Public Safety Committee on April 29th, 2010

[The Vice-Chair, NDP, Don Davies]

Do you happen to know if the situation operates in reverse? Is Canada requiring American airlines to provide information about American citizens to Canadian airlines for any flights originating in the United States that may fly over or into Canadian airspace?

[Micheal Vonn]

I've never heard any suggestion that we have, or how it might be vetted if we were to do so.

[The Vice-Chair, NDP, Don Davies]

In preparing for this session, I pulled some articles. There was a very good article by Becky Akers from March 17, 2010, in the Ottawa Citizen. She points out in this article that at the U.S. government's behest, U.S. airlines have refused boarding to children, Cub Scouts, singer Cat Stevens, Senator Ted Kennedy, and Representative John Lewis, who is a Democrat from Georgia. These are the types of people who have been grounded as a result of the Department of Homeland Security and the U.S. Transportation Security Administration instructions.

Do you have any concerns that a list that is furnishing this information may be used for political reasons, in addition to security?

[Micheal Vonn]

We have those concerns, absolutely, and they're shared by our colleagues at the American Civil Liberties Union. The concern about political profiling, along with racial and religious profiling, is real. The people you described in that list very much echo the people who complain to us about Air Canada's domestic use of the U.S. list. They include librarians, pastors, and retired persons.

Yes, we are absolutely convinced that these people are not legitimate security threats that we're dealing with. When they're not false positives, we have recourse to these other kinds of profiling that we're concerned about.

[The Vice-Chair, NDP, Don Davies]

Madame Bernier, I believe you heard the testimony earlier when I was asking departmental officials about the original concerns of the Privacy Commissioner from June 2007. It was quite a litany of very serious concerns about the Canadian no-fly list and the program. One of the responses was that the Privacy Commissioner cleared the program in 2009, at least according to the officials. I may not be doing justice to the evidence that I heard, but that was my understanding.

Can you tell me if it is the current position of the Privacy Commissioner's office that the Canadian no-fly list and this program are fine as far as you're concerned?

[Chantal Bernier]

No, I can't, because we have never analyzed it in its entirety. We still have outstanding issues. One of the first paragraphs of the audit specifies its scope, and it's a limited scope. It is to ensure whether the personal information was properly and securely held.

However, as I've mentioned before, we consider that the effectiveness of the program is still an outstanding issue, that it needs to be addressed, that the authorities are accountable to justify it, and that if its efficiency is never demonstrated, then the privacy invasion it entails needs to be put in question.

[The Vice-Chair, NDP, Don Davies]

Thank you.

Go ahead, Mr. Rathgeber. You have seven minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Vice-Chair, and thank you to all the witnesses for your appearance and for your evidence here this afternoon.

Ms. Vonn, you indicated in the last round of questioning that you believe there is very little awareness among Canadians as to these deficiencies in this current system, as you describe them. Why do you believe that is the case? Why do you believe there is so little awareness among Canadians? Tens of thousands of Canadians fly every day. Why is there so little awareness?

[Micheal Vonn]

I'm referring to the fact that the U.S. no-fly list is going to be de facto imposed on Canadians for a raft of reasons and is in fact imposed now for various means. I suggest that the confusion we were seeing in this committee has to do with which list is which, and who's who, and what the Canadian no-fly list is. When these people are stopped, do we read about it in the newspaper? What does that mean? Is it Canada, the U.S., Liberia? Where is it from?

There is such a Byzantine complex of systems right now. I do not believe, and every radio call-in show that I've been on in relation to this subject convinced me, that Canadians do not know what is going on.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Do you really believe it's a lack of awareness, or do you believe it's a lack of concern? What I mean by that is that Canadians don't share your concern, and I believe and would suggest to you that the vast majority of Canadians, when forced to form a balance between national security and individual security of airline traffic and their privacy rights will err on the side of caution and promote their security interests over their privacy rights.

[Micheal Vonn]

I would suggest there has been a shift away from that notion, which has been demonstrated through various studies after 2001. When you simply put it at privacy, you're right, but of course it's so much more than that.

We've been discussing, and I keep hammering on this notion--it's section 7--of the security of the person being stranded in a foreign country and not being able to get home, not being able to fly within your own country. We are not just talking--and believe me, I'm a privacy advocate--about privacy being minimized here. We are not just talking about privacy. We're talking about the most imperative security of the person you can imagine.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But certainly security of the person is also imperilled if one is on an airplane and another individual gets on that airplane carrying explosives. That, too, imperils the security of the person. You will agree with that.

[Micheal Vonn]

Absolutely.

No one is suggesting that appropriate, proportionate, efficacious security programs should not be employed on airplanes. There is now not one iota of evidence that no-fly lists are any of those things.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You talked about Canada's alleged threatened sovereignty--I'm paraphrasing you a little bit--and the legal vacuum that you believe is created by an inability to connect the dots between the legislation and the regulations. Am I more or less paraphrasing what you said?

[Micheal Vonn]

That's correct.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You're a lawyer, as am I. Are you familiar with the Chicago Convention of 1944?

[Micheal Vonn]

No, what is it?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

It is a treaty to which Canada and the U.S. are signatories. I'm not an expert on international law, but I know from my perfunctory reading of the Chicago Convention of 1944 that 52 states plus Canada signed a treaty that's still in force today, which states that each country maintains sovereignty over its individual airspace but determines who can enter its airspace.

I know we have only a couple of minutes left, and we're not going to be able to get into a full international law debate, but you'll certainly agree with me that the ability to sign binding treaties is an aspect of the sovereignty of a nation.

[Micheal Vonn]

Oh, absolutely. No one is disputing that the issue here is not that. And as I've said, Canada has sovereignty over its airspace, as does the U.S.

What is being asked for is a complete reverse of what is the standard norm. And as I have said, none of these things ever rebalances in the other direction. We have only seen this go in the direction of increased securitization and militarization.

So insofar as we have never seen this enforced in this manner, we should be concerned, and we should use our sovereignty to suggest our displeasure.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay.

The last high-profile incident occurred just before New Year's, when an individual boarded an airplane in the Netherlands and flew over international airspace, probably over the airspace of either France or England, and landed in Detroit, thankfully without incident. And you all know the incident I'm talking about.

My question is to Mr. Tassé from the International Civil Liberties Monitoring Group. Yours is an international organization, and you know this is an international problem. It's not just Canadians who are forced to balance privacy rights against national security and security of individuals on airlines. Is there a model? Is there some other international model or some other country that is doing this better than Canada is, or are all the sovereign states dealing with an imperfect solution to a very serious problem?

[Roch Tassé]

In other countries, first of all in the U.K., I believe measures such as a no-fly list have been legislated, contrary to the situation in Canada, where it was put in place through the back door.

We're not an international organization. We're a Canadian-based organization.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'm sorry.

[Roch Tassé]

So we know we need measures for security, but any measures for more security have to respect due process and the principles of fundamental justice. People have the right to know the evidence against them, and they have the right to have this evidence in order to defend themselves. There are no such mechanisms in the passenger protect program, and there are even fewer in the secure flight program.

If Canada plans to develop a new program to mirror the secure flight program to deal with this issue of sovereignty, we have to make sure it is legislated, that it is debated in Parliament, and that we hear the opinions of Canadians and the representatives of Canadians in this House, which has not been the case with the passenger protect program.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay, so you're a Canadian organization but you monitor international civil liberties?

[Roch Tassé]

Yes.