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

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I was interested in the position taken by the member from Mississauga that we should not worry about this, we had not negotiated that part of it and that we should pass the legislation anyway.

We have seen the abuse by the Americans of their no-fly list and the number of errors, and this came out at committee. Their no-fly list is still permeated with errors that oftentimes have very negative consequences for the people who are the subject of those errors.

Could the member, who has been here for awhile, talk about the attitude of going ahead, doing this and then waiting to see what the outcome is going to be, as opposed to setting in place what the regulations should be, what the guidelines would be and what the absolute protection would be, in writing, in legislation, on both sides of the border?

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, as a lawyer, the member for Windsor—Tecumseh asks a very relevant question.

We have been asked to buy a pig in a poke. We have been asked to put in place the underlying principles and the framework of an agreement, the details of which we do not know. We would not buy a house without reading the fine print, but we have been asked to buy a pig in a poke and to trust the government that it would never enter into an arrangement that would be detrimental to the best interests of Canadians.

We have recent evidence, experience and empirical evidence from which to draw. There is the absurd situation of a do not fly list where a freely elected Canadian member of Parliament cannot get on an airplane in his own country because of a list being kept in Washington, DC. We have recent examples, like the case of Maher Arar, a Canadian citizen subject to the overzealous trading of information between countries, which caused an atrocity in that regard.

We do not know the details of the agreements being entered into with other countries. We do know the details of the one agreement that has been released, and that is between the United States and the European Union. In that case, every time people travel, the right to information they will have is their credit card information, who they are travelling with, what hotel they are staying at, other booking information such as tours or rental cars and any medical condition they may have.

Personal credit card information and personal health records will now be in the hands of another nation. Canadians' sovereign right to privacy is being compromised and undermined by this legislation. It should be condemned. We should be unanimous in our condemnation of a foreign nation intruding in our Canadian national sovereignty and the absolute obligations of the government to protect the sovereign and fundamental freedoms of privacy.

We have a right to know what the government is doing. It does not have an absolute right to know what we are doing.

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

Mr. Speaker, I am pleased to speak to Bill C-42 today. I am the tourism critic for the NDP. More important, I am a Canadian citizen who is concerned about this tremendous erosion of Canadian privacy and sovereignty. The bill has serious implications on Canadian travellers taking international flights over but not into the United States.

The bill should be defeated. It is quite clearly nothing but data mining by the United States. I can understand why it would ask. I cannot understand why we would say yes, especially when it is not reciprocal. It is an unwarranted invasion of Canadians' privacy in many ways.

It is disturbing, but unfortunately not surprising, that the Conservative government would introduce such a bill. It might be reasonable to assume that foreign governments would want carriers to provide names and personal details for flights that would be landing on their soil. Unfortunately, Bill C-42 goes a ridiculous amount further. It would have airlines provide personal information. We heard the member from Winnipeg list many of the kinds of personal information that would be given to a country that travellers were just flying over.

Let us explore some of the implications of the bill. Apparently, a passenger leaving Canada on a vacation to Cuba, which many Canadians do although the Americans do not like it because they do not like Cuba and do not like us going to Cuba, could have their name, birthdate and over 30 other pieces of personal information subject to screening by the Department of U.S. Homeland Security. It would also be checking that information against various databases, including the infamous U.S. no-fly list. If people's names are on the American no-fly list, they will not get on that flight nor will they know the reason why. As well, it may not be just a one-time occurrence. Effectively, they may never be able to get off that U.S. no-fly list and may be banned from all flights leaving from Canada but flying over U.S. airspace for a very long time.

There are already examples of misuse. For example, there is the story of Hernando Ospina. He is a journalist for Le Monde diplomatique, whose Air France flight from Paris to Mexico was diverted to Martinique just because he wrote an article that was critical of U.S. foreign policy.

Another example is Paul-Émile Dupret. He is a Belgian researcher with the European Parliament. His 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.

