Transport Committee on April 27th, 2010

[Dennis Bevington, NDP, Western Arctic, NT]

Okay. So as long as they're not...and that's what would have to happen with those questions. They would have to be vetted in a way that would assure that.

I don't think we want to go into profiling again, because I think we went through that experience in the Second World War. We're still having to apologize for the great inconvenience and hardships that we applied to a whole bunch of people there. We've had that experience in Canada with profiling, and we've said that's not what we want to do.

Is that...?

[Jennifer Lynch]

With regard to racial profiling, correct; other types of profiling--as I say, such as behavioural profiling--would presumably not offend the Canadian Human Rights Act.

[Dennis Bevington, NDP, Western Arctic, NT]

Well, how close can you go, with behavioural profiling, so that it becomes ethnic or racial?

[Jennifer Lynch]

Again, on a case-by-case basis, we'd have to look at that.

[Dennis Bevington, NDP, Western Arctic, NT]

Yes, okay, but likely, if you're taking people out of the screening process by their choice to have themselves accredited, that would that be less likely to run into human rights issues than behavioural profiling when it comes to choices about how to proceed here?

[Jennifer Lynch]

I'm suggesting that behavioural profiling should not run into issues of discrimination. Racial profiling clearly would. And--

[Dennis Bevington, NDP, Western Arctic, NT]

If someone has a racial tendency not to look into somebody else's eyes because they consider that to be inappropriate behaviour, and that's part of the behavioural profiling, wouldn't you say there is a bit of a problem there?

[Jennifer Lynch]

Certainly there could be. That's why it's difficult to make blanket statements, and I'm reluctant to make a blanket statement.

However, what we...and I completely agree with you; we do not want to see racial profiling, and there is no scientific basis for such profiling.

[Dennis Bevington, NDP, Western Arctic, NT]

You don't like making blanket statements, but here you say, “Terrorism and other threats jeopardize our fundamental right to life and security of the person.”

That must be based on some risk assessment. Is that not the case?

Many things fundamentally jeopardize our lives and security, but we don't put boxes around them because they're not that important.

Isn't there fundamentally some need for risk assessment within this whole question of human rights? Don't you, in order to actually determine whether an issue has impact on human rights, have to look at the risk assessment of the particular act?

We've had two bombings on Canadian airplanes in my lifetime. One of them was by a terrorist group; the other was for personal gain. Yet we don't profile people for personal gain when they're getting on the airplane, do we? Do we make those choices?

I'm trying to understand how we've come to a point where security has taken such a large part of our lives without correct and very careful risk assessment.

[Jennifer Lynch]

I certainly agree with you, sir, that the risk assessment applies to national security. We don't use the language of risk when we're talking about human rights, sir.

In terms of my general statements, of course, what I'm saying is that I'm reluctant to make general statements about matters that could come before the Canadian Human Rights Commission that could require us, in a specific set of facts, to make a certain determination.

I can't come before a parliamentary committee and make bald statements that might be used later to suggest that we have a leaning one way or the other. We have to look at each case on its facts.

On the other hand, the Canadian Human Rights Act has a quite lyrical purposive section that says that the purpose of this act is to give effect to the principle that every individual should have the right, equal with others, to make for themselves the life that they're able and wish to have, free from discrimination. It's certainly what inspires me and my colleagues every day.

To that end, where we have a large mandate, to be able to get ahead of the problem, to sit down with the organizations that are engaged in developing security measures, structures, etc., and help them to be sensitive at the front end to the questions they ask, the methodologies they develop, and the structures, as I mentioned, there will be a compatibility, there will be fewer complaints, and people will be able to make for themselves the lives they're able to and wish to have, free from discrimination.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair.

Thank you to our witnesses for appearing.

Of course, we are engaged in a study of air security and safety. I appreciate your opening intervention and the recognition that there are threats to our national security. I think there's a certain amount of self-evidence to a statement like that.

Further in your intervention you say that security and rights can both be respected. The challenge with air safety is how to increase our productivity while maintaining security and charter compliance. I have a few questions along those lines and want to probe some of the things you talked about.

I want to start with the issue of behavioural analysis. Let me see if I can explore where this may touch on an area that, for example, may produce a justifiable discrimination.

If a security agency has credible intelligence of a specific threat that may involve country of origin....

Sorry, I'm complicating my issues here. Let me put behavioural analysis aside. Let me explore the issue of a justifiable discrimination based on one of the grounds.

If a credible piece of evidence contains country of origin that may imply a certain ethnicity emanating from that country, could that be deemed a justifiable discrimination with respect to security?

Yes or no...or can you explore that a little bit with me? I just want to see how that would be handled under the Canadian Human Rights Act.

[Jennifer Lynch]

Right. Well, in developing a measure that has a discriminatory impact, the onus is on the security and law enforcement agency to justify it--and I emphasize the word “justify”. Guidance has been provided by jurisprudence. The test includes looking at whether the measure is necessary, whether there are less discriminatory ways of achieving the same objective, the effectiveness of the measure, and the extent to which the infringement on human rights outweighs the benefits gained.

