Transport Committee on April 27th, 2010

[The Chair, Conservative, Merv Tweed]

Thank you and good morning, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 12.

The orders of the day are pursuant to Standing Order 108(2), a study of aviation safety and security—security concerns.

Joining us this morning from the Canadian Human Rights Commission we have Ms. Jennifer Lynch, chief commissioner; Charles Théroux, director; and Monette Maillet, director.

Thank you, and welcome to our committee.

I know that you know the procedure, so I'll let you open with some remarks and then we'll move right to questions.

[Jennifer Lynch, Chief Commissioner, Canadian Human Rights Commission]

Thank you very much, Mr. Chair.

I am very pleased to have this opportunity to contribute to the committee's study on aviation safety and security.

As the chair mentioned, my colleagues joining me here today are Dr. Charles Théroux, who is our director of research, and Monette Maillet, who is our director of policy.

The best value that the Commission can bring to you as a witness is to provide our perspective on the human rights considerations that should be taken into account when developing and implementing national security tools and measures, such as profiling.

Terrorism and other threats jeopardize our fundamental right to life and security of the person. In a free and democratic society, the protection of the population must be of paramount importance.

The Canadian Human Rights Commission recognizes that safeguarding national security is a critical function of government. It also recognizes the expertise of security agencies in developing tools and measures for this purpose.

When national security and human rights are discussed, it is often suggested that we must give up one to have the other. I come to you today to express the position of the commission that both can and must coexist.

The mandate of the Canadian Human Rights Commission covers all federally-regulated employers and service providers. This includes the transportation sector and border services. The Canadian Human Rights Act prohibits discrimination in employment and in the provision of services based on 11 prohibited grounds of discrimination. These include race, colour, national or ethnic origin, religion and disability.

In the context of national security, the jurisdiction of the Commission would be triggered when it is alleged that a national security measure discriminates against individuals based on one or more of these prohibited grounds.

This is because the implementation of national security measures such as screening of airline passengers falls under the definition of service and is therefore within our mandate. Under section 5 of our act, it is a discriminatory practice in the provision of services to deny access to a service or to differentiate adversely in relation to any individual. However, not every measure that discriminates on the basis of a prohibited ground would necessarily be disallowed. The key is whether or not the measure is justifiable.

Paragraph 15(1)(g) of our act provides this exemption: it is not a discriminatory practice if an individual is denied services “or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation”.

Human rights jurisprudence provides guidance for determining whether a measure that is discriminatory can be justified. The test would include looking at, first, the extent to which the measure is necessary; second, whether there are less discriminatory ways of achieving the same objective; third, the effectiveness of the measure; and fourth, the extent to which the infringement on human rights outweighs the benefits gained by the measure.

I will now turn to the issue of profiling. Where profiles are appropriately constructed and applied, the practice of profiling could have the potential to reduce the number of individuals who are identified for further screening. The use of profiling as a national security measure—for example, during screening at airports—raises human rights issues when the characteristics and behaviours identified in the profile are linked to one or more of the prohibited grounds. For example, profiling by identifying persons who have paid cash for a one-way ticket, do not check luggage, etc., is not linked to one or more of our prohibited grounds. On the other hand, identifying persons based on a certain race or ethnic origin would be.

As part of its mandate to develop and advance human rights knowledge, the Canadian Human Rights Commission initiated a research program on national security and human rights post 9/11. One report is the one you have before you entitled “The Effectiveness of Profiling From a National Security Perspective.” This report is a literature review of studies that have been done on the issue of profiling. It notes the general lack of scientific rigour in most of the studies reviewed. As a result, the authors recommend that further research be conducted on the use of profiling using a rigorous approach to development and validation that incorporates a solid evaluation component.

The report also mentions the challenges faced by any agency wanting to develop a scientifically based profile when the frequency of events such as terrorist attacks is very low. I must emphasize that the research has shown that there's no evidence to support the effectiveness of profiling where race or ethnic origin is the primary characteristic.

My key message to you today relates to the use of profiling as a tool in safeguarding national security. Such profiling could only be compatible with human rights principles when the characteristics used in the profile are based on demonstrable need, intelligence, and/or evidence, and documented effectiveness.

Currently, few security and law enforcement agencies are collecting data on the discretionary decisions being made by their front line personnel. There is a concern amongst many of our stakeholders that, in the absence of intelligence or evidence-based profiles, these officers may fall back on stereotypes and prejudicial assumptions in making such decisions. Absent the collection of relevant human rights-based data, it will be difficult for executive management to determine whether inappropriate profiling is occurring and to take corrective measures where necessary. For this reason, the collection of data should be a consideration at the design phase.

The Canadian Human Rights Commission has been and will continue to be available to provide support and expertise to agencies in the development of security measures and tools.

