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

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

Mr. Speaker, the problem we are finding with Conservative legislation is that often it is done very rapidly and without due regard to an effective process. The statement has been made in the House that it is often done on the back of a napkin. There may be some good elements in some of the legislation, but that is mitigated by the fact that there is a hasty and sometimes incompetent drafting process in which the government seems to engage.

How does the hon. member feel about the quality of legislation brought forward in the House? Does he feel that the intent of legislation is matched by either need or by the appropriateness of how this bill has been drafted? Does he think the Conservatives have it right this time or not?

[John McCallum, Liberal, Markham—Unionville, ON]

Mr. Speaker, in terms of diplomatic relations, of which the latest example is the United Arab Emirates, the reputation the Conservatives have is dismal. Therefore, one of my primary concerns, given this dismal diplomatic relation, is the bill gives them unlimited power to engage in information giving, not sharing. It is a one-way flow of information from Canada to another country. With the stroke of a pen and an order-in-council, they can give out the private information of Canadians to any country they choose. That point is clear enough in the bill as drafted, so this would be one of my very major concerns.

However, as I said a few minutes ago, the only way we will really get to the bottom of what the bill would do and what its true implications would be, is if it gets to committee and we call a whole variety of witnesses who are experts in various areas, including privacy concerns. Only after that process, and not really thanks to the government, will we find out the true implications of the bill. At that point, we will know better whether we wish to support it.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I gather that my speech will be cut short by question period unless I request the unanimous consent of the House to delay members' statements. Rest assured though, I will not be doing that.

This bill deals with disclosing the identity of passengers flying over the United States who are not stopping there. Given that we have just started debate at second reading, I would like to say, on behalf of my Bloc Québécois colleagues, that we will be supporting this bill simply because we want to examine it more thoroughly in committee. I do not want to get into a long speech about parliamentary law, but typically the vote at second reading is about the principle of the bill.

We will vote in favour of the bill because we want it to be studied in committee. There we will be able to hear from witnesses who will share their diverse experiences and talk about the problems that this bill raises. To prepare for my speech earlier, I was talking to our colleague, the hon. member for Ahuntsic, who is the excellent Bloc Québécois public safety critic. She gave me the names of people who represent various groups that might be interested in providing testimony on this bill.

As I have already mentioned, the purpose of this bill is to allow airline companies to disclose information about their passengers to the countries whose airspace they will be using. That is slightly different wording from the former Bill C-44, which we adopted in 2001, when it was a question of stopovers and passengers in transit. It is appropriate for the country receiving the airline passengers to know the past and present of these individuals.

This bill talks about planes travelling through an airspace, which raises a few questions among members of the Bloc Québécois. We understand that this bill responds to a specific request by the United States. We recognize that the United States is a major trading partner, but that does not mean we have to blindly accept every request the U.S. makes. We saw what type of democracy the Americans had under George W. Bush.

The Bloc Québécois obviously recognizes that every country has the right to regulate its airspace, but the fact remains that we think this measure goes too far. As I was saying earlier, the identified passengers will not even land—or at least not during this trip—in the country that would be receiving confidential and substantial information. I hope I am not telling the House anything new, but planes travel through the air and not always through free or international zones. Sometimes, at 33,000 or 35,000 feet, planes travel through airspace subject to the sovereignty of certain countries, but the passengers of those planes will never touch the soil of those countries. They will only fly over those countries.

The bill gives the countries being flown over the right to receive personal information. We want to study this bill in committee to determine if that is really necessary. The Bloc Québécois wants to ensure that we are doing everything we can to avoid violating travellers' privacy. For instance, one of the questions we would like to ask the department's witnesses regarding the government's approach in this bill is whether the Canadian government tried to reason with the United States and ask it to justify this measure.

As vice-chair of the Standing Committee on Transport, Infrastructure and Communities, I will have the opportunity to ask such questions on this measure, which, as we all know, comes from the United States. We believe that the information available must be kept to the absolute minimum required. We are concerned about the lack of any guidelines, including for instance, ensuring that only the information requested by the United States will be transmitted. But that is not the case; a blanket disclosure can be made.

