawa when we are coming here to talk about what is going on in Canada. This is nuts.

There is a British man who is stranded in Toronto and he cannot get home to England. Why? He is on a no-fly list and he cannot fly over American airspace. He is saying, “How can you tell me I'm not allowed to go to my own country?”. He has no rights here because he is not Canadian and he has been denied access to U.S. airspace. He just wants to go home.

Look at the bizarre results of blindly going ahead with this ideological bill, saying, “We have to do whatever the United States does”. We are like that little dog on The Bugs Bunny Show that is always with the big dog, saying, “We're there with you. We're there with you. We'll do whatever you want.”

It is time for us to actually stand up to the United States and do what is right for Canadians.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I enjoyed very much the speech from the member for Halifax.

The parliamentary secretary should know better than to raise what was a patent hypocrisy on this issue. First, the reality is that other countries, such as the European Union, negotiated agreements that go far beyond what Canada even attempted to get.

Second, it is simply not true, as the member for Halifax knows, that this affects just the United States. It affects any foreign state, Panama, Colombia. Any state that wants to go into Canadian bedrooms, get confidential Canadian health records, confidential credit card information, they can do it because this bill provides for it.

It is almost as if Conservatives have not even read the bill and do not even know what is in the bill. As usual, it is the NDP that carefully reads the legislation and brings forward all these concerns that are felt widely in the population.

Canadians certainly get it. The Conservatives do not and they seem beholden to this incredibly radical ideological agenda that they have to the right, where confidential information is only valuable if it is Conservative confidential information. They do not want disclose bathrooms; they want to disclose confidential health records, credit card information and who people sleep with.

I would like to ask the member for Halifax how this plays in her area of the country? How do Canadians react once they hear about it? It is true that members of the press gallery have not been doing their due diligence. They should be reporting a lot more on this. They are starting to wake up. They are starting to understand the implications for Canadians' confidential information.

When the member raises it with the public in her riding of Halifax, how do Canadians react to this wholesale disclosure of Canadians' confidential information?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I thank the member for his question and also for the incredible work he has been doing on the international trade file and keeping the government honest.

The member points out that the media have not really cottoned on to this idea that there is a problem with Bill C-42. I do not think they have even reported anything about Bill C-42, holus-bolus.

When I talk to people in Halifax about it, people cannot quite believe it. They cannot quite believe, first of all, that it is being introduced; second, that it continues to be supported; and third, that it has support from more than one party in the House.

We have an international airport in Halifax. We do have to fly over American airspace to get practically anywhere because of our location. People go to the international airport and have to deal with issues like this. They cannot believe that the government would continue to support the total abrogation of our rights, the total handing over of our personal information: who we are sleeping with, where, in what hotel and what kind of car we rented.

The response from people in Halifax has not been as strong as I would have imagined because I think people are still in the disbelief stage. I think that is probably true across Canada. Canadians have to wake up because this is going to be a dangerous thing that we are getting into. We need to do everything we can to stop it.

[Dean Del Mastro, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, what is dangerous is not adequately screening people getting on airplanes.

What I find really remarkable is that when it comes to travelling safety, when I buy an airplane ticket, I want people to know I do not pose a threat to that aircraft and I do not pose a threat to the United States. I want them to know that. I am as open as a book.

I do not see the bill as an invasion of my privacy in any way. We work with the United States on continental security. Approximately 3,000 people died on September 11, 2001: parents, brothers, sisters, children, sons and daughters. We have to be awake to that reality.

When the people of Halifax look at what is in this bill and at the protection it seeks to provide to the Americans, it is their airspace. We work with them on continental security. We are partners in the fight against terrorism. We are partners in protecting our citizens and making sure that no more sons, daughters, mothers, fathers, brothers or sisters are lost to terrorism. That is responsible.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, the result is we will become a police state. This is the craziest thing I have ever heard.

When I talked about doing the research with Professor MacKay on terrorism and privacy rights, one other thing we were looking at is the Office of the Superintendent of Financial Institutions. It actually has to report names of people with bank accounts that have names matching a certain list of “identified terrorists”. It is really quite incredible because it ends up forwarding hundreds and possibly thousands of names every year of people who have vaguely similar names. Good luck to anyone living in this country whose first name is Osama.

We have this situation where names are being forwarded, people's bank accounts are being shut down or they are being told they cannot board an airplane because they happen to have the same initials of a known or suspected terrorist. It is craziness.

The worst part about it is there is absolutely no recourse. All of us in this room believe that if we were falsely accused of something we would at least have the right to stand up and say, “No, that is not me. That is not what happened.” There is no right to that. People cannot imagine being told they cannot fly. People cannot imagine being told they cannot go back to their home countries. Actually, people are not allowed to bring forward evidence to disprove what is being said about them.

