Public Safety Committee on April 29th, 2010

[Maria Mourani, Bloc, Ahuntsic, QC]

I have a document here from the International Civil Liberties Monitoring Group, the ICLMG. According to this document, many Canadian Arab Muslims are being targeted because of this list. It also states that many Muslim Arabs have been targeted as well.

The document also includes some facts pertaining to CSIS: since CSIS is unable to obtain information from certain youths in Canada's Muslim community because these individuals do not agree to become informants for CSIS, some of them have been put on the list as well. What do you think of that?

[C/Supt Larry Tremblay]

Mr. Chairman, I cannot speak about the activities of CSIS, but I can assert that, as far as the RCMP is concerned, the recommendations are based on actions, and only on actions.

[Maria Mourani, Bloc, Ahuntsic, QC]

I have another question. You said that there were no minors on the list, Mr. McDonald. And yet, children have not been allowed to board the plane. I should not say: “not been allowed to board the plane”. I will reformulate my sentence. The children are stopped and subject to an inspection because the name of these children have matched someone on the list.

I will give you an example. Mr. Alistair Butt, 10 years old, in Saskatoon, was going to take the plane from Ottawa with his father, mother and brother. These people were made to wait. An incident occurred a good week later. There is another Alistair Butt. I am talking therefore about false positives. This individual is a 15-year-old, living in the Ottawa region, and his name is on the no-fly list. He showed up at the Air Canada counter and wanted to take a plane between Montreal and St. John's. Another incident occurred.

These were children. You stated that the age is recorded. The name and the birth date. So I do not understand why these airlines are preventing children, with false positives, from boarding the planes.

[Gerard McDonald]

Again, I don't know the circumstances of those particular cases, but those delays in boarding would not have been a result of being on our specified persons list.

[Maria Mourani, Bloc, Ahuntsic, QC]

Are false positives taken into account when we are dealing with children? When a child goes to an Air Canada counter, or to any other airline that must check names in order to see if there is a connection, is the check done in that case, to verify if their name corresponds to a name on the list?

[Gerard McDonald]

That would be an immediate indication. If the person is under 18 years of age, immediately we would know they're not on the list. If that information were communicated to us, we would communicate back to the air carrier directly that this person couldn't possibly be a match for a person on our list.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Mr. Davies, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you for appearing before us today.

In June 2007 there was a joint resolution from Canada's privacy commissioners regarding the no-fly list. I'm sure you're familiar with that. I'm not going to read the whole resolution, but there are some very revealing parts that I wanted to highlight. It states, among other things:

The Aeronautics Act does not provide a clear or adequate legislative framework to support the Passenger Protect Program.... Transport Canada has not provided assurances that the Specified Persons List will not be shared with foreign governments or their agents...; The program involves the collection, use, and disclosure of excessive as well as sensitive personal information of travellers.... The program creates real risk of harm to individuals as a result of inaccurate or unreliable information, noting that the U.S. Department of Homeland Security recently acknowledged a significant concern about the quality of data and its underlying intelligence in U.S. lists...;

The resolution calls on the government to refer the passenger protect program to a committee for full debate and scrutiny. It calls on the government to enact legislative processes to govern the use of a no-fly list, and it calls on the use of the no-fly list to be suspended until these actions have been taken.

Have any of those recommendations been put in place, to your knowledge?

[Gerard McDonald]

I'm not sure about those specific recommendations, but I can point out that the Office of the Privacy Commissioner did do an audit of the program. That audit was conducted in November 2009, and concluded that the passenger protect program does indeed comply with the Privacy Act, the Aeronautics Act, and the applicable regulations in policies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay, now I'm going to quote from a report released by the International Civil Liberties Monitoring Group. They said:

In 2008, Transport Canada’s Office of Reconsideration asked two independent security advisors, Allan F. Fenske and Wendy Sutton, to review the complaint of a man whose name was placed on the SPL and barred from flying. In their report, dated October 28, 2008, Mr. Fenske and Ms. Sutton indicated the PPP is plagued with serious problems, and its legal and regulatory framework needs to be reviewed.