Will the transmitted information be determined by legislation rather than regulations? Should the transmission, if necessary, be conditional on the signing of a protocol between Canada and the country requesting the information? Such a protocol would govern how the information is used, stored and deleted. Furthermore, it could provide a mechanism to give the victims of errors an opportunity to correct their information, as well as a process to compensate them if necessary.

Lastly, we believe that passengers must be clearly informed, before they purchase their plane tickets, about the fact that certain countries will be receiving some of their personal information. Given these many problems, the Bloc Québécois reserves the right to oppose the bill at future stages in the parliamentary process. The responses we obtain in committee will determine how we decide to proceed during the clause-by-clause study of the bill and how we vote at third reading.

Mr. Speaker, since you are indicating that the time for members' statements is about to begin, I will continue after question period.

[The Deputy Speaker, Conservative, Andrew Scheer]

When the hon. member resumes, he will have 12 minutes to finish his speech.

The House resumed consideration of the motion that Bill C-42, An Act to amend the Aeronautics Act, be read the second time and referred to a committee.

[The Speaker, Liberal, Peter Milliken]

Earlier, when the bill was before the House, the hon. member for Montmorency—Charlevoix—Haute-Côte-Nord had the floor. He has 12 minutes remaining for his remarks.

The hon. member for Montmorency—Charlevoix—Haute-Côte-Nord.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I will try to make myself understood in this cacophony. We know that since 2001, in the wake of September 11, a series of measures has been implemented, in the United States in particular, to improve public safety.

Sometimes these measures infringed and still infringe in a real, tangible or perceived way on the right to privacy. In the aftermath came the implementation of what is commonly referred to in the airline industry as the no-fly list. Being on this list means being prohibited from boarding flights. In order for this list to be fully operational, it is important to know passengers' identity ahead of time. That is why, in 2001, at the request of the United States, the Canadian government introduced Bill C-44, which received the Bloc Québécois' support.

That bill was passed quickly. It authorized airline companies to disclose to local authorities all passenger information prescribed by regulation. The next words I am about to say are important, if not crucial, because they make a distinction between Bill C-44 and the bill currently before us. Bill C-44 allowed all information to be given to authorities in the country of arrival or transit, where the plane touches the ground, whereas Bill C-42 before us covers flying through a given country's airspace. That distinction is of capital importance.

The information requested was name, date of birth, sex, and sometimes, passport number. If, at first glance, access to that information seems innocuous, keep in mind the many problems with the no-fly list.

To show just how ridiculous the United States' no-fly list is, I want to mention two cases where the system went very wrong. One of the people whose name appeared on the no-fly list was Ted Kennedy, the Democratic senator from Massachusetts, who died just a few months ago. In 2004, he was apprehended and interrogated five times at the airport, even though his name should not have been on the list. Despite his fame and influence, it took more than three weeks for his team of Congressional aides to get his name off the list. That was one of the mistakes that received the most media coverage, but it was not the only one. There is another example of how ridiculous this list is. Last May in the United States, the Thomas family was apprehended at the airport. Why? Because the name of one of the Thomas girls, who was six years old, was on the no-fly list.

People certainly realized there had been a mistake. It was still very difficult, though, to get on the plane. That is basically what I had to say.

I just want to repeat what I said before the members’ statements and question period, namely that the Bloc Québécois will vote for this bill in principle. We will agree to send it to a committee so that it can be studied seriously and in depth, with witnesses, specialists and experts. I want to thank my colleague, the hon. member for Ahuntsic, who is our outstanding public safety critic. She sent me an email suggesting the names of witnesses, groups and individuals who could enlighten the committee with their expertise so that Bill C-42 can be subjected to some serious analysis.

I want to be clear. The Bloc Québécois will vote at second reading in favour of the principle of this bill so that it can be sent to a committee. Regarding how we will proceed after that, though, we reserve the right to change our position on this issue if necessary.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I want to address the last statement that the hon. member made.