These situations are happening all over Canada and the U.S. There is no redress. There is no way to challenge it. There is no way to bring forward evidence. We are just doing whatever it is the Americans want us to do. There is no charter right. We are absolutely just S.O.L., if I can say that. We are out of luck.

It is absolutely ludicrous.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I would like to start by addressing what the parliamentary secretary said just a few moments ago in the House.

All of us in the House were appalled by the events of September 11, 2001, 10 years ago, by the loss of life.

The reality is that the violent individuals who got on those planes were able to do so because of cutbacks in security screening at airports that had been privatized, as we know, like Logan airport in Boston, where there were underpaid baggage screeners and inadequate equipment. All of the cutbacks that took place during the Bush years had a contributory factor to box cutters being brought onto those aircraft. All of us lament the loss of life. We mourn for all who died that day.

However, the reality is that this bill has nothing to do with improving security and screening in airports so that people cannot bring box cutters on an aircraft. It has nothing to do with that. It has nothing do with all of the intelligence shortfalls that were present at that time and the mistakes that were made by the government that have been very well documented.

Since this bill has nothing to do with that, I think all of us in the House would prefer that the Conservatives stop raising that in an inappropriate way. It does not respect what happened that day. It does not respect the dead. The government tries to use that horrible day in a way to score some cheap political points. That is what the Conservatives are doing with this bill.

The bill is very simple. Proposed subsection 4.83 tells the airlines that they can provide to a competent authority in a foreign state, whether we are talking about the United States, Panama, Colombia or any other state that demands it, any information in the operator's control. What does that mean?

What is in the operator's control is the passenger name record. In the passenger name record, the health record of the individual is present. If an individual has health conditions and it is noted in the passenger name record, that information is available to those authorities through this bill.

Credit card information is available in the passenger name record and can be made available to foreign authorities. I mentioned some of them a few moments ago, the United States or Panama. Given the Panamanian government's record on the laundering of dirty drug money, it is entirely inappropriate for confidential credit card information to be made available to Panamanian authorities or to Colombian authorities.

As was noted by my colleague from Halifax, hotel reservations, including information regarding sleeping arrangements, whether it is a single or double room, and how many individuals are travelling together is also made available. This is confidential information. There is no doubt about that.

I will cite testimony from witnesses in a few moments, hopefully today but if not, when we resume after the parliamentary riding week. The confidential information that is made available to those authorities is very clearly something the vast majority of Canadians would not want to have shared. It is very clear that this is a vastly inappropriate bill.

As has been mentioned by my colleagues in the NDP, other governments were asked to do the same thing by the American administration. Other governments said no and negotiated different arrangements. Only Canada is saying it is going to make this confidential information available to authorities wherever they are in the world, no matter how corrupt the regime. That information can be made available.

What does that mean, for example, for British Columbians? The province that I come from has heavy air traffic that goes to Asia. Many of my constituents, in fact the majority of them, come from Asia. They fly to the Philippines, China, Korea and Taiwan. In flying across the Pacific, they fly across the sea waters off of Alaska.

What the government is saying to Canadians of Asian origin is that their personal information will be shared. Inevitably, for the vast majority of flights that take place out of Vancouver going through to Asia, their information, if this bill were to be passed, would be shared.

That is completely unacceptable. We have had a whole variety of cases that have been brought forward as to how people can actually be denied access to flights that they have paid for. There is a variety of individuals who will be raising those issues. I hope in the time I have today I can raise those issues.

With all that confidential information, perhaps it does not surprise me that Conservatives do not care and are willing to share that confidential information. We have seen the government talk out of both sides of its mouth on a daily basis, pretending to be about ethics and responsibility with all of the crises and scandals that we are seeing and that have been enacted on the floor of the House of Commons, even this week.

We have heard the government talk about confidentiality, concerned about the number of bathrooms that people have to report. Yet it is willing to share confidential information about what kind of sleeping arrangements in hotels Canadians are undertaking overseas.

That does not surprise me about the government. The Conservative government has been in power already far too long, and the government is desperately in need of a change.

What does surprise me is the seeming willingness of the Liberal Party to support this legislation. A previous Liberal prime minister very boldly, I thought, stood in the House and said that the state has no place in the bedrooms of the nation. That was a seminal moment in our nation's history. That was a courageous statement that he made as justice minister. He was a Liberal prime minister.