Who will be on the no-fly list after our speeches here today? Will members of the House of Commons end up on the U.S. no-fly list?

How can the government assure Canadians that this type of political misuse will not occur if Bill C-42 is passed? Apparently, the U.S. has told our government that it needs everyone's personal information so it can check it with its various lists of people who it does not want flying so there are less false matches and less problems. It is saying, “Let us clear your passengers for you.” Our government is going along with this. Is this laziness? Are we really that desirous of letting someone else take over the security checks of our citizens flying to a third country via U.S. airspace? We will simply have to accept that they do not get to fly internationally anymore because we have given a foreign government a veto over Canadians travelling abroad.

I hope all the members of all the parties in the House come to their senses, vote against Bill C-42 and preserve Canadian rights and Canadian sovereignty.

[The Acting Speaker, Barry Devolin]

Order, please. The hon. member for Thunder Bay—Superior North will have 15 minutes remaining when the House returns to this matter.

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.

[The Speaker, Peter Milliken]

When this matter was last before the House the hon. member for Thunder Bay—Superior North had the floor and has 15 minutes in the time allotted for his remarks.

I therefore call upon the hon. member for Thunder Bay—Superior North.

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

Mr. Speaker, when we left off before question period, I was speaking about Bill C-42, introduced by the Conservative government, which amends the Aeronautics Act.

To briefly reiterate what I said before, this bill 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. This privacy invasion is backed up by the implied threat that U.S. airspace would be closed to Canadian commercial aircraft unless the bill is passed.

Let us explore some of the implications of the bill.

Apparently, passengers leaving Canada on a vacation to a destination south of us, be it Central America, South America, the Caribbean, could have their names, their birthdates and over 30 other pieces of personal information subject to screening by the U.S. Department of Homeland Security, which involves running that information through various government databases including the infamous U.S. no-fly list.

Bill C-42 amends the Aeronautics Act to allow airlines to send the personal information of passengers to foreign security services, not just the services of the United States.

What information will be forwarded is determined by requirements laid out in secret agreements with other countries. As we know, the government delights in secret agreements until it is too late to reverse them.

Details of those 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 U.S..

Details of the agreement between the European Union and the United States for the same information transfer are troubling. That agreement allows the following:

First, the information forwarded will be the passenger name record, which is the file a travel agent creates when one books a holiday. It can and usually does include credit card information, who one is travelling with, hotel, other booking information such as tours or rental cars, and any serious medical conditions of the passenger.

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 services of a third nation without the consent or notification of the other signatory.

Fourth, 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.

Fifth, the United States may unilaterally amend the agreement as long as it advises the EU or other signatories of the change.

There has already been one amendment whereby all documents held by the EU concerning the agreement shall not be publicly released for 10 years with no access by others to that information request.

In essence, the bill would allow data mining of Canada's personal information by foreign security services.

If a passenger's name is not on one of the American lists, the U.S. Department of Homeland Security will allow the Canadian airline to issue that passenger a boarding pass. However, we have all heard the horror stories of the mess one can get caught up in if he or she happens to have a similar name, and especially the same birthday, as someone on that multi-million name list, or if someone has been put on the list by mistake. That person's name will never be taken off. He or she might be questioned, delayed or barred from that flight. Even worse, he or she may effectively be banned for weeks, months or years from all flights leaving Canada that overfly U.S. territory.

I know members of the Conservative government have been arguing that we have to give up some of our sovereignty if we want to have security, that this time the cost of our safety 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”, and I would add, probably do not get either one.

That is ironic because the bill will not improve the security of Canadians one bit. It does not have our security interests in mind at all. The Republicans could have and perhaps did draft this bill. If they did, there might be some clause for the sharing of information instead of it all being a one-way street.

U.S. carriers could be giving us their passenger lists too, so that we could make decisions about our security, but reciprocity is nowhere to be found in Bill C-42. This is ridiculous. It is one-sided. Only Canadian passenger information is being sent to the U.S. All it does is send our personal passenger information abroad for not only the U.S. but other governments to do with as they may for a very long time. 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 and we would not have any control of it at all. It is yet another significant erosion by the government of Canadian autonomy by the Conservatives.