He is a very learned parliamentarian and he is aware that, once passed at second reading, the bill is approved in principle, and in referring it to a committee, one cannot amend the legislation beyond the scope of the bill. However, his declaration at the end is to somehow reserve some right to do that if he feels that it is necessary based on the committee investigation.

I would like to ask the member if he can inform the House whether his reservations in fact are in the nature of being potentially contrary to the approval in principle that we would give it at a second reading vote and whether he would like to elaborate on the nature of his potential concern.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I agree with my colleague that we cannot change the scope of the bill, which is to say its purpose, direction and objectives. But because it is a very short bill, we can change some things. By way of answer, I would like to read a statement by Jennifer Stoddart, the Privacy Commissioner of Canada:

Privacy is a critical element of a free society and there can be no real freedom without it.

Canada is currently on a dangerous path towards a surveillance society. We are beginning to think of more and more everyday situations in terms of “risk” and the previously exceptional collection and use of personal information are becoming normal.

We have been seeing excesses and abuses since 2006, when the Conservatives came to power. They have an approach worthy of Big Brother, the government that sees evil everywhere and wants to invade people's privacy and get its hands on personal information. That is what we have been seeing since the Conservatives came to power.

I am well aware that I am not giving a direct answer to my colleague's insightful question. We will see in light of the testimony in committee. The Bloc Québécois has some doubts going into this. It will decide after the fact whether or not its doubts are warranted, and it will also decide how it will vote at third reading.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, the ostensible reason why this bill has come forward now is the Conservative government has indicated there has been pressure from the United States to conform with this provision of providing information. We do not really know what information it is going to be asking for yet, but we are going to be giving permission for the Canadian government to provide it. This is in the nature of a threat.

The United States government is threatening to disallow Canadian flights to fly through its airspace unless this information is given. The fact is there are between 1,000 and 2,000 U.S. flights a day over Canada. Does he think the type of action the U.S. is taking on a much more limited number of flights than Canadian airlines are engaged in that would overfly U.S. airspace is justified and practical? If we were to incorporate the notion of reciprocity on information, would this be an incredible burden on the U.S. aviation industry?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, my colleague is right to wonder about this. However, I respectfully suggest that we should not be looking at reciprocity or at the thousands of American flights that go through Canadian airspace and vice-versa. That is not the approach we should take.

The Bloc Québécois acknowledges that a sovereign country has the right to regulate its own airspace. We acknowledge as well that this request came from the United States and must be taken seriously. As I said in the first part of my speech, the United States is a major trading partner and a popular tourist destination for countless Canadians and Quebeckers, but we should still apply this provision in a way that is sensible and reasonable, not blindly, as the Conservative government does in many different areas, including this one. The Americans want it, so we do it.

In committee, we will hear from privacy experts. I will not be testifying before the committee. I do not claim to be an expert on privacy. We will listen to experts who will tell us whether this request is excessive and unreasonable, and if they say so, we will vote against the bill. In any case, we should not compare the thousands of flights through Canadian airspace to the much smaller number of flights through American airspace. I find it hard to follow my colleague’s reasoning on that point.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I think there is some confusion here. Today and on other occasions, we always want to support bills so that they can be sent to a committee for further study. However, agreeing with a bill in principle means that we have already agreed with it, making it virtually impossible to study the bill in depth.

I hold the hon. member in high regard and would like to know whether he thinks it might be possible to study bills in more depth here in the House where members have to publicly provide their well-thought-out views for the consideration of the House before the bills can be sent to a committee.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, my colleague's question surprises me. He is a seasoned parliamentarian, a veteran of this House.

We might agree with the principle of a bill at second reading, but that does not necessarily mean we will support it at third reading. That is precisely why our parliamentary procedure dictates that after passing second reading, bills are referred to committee to hear from witnesses, specialists and experts.

If, because of his experience, my hon. colleague could claim the title of expert, he could appear before the committee, enlighten us and give us the benefit of his wisdom. That is why I do not see any contradiction in the Bloc Québécois' position. In 2001 we were in agreement, to some extent, with Bill C-44, in cases where landing and take-off did in fact occur.