Today's Liberal Party is willing to sell out that confidentiality. It is willing to say that not only the Canadian state has a place in the bedrooms of Canadians when they are travelling abroad, but that the Panamanian government or the American government, or the Colombian government has a place in the bedrooms of Canadians when they are travelling abroad.

This is the absurdity of the bill that has been brought forward. It shares confidential health information. It shares confidential credit card information. It shares confidential accommodation information when Canadians are travelling abroad.

It surprises and stuns me that the Liberal Party, with that heritage, is unwilling to stand in the House, as the NDP has been standing up for a number of days now, to say that this legislation is completely inappropriate. The Liberal Party that has that heritage should be willing to stand up 40 years later and continue to say that this is absolutely irresponsible and inappropriate. It should be willing to stand and say that this is not something we should adopt as parliamentarians and that the government should go back to work and negotiate the same type of agreements that other countries have negotiated with the United States.

It is not as if it were impossible to renegotiate the agreement. The government has not even tried. We have seen that failure in case after case where the government is unable in any way to stand up for Canadian interests.

The Conservative government has been called in this House by my colleague, the member for Windsor West, the doormat of North America, and it is true that it is a doormat. The Conservative government is often considered to be a bully with Canadians, but once the Conservatives go abroad and negotiate, they are doormats. We have seen that capitulation with the softwood lumber sellout. We have seen it with the buy America sellout, which gave access to American companies to Canada, but did not provide access for Canadian companies to the United States. The Canadian government has not even monitored that. It has just given up representing the interests of Canadian companies at all.

We have seen that with the $5.50 levy that has just come into place. The American tourism industry would be willing to stand with Canadians. It would be willing to advocate and we would surely get the type of agreement to remove that levy, but we have seen the government not act at all. When the government--

[The Deputy Speaker, Andrew Scheer]

Order. The hon. member will have 10 minutes to conclude his remarks the next time this bill is before the House, but it being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from February 18 consideration of the motion that Bill C-42, An Act to amend the Aeronautics Act, be read the third time and passed.

Strengthening Aviation Security Act

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I am pleased to have this opportunity to speak to Bill C-42, An Act to amend the Aeronautics Act.

I can sum up Bill C-42 by saying it should be defeated. It is nothing more than data mining by foreign security services, primarily the United States, and is an unwarranted invasion of the privacy of Canadians.

Bill C-42 would amend the Aeronautics Act to allow for an exemption for airlines from the Personal Information Protection and Electronic Documents Act; thereby, permitting them to transmit to the United States department of homeland security personal information about airline passengers.

The U.S. department of homeland security could then run this information through a number of databases to determine if the travellers should be prevented from entering U.S. airspace. If the U.S. department of homeland security determines a person may be allowed into United States airspace, then the airline is given permission to issue a boarding pass. This is the process set up under the United States secure flight program which mandates that only those the U.S. department of homeland security allows may enter into U.S. airspace, regardless if those individuals are landing in the United States or not.

While the Conservatives like to point to name, gender and date of birth as being the only items of information required, the secure flight final rules state that airlines must also provide the following information if they possess it: redress number or known traveller number; passport information; itinerary information; reservation control number; record sequence number; record type; passenger update indicator; and traveller reference number.

All of these information elements are part of the air travel system for ensuring passengers move efficiently in their travels. It is information the airline would automatically possess.

Unfortunately, it is sufficient information to allow the department of homeland security to data mine the travel reservation systems used by all airlines as these databases are physically located in the United States and the U.S. patriot act requires that they be available to U.S. security agencies, without a warrant.

Included in this information are known medical conditions of passengers, who is travelling with the specific person, and even what they ate on the airline if they ordered a special meal.

Previous to Bill C-42, this information was passed to the U.S. department of homeland security only for passengers travelling to the United States. Through a non-binding diplomatic note, Canada had secured an exemption from secure flight for domestic flights.

As almost all flights within, to and from Canada pass through United States airspace, Bill C-42 would essentially allow the United States department of homeland security to determine who may enter and leave Canada by air.

Bill C-42 would also allow airlines to send personal information of passengers to foreign security services. What information would be forwarded is determined by requirements laid out in secret agreements with other countries. Details of these agreements have not been released.

However, it is known that Canada has signed or is negotiating agreements with the European Union, Mexico, Brazil, Argentina, Chile, Panama, the Dominican Republic, and the United States.

Details of the agreement between the European Union and the United States, for the same information transfer, are troubling. That agreement allows the information collected to be retained by the United States for up to 40 years.

Under the secure flight final rule, the retention period for Canadians is seven days if no match is found in the data; seven years for a potential match; and 99 years for confirmed matches.

As I have already indicated, this information may be forwarded to the security service of a third nation without the consent or notification of the other signatory: the passenger.