I would like to conclude with a few words about the importance of consulting with persons with disabilities to ensure that their rights are taken into account in the design of all transportation-related policies, programs, and structures. For example, our stakeholders have expressed concern that airplanes have been designed with cabins too narrow for personal wheelchairs and that the new full-body scanners are not accessible to people with certain disabilities, thus denying them the choice offered to other passengers. At this juncture in our history, at a time when Canada has just ratified the UN Convention on the Rights of Persons with Disabilities, I encourage all to make the principles of the convention a reality in everyday life.

I look forward to answering your questions.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Mr. Volpe.

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

Thank you, Mr. Chair.

Thank you, Madam Lynch, and to your colleagues for sharing your time with us today.

Madam Lynch, let me speak as just an individual Canadian. Forget about the fact that I might be a member of Parliament, other than it gives me the privilege of being able to ask a question.

I think most people are looking at this and saying, you know, here's somebody in human rights who is going to tell us whether there's been a violation of human rights as we go through the application of measures that are designed to protect us: would she not have to be an expert in the application of those measures before she offers an opinion on whether our rights have been or could be infringed?

[Jennifer Lynch]

The role of the commission in this instance, when we're talking about someone bringing forward a complaint, is for the commission to screen that complaint to determine whether or not it warrants further inquiry and whether or not it's in our jurisdiction. Consequently, if it is within our jurisdiction and it warrants further inquiry, we send the matter to the tribunal, which is an independent agency, ultimately for a hearing if the case does not settle or is not withdrawn.

Now, what we are is expert in the application of the Canadian Human Rights Act and in determining whether there has been some adverse differentiation amounting to discrimination on a case-by-case basis.

What we are doing now--we've been doing this since 9/11--is we have been working with the various communities involved and we have been helping them to become more knowledgeable and sensitized to the human rights aspects of the work that they're doing developing programs, policies, and structures.

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

But, Madam Lynch, wouldn't you agree with me that while you might be looking at infringements of the act on a case-by-case basis, the government's retort to all of that would be that national security and everybody else's safety is not on a case-by-case basis? It's really what the word “national” indicates--namely, that there is a collective need for us to adopt this particular measure.

I think you mentioned, or at least alluded to, the point that human rights or individual rights are secondary to collective needs.

So what do you say to that when the government says, “We have to do this because of national security”?

[Jennifer Lynch]

As I said in my remarks, the two can and must be found to be compatible. In other words, we have to find ways to look after collective needs while we are respecting individual rights as well.

As I mentioned, section 15 of our act does provide that there can be justification for discrimination. Having said that, however, there are certain exigencies that have to be fulfilled before the tribunal would find there is justification.

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

But the government says that the general public is looking to travel safely and efficiently, and the general public is making the decision; all we are is the interpreter of the general public's decision; the collective decision is security and safety first; we don't have to spend time thinking about whether the two can cohabit the same timeframe.

And by that I mean individual rights as opposed to collective rights.

[Jennifer Lynch]

Of course national safety does come first. However, I think maybe we're working on this concept in a different way. I'm talking—

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

I'm just being an agent provocateur, that's all. I'm already on record as not believing the government, but I just want to hear your reaction.

[Jennifer Lynch]

What I'm expressing to you is our concerns over racial profiling. I'm not talking to you about national security, but rather, how we can engage and effectively have a secure nation while not discriminating unless it's justifiable to do so.

It's impossible, really, to give a blanket answer to your question—

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

It's never possible to say you can discriminate. You can't. You never can. You can never justify discrimination. You're putting everybody who's innocent in the same barrel as those who are guilty but who share your same characteristics. That is the ultimate unfairness.

So I just find it a little troubling that somebody from the Human Rights Commission would actually say there is a moment in which there is cohabitation with individual rights and collective rights, as expressed by those who wield power and authority.

I just find that shocking, myself--period.

I think about those people--we have a diverse nation--who don't look like me, who might have a different texture of skin, who might dress differently. The more of those people you see who fit the profile, the more likely you are to say, well, in their case, it's justified for us to be as onerous as we're being.

I just find that difficult to appreciate.

[Jennifer Lynch]

Well, I'm sorry that you're shocked, sir, because we take our authorities from the Canadian Human Rights Act, which provides us with the requirement that we look at justification.

Also, there is section 1 of the charter, which guarantees rights and freedoms subject to such reasonable limits as prescribed by law and that can be demonstrably justified. We have both the charter and the Canadian Human Rights Act, which provide that in certain circumstances, discrimination can be justified.

[The Chair, Conservative, Merv Tweed]

Thank you.

I'll have to go to Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Thank you, Mr. Chair.