Why should members of the House representing Canadians support this legislation if it will not even improve the security of Canadians? We are not elected to represent the interests of foreign governments. At least that is not the way I and members of the NDP see it. As the member for Thunder Bay—Superior North, I represent Canadians and constituents in my riding. Therefore, gutting the privacy rights of Canadians for no improvement in their safety is a foolish bargain.

It is no wonder the Canadian Civil Liberties Association called this 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.

It is interesting that the bill comes from a party which claims repeatedly to believe in the privacy and autonomy of Canadian citizens and has claimed in the past, without a lot of evidence, that it fears big brother or big government intruding into the lives of average Canadians. This is not only the Canadian government but the United States and many other governments intruding with our permission.

This legislation rolls over and rolls back 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 Canada's air carriers who can and cannot fly on flights that do not even land in its country.

There is the danger that unless this bill is agreed to, the United States could close its airspace to Canadian aircraft. While this implied threat may result in pressure to pass this bill, it is unlikely the United States would ever carry through with this threat.

While the bill will be spun as necessary for fighting against terrorism, there are no examples of how this data mining has caught a single terrorist or any other criminal. However, Maher Arar is an example of how this information can be misused to grossly abuse the rights and protections of a Canadian citizen.

Our own chief justice said in 2009:

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.

In conclusion, this faulty legislation would undermine both the sovereignty of Canada and Canadians' privacy rights. There is no evidence at all that it would increase security one bit.

I invite all members in the House to reconsider and keep the interests of our constituents in mind, vote against Bill C-42 and represent the interests of all Canadians.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member closed his speech by saying this is faulty legislation. I have the bill here and I am not sure whether or not the member could point out where the fault is in the legislation. There may be some fault in the logic of the member's argument, that there are some options to whether or not he would like to respect sovereign authority of another country that is pursuant to an agreement that we have with the United States already. It is already in place. He knows that.

The question is, if the Civil Liberties Association says that this is an abuse of privacy rights and the Privacy Commissioner of Canada says no, it is not, how do we resolve the issue when any sovereign country says if we want to enter its air space, there are certain conditions to follow. How does the member reconcile that? It is not a matter of faulty legislation. We have to do something. What is it?

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

Mr. Speaker, there are two kinds of bad legislation. There is legislation which is flawed in technical aspects, in research, in how the laws are applied or written. Then there is just plain, old, dumb, one-sided legislation that protects the rights, allegedly, of Americans with absolutely zero reciprocity to protect the rights of Canadians.

I have come to expect that from the party across the aisle, but I am pretty shocked to be hearing this kind of lame apology from a member of the Liberal Party for legislation which is so obviously one-sided and dumb.

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

Mr. Speaker, the member's excellent presentation regarding Bill C-42 explained the issues rather well.

Fundamentally, the government should be looking at improving security when dealing with air travel. One of the ways to do that is to look at the exposures that we have. The biggest exposure we have right now, according to the Allied Pilots Association, is the trusted shippers program where mail and packages go directly onto airplanes, sit right underneath passengers on the airplane, that are totally unchecked. These thousand-plus people in the trusted shipper program have not really been investigated, have not been checked, but once again, we are ignoring a major exposure at the expense of doing something like this which has questionable value.

When the Americans asked for this legislation, the government should have recognized that in fact there are maybe 100 Canadian flights flying over the United States, but there are 2,000 American flights flying over Canada. The negotiators should have been smart enough to say, “If it is good enough for us to give you the information, then why do you not give us the information?”

The government tells me that is exactly what it is prepared to do. The point is that the Canadian government is not prepared to pay the evidently half a billion dollars in developing the computer system necessary to handle the information. We are prepared to let the Americans foot the bill for the computer system. We are going to give them the information so they can keep it and for what purpose? There is absolutely no proof we are going to get any tangible results out of this. There are just more questions.

