Transport Committee on Nov. 16th, 2010

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Chair, bluntly, I have no difficulty, for the most part, in relation to this motion by Mr. Guimond, but I see that the minister has shown up, and I know his time is extremely valuable. If we could move this to the end and then deal with it at the end, quite frankly, on a cooperative basis, I don't see much problem with that.

I think we should take full advantage of the minister's time while he's here.

[The Chair, Conservative, Merv Tweed]

Do we have agreement for that?

So we'll defer this to the last five minutes of the meeting and we'll proceed with the minister?

Monsieur Guimond, are you okay if we defer it to the last five minutes to finalize it?

Thank you.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

And Sukh, you can have as many five minutes as you want.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Oh, thank you.

[The Chair, Conservative, Merv Tweed]

Okay. With that, we'll open the second part of our meeting.

Pursuant to the order of reference of Tuesday, October 26, 2010, we are here to discuss Bill C-42, An Act to amend the Aeronautics Act.

Joining us at the table today is the Honourable Vic Toews, Minister of Public Safety. I'll ask the minister to maybe introduce the people at the table with him and then proceed with opening comments.

Please begin.

[Vic Toews, Conservative, Minister of Public Safety]

Thank you, Mr. Chairman.

The individuals with me here today are: from Public Safety, both the director for North America and the assistant deputy minister of strategic policy; and from Transport Canada, the director general of aviation security.

Mr. Chairman, I have some opening remarks. May I proceed?

[The Chair, Conservative, Merv Tweed]

Please.

[Vic Toews, Conservative, Provencher, MB]

Let me take this opportunity to thank the committee for the invitation to appear before you today. It's a pleasure to be here to assist with your deliberations on Bill C-42, An Act to amend the Aeronautics Act.

Before describing the legislation in front of you, I'd like to take a few moments to briefly put it into context. Members of this committee will know that shortly after the tragic events of September 11, 2001, the United States government quickly implemented a number of security measures, as did Canada. One of these involved enhancing the ability of Canadian air carriers to work with their international partners, in particular our American friends to the south, to deter and detect terrorists.

Specifically, the former government, the Liberal government of the day, introduced Bill C-44, which amended section 4.83 of the Aeronautics Act. The amendment was designed to allow Canadian air carriers to provide the U.S. with passenger and crew information for all flights destined for that country. That is what it did, and the bill received royal assent on December 18, 2001, less than one month after it was introduced in the House. Simply put, the legislation before us today will do the same thing for any Canadian flights that fly over the continental U.S. airspace on their way to destinations such as Mexico or the Caribbean.

Aside from general security considerations, the rationale for passing this bill is much the same as it was in 2001. As the then Minister of Transport, Minister Collenette, noted at committee hearings:

Any sovereign state, whether the U.S., Britain or anyone else around the world, has a right to know who is coming into its country, whether by land, sea, or plane.

He also noted:

Under the Aeronautics Act, carriers are obliged to operate under the legislation of another country once they enter its air space.

This is in line with international law, which recognizes the right of any country, including Canada, to regulate foreign air carriers entering that country's airspace.

In response to the events of 9/11 and the subsequent 9/11 commission report, the U.S. passed the Intelligence Reform and Terrorism Prevention Act of 2004, which among other things called for the government to repatriate from airlines the responsibility for checking passenger manifests against the U.S. no-fly and selectee lists.

In 2008 the U.S. published the secure flight final rule, spelling out how the U.S. government intends to implement the law. The secure flight final rule outlines what steps all domestic and international air carriers will need to take for flights to, from, within, and over the United States.

The final rule stipulates that airlines are required to provide each passenger's full name, date of birth, and gender to the Transportation Security Administration before departure for all domestic and international flights landing in the U.S., as well as those that fly over U.S. airspace. The TSA, under the final rule, has assumed responsibility for checking airline passenger manifests against selectee and no-fly lists so that individuals who have been identified as posing a security threat are prevented from carrying out a possible act of terrorism.

The United States is implementing the final rule in phases. Domestic flights and most flights to and from the U.S. are already sharing secure flight information. The U.S. hopes to implement secure flights over continental U.S. airspace by the end of this calendar year.

Members of this committee will know that our government is committed to working with our international partners to enhance aviation security, both here in Canada and around the world.

Last December, the world was once again reminded of the threat terrorism continues to pose to those of us who choose to travel by air. A man on Northwest flight 253 on its way to Detroit attempted to detonate an improvised explosive device. We know that the flight spent a lot of time over Canadian airspace.

The threats to our country are real. We therefore need to remain vigilant and continue working with our partners to ensure the safety and security of our citizens. And that is what our government is doing. Over the past 12 months we have actively engaged with the United States and other international partners around the world to strengthen our collective capacity to address aviation threats.

At the International Civil Aviation Organization general assembly meeting this past September, nations agreed to adopt strengthened aviation security measures. In addition to Canada's Passenger Protect program introduced in 2007 as a way to prevent persons who pose an immediate threat to aviation security from boarding a flight, in the weeks following the attempted terrorist attack on Christmas Day the Government of Canada took additional steps to strengthen aviation security.