We think this now goes just a little further. Does it go too far? Is it too much? What information will be disclosed? Was the same thing asked of other countries or was it only the United States? I cannot answer these questions today, which is why we are sending this bill to committee.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I rise to speak to Bill C-42.

Before us we truly have a misleading bill. On its face, Bill C-42 seems pretty innocuous, with simple changes to the Aeronautics Act, a word here, a word there, which do not appear to provide much difference. What it really does is implement secret letters and memorandums of understanding, not treaties, to invade the privacy of Canadians by handing over our personal information to secret service agencies in foreign countries. Under the bill, just flying over another country is sufficient reason to hand over detailed personal information.

The government would have us believe that we need the bill to fight terrorism. The truth is the government needs the bill so it and other foreign organizations can compile detailed files on Canadians. It will tell us the information is only name and address, et cetera. In reality, what the government is getting ready to hand over is the passenger name record, which includes such vital pieces of security information such as what one ate on the plane, one's medical condition, among other things.

However, the government will not admit to this. In fact, we have a situation where the government is moving ahead with a variety of secret agreements with other countries that will provide the same information to other countries and not simply to the United States.

The government wants us to believe that it is working hard to protect our privacy. Cynically, with Bill C-42, it is stripping away the privacy protection of Canadians.

Perhaps there is a need for some information sharing on flights between countries. That is something the government has said there is a need for. How can we deal with that and maintain the basic principles of privacy for Canadians?

In 1998 the European Commission put forward six key principles, which must be included in any kind of arrangement that is struck with other countries in terms of sharing information. This was specifically tailored towards the aviation industry.

One of the principles is the purpose limitation principle. Private personal information should be processed for a specific purpose and subsequently used or further communicated only in so far as it is not incompatible with the purpose of the transfer.

Another principle is the information quality and proportionality principle, which is Information should be accurate and, when necessary, kept up to date. The information should be adequate, relevant and not excessive in relation to the purposes for which it is transferred or further processed.

This is extremely important to Canadians. If we hand over information about Canadians to another country, we need to have the ability to ensure that information is kept correctly and is kept up to date. If that is not the case, then we can come into situations where, in the case of a Canadian getting a pardon for particular offences, those are not included in that record.

There is the transparency principle. Individuals should be provided with information as to the purpose of the processing and the identity of those in control of the information in the third country and other information in so far as this is necessary to ensure fairness. In other words, it is part of the rights of people right to understand who else has information about them, where it is kept, what they are using it for, how long it is going to be kept, all those particular things.

The security principle is another one. Technical and organizational security measures should be taken for those in control of the information that are appropriate to the risk presented by the processing. Any person acting under the authority of those in control of the information, including a processor, must not process information except on instructions from the controllers. In other words, if the person collecting the information is not capable of upholding the security of that information, then that is not something we wish to see for the personal information of Canadians.

There is also the right of access, rectification and opposition principle. The subject of the information should have the right to obtain a copy of all the information relating to him or her that is processed and a right to rectification if the information is inaccurate. Further, in some situations people should be able to object to the processing of the information relating to them. In other words, when we take information from people, they should have an understanding of what that information is and the opportunity and the access to those who control that information if the information is not correct.

Then the final one is the restriction on onward transfers principle. Transfers of the personal information to further countries should be permitted only where the second country is also subject to the same rules as the country originally receiving the information.

We have a situation where, when we pass the information on to the United States, it may use it in one fashion. If it passes it on to another country, we understand how that information will be used in the third country and we accept and control how they use that information in that third country.

Bill C-42 does not include any of these protections. It has nothing about the protection of personal privacy in the putting forward of information about Canadians. In other words, under this bill there is an open season on information about Canadians being given to foreign countries.

Two weeks ago, we spent considerable time on an opposition motion talking about the use of the long form consensus. The government was very concerned about the collection of information from Canadians, even though that information was anonymous.

Here we have a situation where, not anonymously, with people's names attached it, we are giving information to another country without any understanding or any control of how that information is going to be used, in a public fashion.

