This bill is from the 40th Parliament, 3rd session, which ended in March 2011.
Chuck Strahl Conservative
This bill has received Royal Assent and is now law.
This is from the published bill. The Library of Parliament has also written a full legislative summary of the bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
Bill numbers are reused for different bills each new session. Perhaps you were looking for one of these other C-42s:
Strengthening Aviation Security ActGovernment Orders
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.
Strengthening Aviation Security ActGovernment Orders
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.
Olivia Chow NDP Trinity—Spadina, ON
Mr. Speaker, on a day like this, many Canadians think about travelling south. Some may be thinking of going to Cuba or to Mexico, to the Caribbean, and in order to do so, they have to fly over American airspace.
The bill before us is truly disturbing. Even though travellers are not landing on American soil, the information of any passengers and tourists going to a southern island will be shared with American agencies, and it is not just one agency, it is many different agencies.
The agreement before us, Bill C-42, would allow information to pass to the U.S., such as both passenger name records, the file created by travel agents when they book a vacation, which includes credit card information, with whom passengers are travelling, their hotel and other booking information, such as car rentals, tours they may take, and any medical and diet information. Essentially, almost their complete personal file would be handed over to the United States. The United States of America can keep the information for 40 years.
The United States agencies can then send the information to a third nation. It could be sent to China, Libya, Russia or wherever they want to send the information, without the consent of the tourist or passenger flying over American airspace. In Canada, a passenger would not even know this information is being shared by any number of countries.
If there is an error in the information, such as an error in a passenger's medical information, how many children they have or any number of things, because sometimes travel agencies make mistakes, neither the passenger nor Canada would find out about it, and before long the third country could have this erroneous information. This is the kind of invasion of privacy we are talking about today.
The United States may amend the information as long as it advises the European Union of the change, but Canada may not necessarily know much about it. Basically, any information about a Canadian would then be shared. Given the tens of thousands of tourists who go south over American airspace as they travel to other countries to visit their loved ones or to vacation, Bill C-42, would have implications for those tens of thousands of Canadians.
Even though the bill is very short, only two pages, the implications for air passengers is serious. Why is that so? Fundamentally, Canada has a slightly different foreign policy, I would hope, than the United States of America. We do not view Cuba, for example, in the same way as does the United States. We do not support the sanctions against Cuba. We allow for free travel to Cuba.
I recall that we had a distinctly different refugee policy when the U.S. was heavily involved in Latin American countries: El Salvador, Guatemala during the 1980s, and Chile during 1970s. For a long time during the 1980s the U.S. would deport people back to El Salvador and Chile where they faced death squads and were systematically killed. Nuns were brutally raped and bishops, such as Bishop Oscar Romero, were murdered in El Salvador.
I cannot imagine what would have happened to the Canadians who defended the rights of these brave church workers in El Salvador if that information was passed on to the United States and shared with the regime at that time. If those Canadians flew to any part of Latin America, their lives would have been endangered.
At that time Canada was very clear that we would not deport people back to Chile because the Pinochet government was not democratic and abused the human rights of its citizens. We would not deport people nor would we share the information of Canadians, especially church workers who worked very closely with people in those Latin American countries who were struggling for democracy and freedom from poverty.
We know that Canada had a different foreign policy. We did not participate in the Vietnam war or enter into the war in Iraq. However, if at that time Canadian passenger information was shared with the Americans then, for example, Vietnam war resisters flying over the United States could have had their family and their future put in jeopardy.
To allow this kind of secure information to be given to another country would reduce the sovereignty of Canada and Canadians.
It is not as if we do not have examples of mistakes made in the past with sharing information with the Americans. We can recall the case of Maher Arar who was sent to be tortured. The information on him was misused and incorrect, but he had no idea that was the case.
He was a 34-year-old wireless technology consultant. He was a native of Syria, but came to Canada with his family at the age of 17. He became a Canadian citizen in 1991. In 2002, in New York at JFK airport in transit to Montreal, he did not think twice that there would be a problem. Twelve days later, he was shackled and flown to Syria. He was then put in a tiny cell, which was like a coffin, for 10 months. Canadians are very familiar with the torture he went through. He was beaten and forced to make a false confession.
We know that was a mistake. Justice Dennis O'Connor, in September 2006, cleared Maher Arar of all terrorism allegations, stating that he was able to say:
—categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada.
The Prime Minister even apologized and awarded him $10.5 million in compensation because he was innocent.
Yet, to this day, Maher Arar is still on the American no-fly list. How many more Canadians are on that no-fly list? How many innocent Canadians are on this no-fly list? Canada has a right and a responsibility to tell Canadians and to advocate on their behalf to ensure innocent Canadians who are on the no-fly list see some kind of justice. Yet the bill probably would increase the number of people being entered onto an American no-fly list. That is highly dangerous and is highly invasive of people's privacy.
Coming from a Conservative government that claims to protect people's privacy, through not wanting people to fill in the long form census, et cetera, we would think this bill would not see the light of day. Perhaps, at the end of the day, the Conservative government really does not care about people's civil rights and privacy.
We are seeing a disturbing trend of the charter rights of Canadians being violated. One of the charter rights states that in a democratic society such as Canada, it is important:
Security measures must be developed in the context of respect for and protection of individuals’ constitutional rights, including democratic and due process rights, the right to privacy, freedom of peaceful assembly and freedom of expression.
The G20 report today said that people's rights to peaceful assembly and freedom of expression had been violated, yet the government will not call a public inquiry. Now we are debating Bill C-42, which totally violates the person's right to privacy, including the due process. How can Canadians have due process if they do not know their information is being shared with other countries? There is no consent and no notification. This means that person who is on some record, and not just one agency but many U.S. agencies share the information, will not have any due process that according to the Charter of Rights should be given to the he or she. The person will not be given any process to get justice.