The secure flight final rule also stipulates that no person may know what information is being held about them by the United States and may not correct that information if there are errors.

The United States already has such an agreement with the European Union. Under that agreement, the United States may unilaterally amend the agreement as long as it advises the EU of the change. There has already been one amendment whereby all documents held by the EU concerning the joint U.S.-EU agreement shall not be publicly released for 10 years.

This would preclude any access to information requests. In essence, Bill C-42 provides too much access to private information without any protection. As I have stated, it will allow data mining of Canadians' personal information by foreign security services.

The Conservative government seems to be inordinately influenced by what it seems to believe is a danger, that unless Canadians agree with the bill, the United States could close its airspace to Canadian aircraft. While this threat may result in pressure to pass the bill, it is very unlikely the United States would carry through with that threat. Still, Bill C-42 is being spun by the government as necessary for fighting terrorism. There is no example of how this data mining has caught a single terrorist or any other criminal.

The bill is an unacceptable invasion of the privacy of Canadians by foreign security forces. I have heard from many constituents who are very concerned that such an intrusion is an unacceptable invasion of their privacy and undermines their sense of personal security.

I believe Maher Arar is an example of how this type of information can be misused. Canadians remember Maher Arar, a 34-year-old Canadian wireless technology consultant who was born in Syria and came to Canada with his family at age 17. Maher became a Canadian citizen in 1991.

On September 26, 2002, while in transit at New York's JFK airport en route to Montreal, Mr. Arar was detained by U.S. officials, and on the basis of information provided by the Royal Canadian Mounted Police, he was interrogated about alleged links to al-Qaeda. Twelve days later, he was chained, shackled, and flown to Syria where he was imprisoned in a tiny cell for 10 months. During his captivity he was beaten, tortured and forced to make a false confession. Due to the unrelenting efforts of his wife, Monia Mazigh, and the help of Alexa McDonough, he was eventually returned to Canada in October 2003.

In January 2004, under pressure from Canadian human rights organizations, the Government of Canada announced a commission of inquiry into the actions of Canadian officials. In 2006, Justice Dennis O'Connor cleared Maher Arar of all terrorism allegations, stating that he was able to state categorically that there was no evidence to indicate that Mr. Arar had committed any offence or that his activities constituted a threat to the security of Canada.

The authorities at JFK identified Maher as knowing a person being investigated by the RCMP, but failed to further investigate the degree of this acquaintance. They made assumptions which were unjustified and they took action which would have been unjustified even if Maher Arar had been guilty of serious crimes.

Despite an apology and financial settlement from the Government of Canada in 2007, U.S. authorities refuse to accept Mr. Arar is innocent and he remains on the American no-fly list. Clearly, this is a terrifying example of how information can be skewed, misinterpreted and misused.

Many people have commented on the agreement being considered by the Government of Canada in regard to the proposed amendments to the Aeronautics Act. Ms. Chantal Bernier, assistant privacy commissioner in the Office of the Privacy Commissioner of Canada told the Standing Committee on Transport, Communities and Infrastructure in May 2010:

--privacy and security do not have to be at odds. In fact, they must be integrated. And they converge. They converge in this fashion: privacy commands that we collect as little information as possible, in a minimal approach, and as well in the effectiveness of security, in the sense that its effectiveness rests upon collecting only the information that is relevant...the right to privacy is a fundamental right that cannot be infringed upon, unless it is demonstrably necessary for the public good. It follows, then, that the collection of personal information can only occur when it is proven necessary, and it must be proportionate to that necessity...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. Finally, it must also be demonstrated that there are no less privacy-intrusive measures available to reach the same goal.

Comments to the transport committee by Edward Hasbrouck of Liberty Coalition, a U.S.-based civil liberties group, are chilling. Mr. Hasbrouck stated:

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

While the consequences for anyone are very serious, including for those U.S. citizens trapped abroad who are currently unable to return home because they are not allowed to fly and have no other way to get back to the U.S., they are perhaps most draconian for refugees and asylum seekers. You should be very clear that the enactment of Bill C-42 would grant to the U.S. government de facto veto power over the ability of virtually anyone to obtain sanctuary in Canada--

This sounds very much like the case of Dawood Hepplewhite, a British man stranded in Toronto after being denied permission to fly home. His name is on the U.S. no-fly list. Mr. Hasbrouck went on to talk about how the data collected is used. He indicated:

These data are also used for purposes of surveillance of travellers. It is not the case that the information is simply used to make a onetime decision about whether to let you fly. All of your PNRs, even if you are not deemed suspicious and are allowed to fly, will be added to the lifetime travel history and compilation of data already being kept about you as part of the automated targeting system.