On the process, if we're talking about something that has happened and someone wishes to bring a complaint about it, they would file a formal complaint with the Canadian Human Rights Commission. We would first check to see if it was within our jurisdiction, and then determine whether it warranted further inquiry. If not, it would be dismissed; if yes, it would go to the tribunal.

Of course, within that we have a complete structure for dialogue mediation and that sort of thing, which can often create systemic change and policy change within organizations.

[Jeff Watson, Conservative, Essex, ON]

If I understand your intervention correctly, we're trying to avoid indiscriminate use of stereotyping simply because we think a particular ethnicity might be a higher risk. I was talking about the specific instance where there might be a credible piece of information. You'd referred to collecting data on discretionary decisions being made by front line personnel, and some other things.

Presumably the collecting of data would be the substantiation that there is a credible piece of intelligence to form the basis of a temporary use.... That's more what I was getting toward.

I guess we could move on to behavioural analysis, which would not be the same as involving, as you've stated, any type of racial or ethnic profiling. We're talking about somebody's behavioural characteristics--whether they are exhibiting stress, and those types of factors that might give rise to consideration for security.

You said that behavioural analysis was not a prohibited ground and therefore wouldn't be considered. But that's not the same as offering an opinion about whether you consider it should be a prohibited ground.

I don't know if you want to venture into that one or not.

[Jennifer Lynch]

Thank you. It's not anything we have ever looked at, and I certainly wouldn't want to offer an opinion without looking at it from many different perspectives.

[Jeff Watson, Conservative, Essex, ON]

Okay.

I'll move on to the trusted traveller program, which I think Mr. Bevington began to pick up on. The western hemisphere travel initiative in the United States forced a certain amount of compliance on Canadians travelling to the United States—programs like NEXUS air, NEXUS land, clearance as well, expediting travel for those who cleared a certain amount of security threat in pre-interviews and a process of questionnaires.

I presume you haven't seen what the U.S. questionnaire would look like, but what if this program were considered to be expanded to domestic travellers as a means of clearing a certain amount of domestic air travel? Could that be charter-compliant? If so, how could that be rights-compliant? Are you concerned about the accumulation and handling of information in trusted traveller programs? Does that pose rights risks for individuals?

[Jennifer Lynch]

With regard to your latter question, I think that's a privacy question you're posing. Certainly we've had dialogue with the Privacy Commissioner; however, with respect, I refer you to her for any comments.

Again, with the greatest of respect, I can't comment on something I haven't seen on whether it would or would not be charter-compliant.

As well, I hope this committee does understand that we're not security experts, we're rights experts. We do interact—of course that's our job—but we can't give opinions on the security aspects of the programs.

If we're going to give comments on the rights aspects, as I've mentioned to your colleagues, I would, with respect, need something much more specific.

[The Chair, Conservative, Merv Tweed]

Thank you.

The last couple of minutes go to Ms. Crombie.

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

Thank you, Ms. Lynch. It's a pleasure to meet you.

I think what I'm hearing is discrimination if necessary but not necessarily discrimination.

I wonder if you might want to comment on this, and justifiable discrimination, because can't discrimination always be justified in the interests of national security?

[Jennifer Lynch]

No. I guess I could repeat myself, but the comment I made in my opening statement is that it can only be justifiable if it meets certain criteria. The work that we're doing is to meet with the security organizations and relevant departments to engage in developing processes and measures that are not going to be, on their face, discriminatory.

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

I understand; I understand. Let me move on, though.

The science of behavioural profiling—I did have a chance to read the report, which I found fascinating—is still in its infancy. We're still gathering information. I understand that Canada's in the lead, in fact, internationally on this behavioural profiling science, yet we have very few investigators.

Are we not concerned, since the science is still in its infancy, that there would be a tendency for those investigators to fall back on stereotypes and prejudicial assumptions?

In addition, could you comment on whether enough consideration—Mr. Bevington went there earlier—is given to cultural sensitivities? As we know, in some cultures it's inappropriate for a man and a woman to lock eyes. Will that not be taken as perhaps a sign of nervousness and hence that individual might be put in a different category as a result?

[Jennifer Lynch]

I read the report the same way that you've read the report, and that is that there is a concern about a complete lack of scientific evidence and that because law enforcement agencies are not collecting data about responses on the front line, there isn't even a foundation to start with in order to determine whether there is profiling. There is a certain assumption that there is some profiling, and if so, has it been effective, etc.

What the literature has been able to determine is that in cases such as school shootings and terrorist attacks, there is such a lack of frequency that this kind of profiling has even less chance of being effective. Also, there is this chance of terrorist acts of substitution. In other words, while we're profiling males of a certain race, they substitute females suddenly—this sort of thing.

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

I'm running out of time, I know.

[The Chair, Conservative, Merv Tweed]

I have to end it there, I'm sorry.

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

I just want to know if there's a better way.