Thank you, Ms. Lynch. I am glad that you are here today to talk to us about profiling. I will admit that, last week, I was rather taken by surprise when one of the people in charge of Israeli security appeared before us. He openly told us that they do profiling based on body language and on behaviour. He said that they feel that scanners are useless. That is the message he delivered to us. We see the full-body scanner as one of the options available to individuals. They can choose between the body scanner or a physical search. Israelis operate in a way that's completely different from ours, and their country probably has the best airport security system in the world.

When you talk about profiling, you say that, if it is done, it must be done within the rules. There must be evidence to support this course of action. Profiling must be based on needs, evidence and tangible information, and its effectiveness must be monitored. Israelis worry about explosives, and they have not come across a method superior to that of using sniffer dogs. That is the reality of the situation. They target individuals through behavioural profiling. Once someone has been targeted, the security process is continued using officers, dogs, etc. That is the most effective method.

Is there even the remotest possibility of setting up such a system in Canada?

[Jennifer Lynch]

Sir, you have referred to the behavioural profiling done by the Israelis. Behavioural profiling is not one of the prohibited grounds of discrimination in the Canadian Human Rights Act. So a case such as that would not proceed to the tribunal for a hearing.

You've also mentioned that the Israelis also do not support the use of scanners. With the greatest of respect, we're not here as an expert on how CATSA should be doing its work.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

In Canada, we are trying to respect human rights, so even though we have introduced the full-body scanner, individuals are given the choice between being scanned or searched. The choice is a reflection of our respect for rights and freedoms. People can choose to be scanner or physically searched. In any case, there is no way around it.

These are technologies that do not meet Israeli needs. You say that body language profiling could be used. We could very well train all of our security officers or provide them with very comprehensive training to enable them to instinctively single out people who are acting strangely. That is what you're saying. Canadian laws allow for the use of these methods. Is that right?

[Jennifer Lynch]

What I am saying is that the type of behavioural profiling I mentioned in my opening statement--buying a one-way ticket, paying cash, not checking baggage and this sort of thing, or the way someone is acting, in a fugue, for example, at an airport--is not based on one of the prohibited grounds in the Canadian Human Rights Act. So we would not find it to be discriminatory if someone were given a secondary screening because they were in a fugue or had bought a one-way ticket.

Just to clarify, what the commission did is we commissioned an overall examination of the literature by a researcher, a consultant, who then gave us a report. And I am speaking from this report when I talk to you about the various concerns that have been raised.

When we are talking about racial or ethnic origin profiling--in other words, going to secondary screening because you're a member of a certain race--the research, the literature review, has noted a lack of scientific rigour in studies conducted to date about profiling overall, and has shown little scientific support for profiling at all, much less when it comes to infrequently occurring incidents, such as a terrorist attack, a school shooting, or this type of thing.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

How many complaints have you received? You receive complaints from Canadians. You can just give me a rough estimate.

[Jennifer Lynch]

We do receive complaints from individuals. I don't know if we have the number here of complaints we have received....

Yes, we have the number: we have received 12 complaints in the last few years that involve racial profiling.

There are currently two complaints before the Canadian Human Rights Tribunal that deal with the issue of profiling. One complaint relates to an aboriginal woman who felt that she was singled out for inspection when she was crossing the border due to her race, age, and sex. The other is by an individual who was denied boarding on an Air Canada flight from Vancouver to Victoria in 2004 because his name allegedly appeared on a security list. These two are before the tribunal now.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Bevington, you have the floor.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

Thank you, Madam Lynch, and your fellow workers.

I am interested as well in some of the things the Israelis talked about. Here you suggest that profiles appropriately constructed could potentially reduce the number of individuals identified for further screening. But what the Israelis do is actually identify a number of people who don't need screening; they have trusted traveller cards. They've identified about 50% of the travellers through a process using a machine with a pre-set series of questions. The machine determines the appropriateness of the person for getting the trusted traveller card.

Do you see that as a system that would be easy to monitor for human rights issues? Plus, you have the choice of either stepping into the machine and getting a trusted traveller card or not. So how does that impact on human rights issues for any of the travellers?

[Jennifer Lynch]

Certainly we would welcome the opportunity to be engaged at the front end with any security organization developing a screening technique. When we are involved at the front end, we are able to in effect give guidance as to whether or not--to use your example--the questions being asked in any way create a differentiation or discrimination.

[Dennis Bevington, NDP, Western Arctic, NT]

But fundamentally, if someone has the right to either refuse to go into the machine to get a trusted traveller card or not, does that change the nature of the human rights issue?

[Jennifer Lynch]

In this hypothetical, we don't know the questions being asked. What if the questions being asked were related to one of our eleven grounds of discrimination? One would hope not.