Dr. Mark Salter, associate professor, school of political studies at the University of Ottawa, told the committee:

Governments want this information so that they can build profiles of not just risky passengers but safe passengers as well. Research clearly demonstrates that in the United States and the U.K., government agencies are trying to collect as much data about travellers as possible. Government agencies such as the U.K. Border Agency try to develop very sophisticated algorithms that predict not which individuals are dangerous, but what kinds of itineraries are dangerous.

What worries me about this particular legislation is that the data not only go to the destination country but may go to all states that the airline might fly over. That, I feel, is the significant change that this legislation brings, and it worries me a great deal.

Flights that use the polar routes from Vancouver to Hong Kong would have to go over Russia and China. Are we suggesting that they are reasonable destinations for the passenger data of Canadian citizens? Flights that go to Colombia or Brazil must overfly any number of Latin American countries. Flights to Dubai must overfly most European countries and some Middle Eastern countries. Is the Government of Canada confident that the destination for their data can provide adequate protection? Are Air Canada and other air providers confident of that as well?

I understand that one of the reasons for this legislation is to get around the requirements of PIPEDA for Air Canada to provide such data. What worries me is that neither the government nor other agencies have put protection in place for data that will now go abroad.

I think it is dangerous to sacrifice our privacy and our freedoms for the dream of zero risk or perfect security. This particular measure does not provide additional security for the aviation sector, and it places an additional burden on Canadian citizens who are flying...the use of this commercial data, because it is created by airlines for their use, poses clear risks to privacy and no clear benefit. There is no reciprocity among any of the other countries. We are simply making Canadians more vulnerable to the security services of other nations, and we are doing so for countries that may not have the same robust privacy legislation or commitment that we have in Canada.

Canadians' data should not be hostage to the most paranoid regime that an air company chooses to fly over. The proposed change to these data protection regulations to include overflight states dramatically increases the vulnerability of Canadians' data while offering no means of redress or appeal.

We can assume that citizens know when they travel to a particular country that they are consenting. They know they go through a visa process and a border process, so they know their data is being evaluated. However, Canadians would have no way of knowing which of the countries they flew over would get their data, what would happen to their data, or how to appeal the use of that data.

The proposed changes to the Aeronautics Act are dangerous indeed without any clear benefit to Canadians.

Nathalie Des Rosiers, general counsel of Canadian Civil Liberties Association, told the committee that there is an expectation of privacy protection 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.

The first point is that there is a constitutional vulnerability that should be looked at before we go too much further. There is no requirement in Bill C-42 or in the regulations of the U.S. Transportation Safety Act for safeguards to protect the information. There is 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. We know this has been a particularly difficult issue for some Canadians, Maher Arar being a case in point. There is no guarantee the TSA will not use the information for profiling Canadians to put them on its watch list or no-fly list.

Ms. Des Rosiers also reminded the committee that in the United States the no-fly list is under constitutional review. It has been challenged because there are too many false positives arising. The process has a described Kafkaesque quality in the way it does not allow people to know whether they are on it, how to get off it, and what evidence is on it.

That is the danger. The danger is that Canadian passengers will be put at risk of being stuck somewhere with no possibility of flying home. There is no guarantee that an innocent Canadian could not be mistakenly placed on the list. There is no guarantee that innocent Canadians mistakenly placed on the list will not be prevented from flying to or from or being detained in the U.S. or elsewhere without due process.

I have absolutely no confidence that surrendering information about Canadians to the U.S. Department of Homeland Security is either safe or wise. Disclosure to the U.S. Department of Homeland Security of personal information on passengers travelling to certain destinations, particularly Cuba, could lead to unpleasant consequences. For example, this information could be used to identify Canadian companies that do business with Cuba or to penalize travellers who have visited Cuba by consequently refusing them entry into the U.S.

How will Canada ensure that the U.S. will not use the secure flight program to apply its Helms–Burton act which imposes penalties on foreign companies doing business with Cuba? Canadians and Canadian companies have had a long-standing and very positive relationship with Cuba. Millions of Canadians have visited Cuba, and I am sure would like to continue to visit Cuba.

Over and over we have heard the warnings from reputable experts and indeed the voices of concerned Canadians. Surely the government will listen to these warnings. We need to defeat Bill C-42. Canadians deserve better than the lacklustre leadership and absence of due diligence from the government. How can anyone trust a government, its ministers and a Prime Minister so willing to jeopardize their privacy and security?

In the words of our Privacy Commissioner, “the Canadian government has a duty to protect the privacy and civil rights of its citizens”. It is time the government understood that and did its duty.