The Liberal Party should be asking more questions about this rather than blindly following the government, as it does with this bill and many other bills in this House.

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

Mr. Speaker, I never cease to be surprised by the depth and breadth of knowledge of the member for Elmwood—Transcona. He does a lot of homework and keeps on top of things.

The hon. member asked, who is going to pay the cost? In the late seventies we had a 36% corporate sales tax for large corporations in both the U.S. and Canada. Today that marginal tax rate for large corporations in the U.S. is still 36%, but for Canadian corporations it has dwindled down to 16.5%, which has not resulted in investment. We are exporting huge amounts of tax revenue to the United States at this point, so it certainly will be able to afford the cost of multi-billion dollar computers to keep track of the private lives of Canadians.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I listened carefully to the debate of the hon. member, and all members in the House today and in weeks past.

I understand that the American government does have authority to implement its secure flight program. International law is pretty clear on that, jurisdiction includes airspace above a country.

That is not at issue here. The Canadian government also has a duty and that duty is to protect the privacy and civil rights of its citizens. We are not disputing the fact that the Americans are protecting their sovereignty and are acting within those rights, but this is about what the Canadian government is doing to protect Canadian citizens.

I want to remind my colleague of some of the recommendations made by the Office of the Privacy Commissioner when this bill was before committee. The Office of the Privacy Commissioner is concerned about the direction this legislation is taking us in.

There were six specific recommendations. First, the Canadian government should negotiate the collection of minimal personal information, meaning strictly as necessary to ensure proper identification and therefore avoid false positives.

Second, question the retention periods of seven days for no match and seven years for potential matches to fulfill the commitment from the U.S. authorities themselves to collect personal information only as necessary for airline security.

Third, negotiate robust and accessible redress mechanisms for Canadians to minimize the impact of an erroneous match.

Fourth, implement measures to support Canadians availing themselves of the DHS redress mechanisms.

Fifth, inform Canadians of the exact scope of personal information that will be collected by DHS under secure flight.

Finally, clarify Canadian law on the conditions of disclosure of personal information by airlines to DHS to ensure public debate and legal certainty.

Some Liberal speakers earlier in this debate said that those concerns are all serious, but the legislation should be passed and we will worry about that later. I am not sure that is a responsible way to pass legislation in this House. Canadians deserve better from us.

I wonder if the member for Thunder Bay—Superior North could tell us whether he agrees with the Liberals, that when we pass this bill, we can work out the details later, or whether we actually need to get the details right before we focus on passing this legislation.

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

Mr. Speaker, we can always count on the hon. member for Hamilton Mountain to be well prepared. I am very appreciative of her bringing the detailed and written recommendations made by the Office of the Privacy Commissioner here.

We often hear the Liberals playing fast and loose with the facts, but I do not know whether it is accidental or not, or whether it is just a lack of knowing.

We heard the hon. Liberal member just a little while ago say that the Privacy Commissioner did not have any problems with this bill. We just heard a good and detailed list of exactly the kinds of concerns that the Privacy Commissioner shared with members of the NDP and myself.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am looking at the direct testimony of the Privacy Commissioner at committee on November 18, 2010. The member who just spoke is absolutely wrong. She said that there were no breaches of the act. It is like having regulations to a piece of legislation. How long is the retention period? How do we mitigate false positives, et cetera? These are operational things that happen in regulations.

If the member would check the actual testimony, he would see that the Privacy Commissioner had no concerns about the legislation, but did make suggestions on how to mitigate the potential for any undue invasiveness.

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

Mr. Speaker, anyone interested could obviously check the text of both of those pieces of history. We have it written down and carefully read piece of evidence here in the opinion of the member.

I would just like to re-read the very short quote about the best opinion. The Canadian Civil Liberties Association calls this a complete abdication to a foreign government of Canada's duty to protect the privacy of Canadians. It is unacceptable and dangerous.