The government may have an agreement behind the scenes about how that information is to be used, but that is not in the legislation. That is not in the law. The government or any further government following it will not be bound to do that with that information.

In defence of this bill, the office of the Minister of Public Safety said it had to do this to ensure Canadians do not face any undue delays in their travel plans. However do we really want to trade off a few minutes' delay for the total loss of our privacy? Is that what is going on here? I do not think so. I do not think that is really a reason at all why we should move ahead with a bill without any controls attached to it.

If we accept this at second reading, there will be no opportunity to insert a major change to this bill, which is required in order to protect Canadians, to make the primary function of this to protect the personal privacy of Canadians. I do not think that is possible. I do not think we will be able to accomplish that in any committee setting.

Not too long ago we went through this with the long form census. I wish the government would bring back the argument it was using then. I wish it would take those arguments and ask, “Does this not mean something to us? Did we not get up and pontificate on this particular issue? Did we not make this a point of principle for us, that the personal information of Canadians is personal, that it belongs to them, that there are privacy aspects to that?”

The government chose not to engage in that principle here with this bill. It chose not to put principles attached to the bill, which would guide the government and ensure that, if we chose and had to put it into a context of giving Canadians' information to another country, if we chose to do that, Canadians would understand how their information was protected.

On November 22, 2007, the government issued a press release saying it strongly opposed handing over to the United States, and one assumes other countries, the personal information of Canadians.

In that release the government said,

However, in light of our complementary security systems and the security cooperation of Canada and the United States, and the relative risk, we believe that there are excellent security grounds for the proposed Secure Flight Program to exempt all flights to, from and within Canada that overfly the United States.

Why did the government give in? It certainly would not have said that if it did not think it had some opportunity to negotiate a different arrangement. Remember, the flights that overfly Canada from the United States are considerably more and considerably more important to the United States than the flights from Canada that overfly the United States. That is clearly the case. Clearly Canada had the leverage to do something different with this bill.

My question is: Did the government even want to do that, or has it made a decision along with its secret negotiations with other countries around the world to share information? Has it made the decision that it is okay to share this information, that we want to give up this information, that we do not care about the privacy rights of Canadians, that we are going to leave them wide open?

A year later, just before they prorogued for the first time, the Conservatives assured the House that the secure flight program would not apply to Canadians. The government then told the House that the U.S. had indicated the secure flight program would be exempt for countries with a comparable security system. This was in response to a tame question from the government's own benches. We could not put it down to the minister not understanding the question because he had been given the answer directly. At that time the Minister of Transport said, “Our government is committed to respecting the safety, security and privacy of each and every Canadian”.

With Bill C-42 this commitment has gone straight out the window, flushed down the toilet, disposed of. This is the same government that killed the long form census just recently because it was too much of an invasion of privacy. This is the government that feels the long gun registry is too much of an invasion of privacy. The same government brings forward Bill C-42, which will make it possible for the personal and private information of Canadians to be sent out not just to the United States but perhaps to Panama, Mexico, the Dominican Republic or any other country the Canadian government deems appropriate.

It does not take much to fly over a country and give the Canadian government the right to hand that information over. Whether the current government does it or the next government, the rights of Canadians are not being protected.

In August 2007, the European Commission released an opinion on an EU-U.S. agreement on the processing and transfer of PNR by air carriers to the United States Department of Homeland Security. The opinion compared the 2007 agreement to others, and remember that the European Union does not fly over the U.S. nearly as much as Canadians do.

The opinion found that safeguards for private information are weaker than other types of agreements. Especially and specifically, the amount of information transferred is increased; the Department of Homeland Security may use sensitive information that has been excluded by previous agreements; transfers of information to foreign agencies were made easier and no longer subject to previous protection safeguards; and information under that EU agreement with the United States would be kept for at least 15 years and, in some cases, for 40 years.

The opinion also found that the new agreement contains an increased number of exemptions. Specifically, safeguards protecting personal information can be waived at the discretion of the United States.

So if we are following in the footsteps of the European Union in its secret agreement that is not public with the United States, we are going in the wrong direction.