This included purchasing explosive trace detection equipment and full-body scanners; announcing its intention to develop a passenger behaviour observation program; and providing funding of $1.5 billion over five years to help the Canadian Air Transport Security Authority strengthen the security of our aviation system and protect air travellers.

We have also published our intention to introduce changes to the Canadian aviation security regulations in order to ensure that our domestic airports have the safest and most effective security systems possible. But the threats remain and they are evolving.

On October 29, 2010, cargo planes en route from Yemen were found to have explosives on board. Canada acted quickly. All air cargo originating from Yemen or transiting through Yemen is now banned from entering Canada.

We are well-placed to further strengthen our air cargo security measures moving forward. Our government committed funds of $95.7 million over five years to further enhance air cargo security at Canadian airports by building on the air cargo initiative unveiled by Prime Minister Stephen Harper in June 2006.

These are all important initiatives. All will go a long way toward helping to fight terrorism and protect the safety and security of Canadians--something that our government has made a top priority since we were first elected in 2006.

As important as these initiatives are, however, our government is also acutely aware of the need to protect privacy and individual rights, as in the United States. During the development of the Secure Flight program, we reminded the Americans that our countries have bolstered security on both sides of the border and in our shared airspace, in line with our respective legal requirements, and in line with our interest in protecting the privacy and human rights of passengers.

We formally raised a number of issues with them as they were developing their final rule, in order to influence its final outcome. We stressed to them that every effort would need to be made under Secure Flight to guard against false matches, which are not only inconvenient and disruptive to both the professional and personal lives of travellers, but also potentially damaging to their reputations.

We noted that transparency and redress are key elements to any passenger-matching program. We indicated that passenger information should not be vetted against any list other than those used to maintain aviation security. We also expressed concern about data retention periods.

The United States is of the view that Secure Flight will enhance the security of domestic and international commercial air travel through the use of improved watch-list matching, while also facilitating legitimate passenger air travel and protecting individual rights through the use of mechanisms such as a comprehensive privacy plan, and the Department of Homeland Security's traveller redress inquiry program, otherwise known as TRIP.

Our government also pushed for and received an exemption from Secure Flight for all Canadian domestic flights. These are flights from one Canadian city to another that fly over U.S. airspace. That's important, since some of our domestic flights will normally spend a majority of their time in U.S. airspace.

In a perfect world, initiatives such as Passenger Protect and Secure Flight would not be needed, but the reality today is that every government can and will take action to protect its citizens against the threat of terrorism. We therefore need to work together to ensure that we continue to facilitate the legitimate movement of our citizens across each other's borders, while also taking action to enhance our joint security. This is what Bill C-42 will do, while also helping to ensure that Canadian travellers can continue to fly to international destinations in the easiest and most cost-effective way possible.

Thank you.

Mr. Chair, I would be happy to answer any questions the committee might have.

[The Chair, Conservative, Merv Tweed]

Thank you, Minister.

Mr. McCallum, I'll just advise you and the committee that we have limited time, so please get in as much as you can in the seven minutes.

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

Thank you, Chair.

Thank you, Minister, for joining us today.

It's my understanding that the U.S. is prepared to exempt countries, including Canada, if we can put in place a system that is comparable to theirs. Have you considered that possibility? It would be a lot less intrusive in terms of privacy concerns. Why can we not do it ourselves in a manner similar to theirs and thereby avoid all of this?

[Vic Toews, Conservative, Provencher, MB]

I'll let the officials answer that, but my understanding is that Canada, of course, is not providing the information: this is information being provided by the airlines to the American authorities.

In order to set up a new institution, which would then take in information from passengers coming to Canada or in Canada who would then be overflying the United States...would necessitate the creation of an entirely new administrative body. My understanding is that the cost would be somewhere in the neighbourhood of $150 million over and above the cost that this puts us to. So the issue is a significant one in terms of cost.

I don't know if there are any further details on those costs from the officials.

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

Perhaps I could just add that it's not simply an issue of cost. There is also an issue of what the U.S. expectations would be of Canada developing a comparable program. We did have some initial discussions with the U.S. government, and their expectation would be that, at a minimum, Canada would run the U.S. no-fly list, which from a legal perspective we felt would be quite difficult for us to do.

I think the other issue is also the time it would take to put in place a comparable program. The U.S. government has taken a number of years to develop the Secure Flight program—I would say it's been a minimum of five to seven years—and given the timing of the program in its implementation, there would have been insufficient time for Canada to proceed with the development of such a program, if a decision had been made to do so.

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

I would have thought it would be less bad for Canada to run this U.S. list than for the U.S. to, because we're not quite sure what the U.S. will do with this information.

I guess my next question would be whether the American privacy act is legally binding in the case of a Canadian flying over the United States.

[Vic Toews, Conservative, Provencher, MB]

I'll let the officials continue on from my comments, but it's my understanding that the same legal protections are in place today in respect of this list as there were with respect to the list your government provided to the Americans in 2001-02 with the provision of that information. So in terms of protection, it has not altered in any way. The same protections that you insisted upon back in 2001-02 are presently in place.