Has such a review taken place, and if so, what was the result?

[Gerard McDonald]

I think we're constantly reviewing our practices and programs to try to improve on it as best we can. We have not undertaken any specific review with respect to the comments of the B.C. Civil Liberties Union, but we are in the process of doing a complete review of our aviation security regulations, which would comprise a review of the identity screening regulations, to which this program applies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay, I want to be a little bit more focused, because this was Transport Canada's Office of Reconsideration that asked the two independent security advisors to review the complaint. Is that correct?

[Gerard McDonald]

Yes, that is correct.

[Don Davies, NDP, Vancouver Kingsway, BC]

They gave a report that said it's plagued with serious problems and the framework needs to be reviewed. I'm not talking about ongoing reviews that every organization does.

Was a specific review done to comply with that recommendation? That's what I'm trying to find out.

[Laureen Kinney, Director General, Aviation Security Directorate, Department of Transport]

There was a significant review of our processes, procedures, and our system in place when we received that report, and the issues raised were looked at. It's not something I can comment on in detail because it is a subject of litigation.

[Don Davies, NDP, Vancouver Kingsway, BC]

Is there a written report that's been produced of that review?

[Laureen Kinney]

No.

[Don Davies, NDP, Vancouver Kingsway, BC]

No.

Okay, I want to turn a bit to the U.S. secure flight program, which I'm more concerned about right now.

Recently, Canadian airlines have been told that they have to send API--name, date of birth, etc.--but also all information on the reservation system to the Department of Homeland Security within 72 hours of boarding a flight in this country. U.S. Homeland Security will then send a directive deciding whether or not a Canadian can board, or whether a passenger should be sent for secondary screening or banned from the flight.

We were told that Canada had secured an exemption for domestic point-to-point flights within Canada, even if it flew over the United States, but we're finding out now that there have been some incidents in which people were banned from flying even under those circumstances. There is a well-known case, I think it was Mr. Almalki flying from Windsor to Ottawa last year, who couldn't fly.

We're told that the U.S. secure flights program does not exist in that situation and that we have that exemption. Is that true? Do you know if that's true? Do we have that exemption?

[Gerard McDonald]

Yes, we do have that exemption.

[Don Davies, NDP, Vancouver Kingsway, BC]

Do you know why Mr. Almalki was barred from flying last year? Does anybody know why that is?

[Gerard McDonald]

I can't speak to that. That would have been a decision of Air Canada.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay.

It is the case, though, that Canada has to send information on flights to Homeland Security for flights that don't touch the U.S. If a Canadian is flying from Canada to Mexico, or Canada to South America, not even touching the States but flying over its airspace, Canadian airlines have to send information to Homeland Security. Is that right?

[Kristina Namiesniowski, Assistant Deputy Minister, Strategic Policy Branch, Department of Public Safety and Emergency Preparedness]

Perhaps I can attempt to answer the question.

The U.S. secure flight program is one that will apply to flights that fly within domestic United States, continental United States, as well as flights flying to the United States and flights that are flying over the United States. At this point in time, they have yet to implement the overflight provisions, so the flights that would leave Canada and fly to Mexico are not covered by the secure flight program, but that is imminent.

[Don Davies, NDP, Vancouver Kingsway, BC]

It's imminent. Can you confirm if Air Canada is complying with the secure flight program?

[Kristina Namiesniowski]

For any flights that Air Canada has that would fly within the domestic United States, my understanding is that the domestic implementation of that portion has happened and that they are in the process of moving towards the implementation of flights flying from Canada into the United States.

There are two programs in the United States. One of them is called APIS, and one of them is called secure flight. The APIS program is one that is used by customs and border protection, and it's very similar to a program Canada has where advanced passenger information, the passenger name record, is sent to the U.S. government, and it's sent for the purposes of customs and immigration admissibility, as people land in the United States and have to go through customs.