The European Commission stated: “...the new agreement does not strike the right balance to uphold the fundamental rights of citizens as regards data protection”.

However, I am not the only one to oppose this bill. Roch Tassé of the International Civil Liberties Monitoring Group said: “The Americans will have a veto on every passenger that gets on a plane in Canada even if they are not going to set foot on American soil”. Mr. Tassé added, “What will happen if Canada invites the ambassador from a country such as Cuba?”

The Air Transport Association of Canada made its grievances known to America's Department of Homeland Security last December. Chief in ATAC's critique was that “the submission of Canadian passenger’s details by Canadian airlines violates Canada’s laws on the protection of personal information and electronic documents, as well as laws on aeronautics”.

We are changing the law, so this quotation might be a bit out of date, but the purpose of the law would protect information.

Interestingly enough, the government has already been handing over personal information about Canadians to foreign security services for some time, even if it was against the law. Take the case of Teresa Healy.

In June 2007, Ms. Healy, the lead researcher of the Canadian Labour Congress, was the subject of a prolonged interrogation by American customs officers at the Cornwall, Ontario, border crossing when she set off a radiation detector. After it came to light that the radiation was due to medical tests, they switched the subject of her interrogation to her 1991 arrest at a non-violent protest. No charges were filed at the time, but the customs officers had her digitized fingerprints at their disposal nonetheless. She said that they told her, “Do not worry about it; we are just keeping them in case you do anything else”.

That is the truly worrying issue here. This information can be held for years and used for purposes other than what it was first provided for. Now the government will tell Canadians it is taking steps to ensure the information handed over will be only kept for a few days. The reality is that, once this information is handed out, the monkey is out of the bag. That is it for that.

The only way we can ensure the privacy of Canadians is protected is to stop this information grab by the U.S. and other countries, but the government will not protect Canadians' personal privacy.

What should have been done when the Americans and other nations demanded that we violate the privacy of Canadians? If the government had the concerns of Canadians really at heart, it would have clearly said no, but the government cynically plays the game of let us pretend. Let us pretend we are protecting Canadian privacy, while all the time working to erode the very laws protecting our privacy.

What will Canadians get for this gross violation? Not much. Maybe they will get a slightly shorter waiting time to board an aircraft, but they will get an increased risk that they will be arrested or denied boarding, by mistake, by accident or for some unknown purpose.

The no-fly list has a very dismal record, and my colleague in the Bloc referred to a number of very prominent cases that fit under that, such as Maher Arar and the late Senator Ted Kennedy.

The likelihood is that this information is going to be used in an incorrect fashion. This bill, as it stands, is a poor attempt and a miserable little bill that does nothing to protect the personal privacy of Canadians in difficult situations that we face. If the government had come forward with a bill that showed it was serious about protecting personal privacy, I could support it. I could find some way to support it. However this is not a bill that can be supported in this fashion, and there is no opportunity to change the bill in committee to the degree that it needs to be changed. That is not on. So what are we to do here? What can we do with this bill?

My sense is to send it back to the government and get it to come back with a better answer.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I want to thank the member for Western Arctic for outlining some of the valid concerns around this particular piece of legislation.

I want to touch upon one of the six principles that the European Commission working party on data collection and transmission outlined in 1998, which he ably outlined in his speech. Specifically, I want to ask him a question about the right to access, rectification and opposition principle. This principle states that the subject of the information:

should have a right to obtain a copy of all data relating to him/her that are processed, and a right to rectification of those data where they are shown to be inaccurate. In certain situations he/she should also be able to object to the processing of the data relating to him/her.

The reason I want to focus on that particular information, of course, is that recently in Canada, where we do have control of the information, we saw some egregious violations of personal privacy through the Department of Veterans Affairs.

When it comes to information that could be passed on erroneously to foreign governments, my understanding is that the person who is the subject of that information has very little ability to correct that information with that foreign government and very little ability to get his or her name removed from lists that may prohibit him or her from travelling to other countries.

I wonder if the member for Western Arctic could specifically touch upon that aspect of this piece of legislation.