It is no surprise that the Canadian Civil Liberties Association spoke out very much against this bill. It said:
—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....
Therefore, the first point is there is a constitutional vulnerability that should be looked at before we approve the bill.
She further talked about there being no requirement in Bill C-42 or in the regulations of the U.S. TSA 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 and, in fact, it can do so. We know this has been a particularly difficult issue for some Canadians, Maher Arar being a case in point. There are several others. There is no guarantee that the TSA will not use the information for profiling Canadians, to put them on its watch list or the no-fly list.
In terms of immigration policies, for quite a large number of years, we know Americans were deporting people back to Haiti, whereas Canada does not do so. Again, it is because we have slightly different foreign policies. To now merge all this information is giving away Canada's right to have its own established rules and regulations.
The general counsel with Canadian Civil Liberties Association mentioned that the United States no-fly list was under constitutional review. It has been challenged because there are too many false positives arising out of it. We know there have been difficulties with this no-fly list, including a famous Canadian, Maher Arar, being on it.
The process has been described has Kafkaesque, as it does not allow people to know whether they are on it or not, how to get off it and what evidence is there. To this day, Maher Arar still does not know why he is on the American no-fly list. He has still been unable to remove his name, even though the government and our Parliament have said that he is innocent and is no threat whatsoever.
There is no guarantee that an innocent Canadian would not be mistakenly placed on the list, like Maher Arar. There is no guarantee that the person would not be prevented from flying or being detained in the U.S. or elsewhere without due process.
Speaking of the number of agencies, 16 U.S. agencies can share this information. Those who end up landing in a country that the U.S. may not support, such as Cuba, could end up in trouble because it is a third country.
All of this points to the fact that this is a massive invasion of people's privacy.
We have other examples. One case is a Belgium citizen, Paul-Émile Dupret, who is an analyst for the European Parliament and who has conducted a campaign opposing the transfer of European travellers' personal information to American authorities. As his flight was en route to Mexico, his final destination was Sao Paulo, where he was travelling to attend the World Social Forum, the aircraft had to circumvent the United States because the U.S. authorities were not authorizing Mr. Dupret to fly through American airspace.
We note that these individuals clearly do not represent a threat to air security. Mr. Dupret could very well have been a Canadian journalist or a public servant travelling to Latin America. It is an illusion to think that information provided under the secure flight program will be protected, or that it will be destroyed or that it will be error-free.
Last, Justice O'Connor's investigation of the Maher Arar affair made a lot of recommendations. To this day, the government has still not implemented those recommendations. Instead, it is going in the opposite direction and bringing in Bill C-42, with the support of the Liberal Party of Canada. What a shame.
Chris Charlton NDP Hamilton Mountain, ON
Mr. Speaker, the member for Trinity—Spadina raises a number of really important issues. Though I do not have a lot of time this afternoon to pursue some of them, I want to talk about the no-fly list. It is interesting when people like Senator Ted Kennedy and, indeed, the member for Winnipeg Centre in the House can be on the no-fly list with no recourse to get themselves off of it. What are we really doing here? We cannot even ask questions about this.
I want to remind members of a very important presentation that was made to the committee when it studied the bill. It was made by Nathalie Des Rosiers from the Canadian Civil Liberties Association. With everyone's indulgence, I will read part of her presentation into the record because it is very important for members in the House to be reminded of what she said. She said:
Certainly to the extent that there is an expectation of privacy protected by the charter, this bill would not meet a section 1 challenge, because it has no limitations. It does not adequately protect the problems that may arise with the disclosure of information, and so on. So the first point is that there is a constitutional vulnerability that should be looked at before we go too much further.
She went on to say:
I would mention to the committee that in the United States, the no fly list is under constitutional review as we speak. It has been challenged because there are too many false positives arising.
The process has been described as Kafkaesque, in the way it does not allow people to know whether they're on it, how to get off it, and what evidence is on it. So that's the danger. The danger is that Canadian passengers, Canadians, will be put at risk of being stuck somewhere with no possibility of flying back. There's no guarantee that an innocent Canadian could not be mistakenly placed on the list. There's no guarantee that innocent Canadians mistakenly placed on the list will not be prevented from flying or from being detained in the U.S. or elsewhere without due process.
I want to ask the hon. member this. If that can happen to the late Senator Ted Kennedy and the member for Winnipeg Centre, what guarantees do Canadians have that they will not be similarly impacted?
Olivia Chow NDP Trinity—Spadina, ON
Mr. Speaker, let me read several quotes. The first states, “the U.S. government [gives] unprecedented amounts of information about Canadians”. That is talking about the privacy of Canadians. the member goes on to say:
I do not think the Prime Minister is being straight with Canadians about this issue. The deal would impose U.S. Homeland Security standards on this side of the border. Why is the Prime Minister even contemplating the surrender of Canadian privacy rights to U.S. Homeland Security?
The member further asked what biometric information on Canadians would the Conservatives surrender to the Americans and when would the Prime Minister tell Canadians and Parliament the truth.
I have another quote from the hon. member, who stated:
The issue is how much private information the Canadian government will hand over to the Americans in the harmonization of entry and exit systems. It is a question to which an answer should be given. Will we keep control over who gets into Canada in terms of our immigration and refugee policy and will the Prime Minister bring this deal to Parliament before an agreement is signed?
The person who asked all these questions is the Leader of the Opposition, the leader of the Liberal Party of Canada. Even though he has asked all those questions and he is opposed to the invasion of privacy, I do not understand why that party is supporting Bill C-42.