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

That's not my question. We're now extending the rule to flying over the U.S., as opposed to landing in the U.S. My question is whether the American privacy act is legally binding in the case of a Canadian flying over the U.S.

[Vic Toews, Conservative, Provencher, MB]

What I can say is that the privacy rules in place today have not changed in terms of the protection they afford to those who either fly into the United States and land in a particular city or those who fly over American space. The protections are identical.

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

I wonder if one of the officials can give us....

I don't want to use too much time, but all I need is a yes or a no. Is the American privacy act legally binding in the case of a Canadian flying over the U.S.? Yes or no?

[Kristina Namiesniowski]

I think, Mr. Chair, in terms of answering that question, what we can say is that the U.S. Secure Flight final rule does stipulate the kind of privacy provisions that the U.S. government is taking into account in terms of how it intends to treat the information that airlines and air carriers will provide to the U.S. government.

They've made clear in their rule that the information is used for aviation security and national security purposes.

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

All right. It's my understanding that the answer to that question is “no”--that we might get assurances, but the U.S. is not legally required to give the same provisions to Canadians as to Americans under their privacy act.

The minister talked about the time that would be required to implement a Canadian system, but that brings up another issue. The government has had a long time to act on this, you've known about this for a long time, and the bill itself is just one paragraph long, so why did you choose to wait until June 17--the last sitting day before the summer break--to introduce this legislation? Was it your goal to try to force the opposition into passing it without proper scrutiny?

If the deadline is the end of the year, you certainly haven't given us much time. I don't see why you couldn't have brought this bill forward many months earlier.

[Vic Toews, Conservative, Provencher, MB]

The final rule came out in 2008. That was when we first learned of how the Americans would actually spell out how the U.S. government intended to implement the law. It set out the rules they would carry out.

At that point we continued to negotiate with the Americans, looking for exemptions from that rule. In fact, the Americans did provide us with a very important exemption, especially looking at the southern Ontario situation: individuals flying from Toronto, let's say, to other parts of Canada would, for a large part of many flights, cover American airspace; the Americans exempted us from that final rule as a result of the negotiations.

The negotiations continued until late in the day. At the point that we felt there could be no further progress made in terms of exemptions, we were also advised in no uncertain terms that the Americans intended to implement the law at the end of this calendar year, so it became very important then for us--recognizing that no further negotiations were available to us and that we had the best deal we could get under the circumstances--to bring in the legislation.

Given that the changes in terms of privacy and roughly the information being provided were the same as what had been negotiated by your government some years ago, we felt that this would be the appropriate time to bring the legislation forward.

[The Chair, Conservative, Merv Tweed]

I have to interrupt there.

Monsieur Guimond, vous disposez de sept minutes.

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

Thank you, Mr. Chair.

Thank you for your testimony, Minister. We know that Canadian and American no-fly lists have limitations. They contain mistakes, some of which can be very serious. We know that, in the United States, Senator Ted Kennedy, who was not known as a terrorist, was denied boarding because his name was on the U.S. no-fly list. We know that the name of a six-year-old girl found its way onto the list at some point. What kind of guarantee is there that the lists are reliable?

To avoid an overly long answer, I will get on with my second question right away. How can we be sure that Americans will not misuse personal information they are given? As a Canadian minister, how can you be sure that the Department of State or the U.S. Department of Homeland Security will not misuse the information? Where's the guarantee that this won't happen?

On page 18 of your speaking notes, the following is stated: “We also expressed concern about data retention periods.” For how long will Americans retain the data? Did you express concern because you were told the Americans would keep the information for too long? For how long will they retain the data?

[Vic Toews, Conservative, Provencher, MB]

My information, first of all in respect of the second question, is that the American law outlines that Secure Flight is a program designed for aviation security and terrorism purposes, and not for any other purpose. My understanding of the American law is that it would be unlawful to use it for any other purpose.

Second, passenger information that is confirmed as not linked with terrorism will be erased within seven days. Where there's confirmation that there's no connection, it will be erased within seven days.

In respect of the issue you've raised and we've raised, as a government, because we wanted some redress mechanism to ensure that if someone was mistakenly put on the list there would be some mechanism to address that, the U.S. Department of Homeland Security's TRIP program, which I talked about earlier, was designed to assist all individuals, of any nationality, who seek assistance and resolution regarding difficulties they've experienced during travel to or across American borders. So the Americans have specifically set up a program to deal with that.

One of the concerns, of course, is the issue of French language because it's not a Canadian program. The Americans don't offer that program--this is their program, not ours--in French. The American government recommends that Canadians who prefer to use that official language contact the U.S. embassy or consulate to obtain bilingual assistance in their native tongue.

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

What private information will be shared with the Americans? What type of data will be transferred to them?

[Vic Toews, Conservative, Provencher, MB]

As I understand it, the name, the date of birth, and the gender of the individual are required.