Transport Committee on Nov. 25th, 2010

[Micheal Vonn]

Thank you.

The idea that international law recognizes nothing but sovereignty is a grave error. International law requires that sovereignty be exercised in conformity with the rules of fundamental justice. As a sovereign nation at international law, you are not allowed to subscribe to any arbitrary regime that you wish. International law requires that you comport with certain standards.

If the exercise of U.S. sovereignty enacts a regime that does not adhere to international legal standards, which is what I am saying, then they are in breach of international law regardless of their sovereignty. Canada's enactment of a bill complicit in this breach is going to be challenged through the Canadian courts on the grounds of both international law and the charter. That is my clarification.

[The Chair, Conservative, Merv Tweed]

Ms. Crombie.

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

I thought Mr. Davies hit the nail on the head when he said that the government believes it's intrusive to ask citizens to submit basic information about themselves in a census, yet it is willing to allow a foreign government access to more detailed information about its citizens—their addresses, medical conditions, dietary restrictions and preferences, e-mails, and frequency of travel. Do you see this as a bit ironic?

[Dominique Peschard]

It shows that the information required goes beyond the need for security. When people want to go to the United States, it's quite normal that the United States have proof of their identity.

But why do you need all this information on people who over-fly the United States? The reason is that it's part of an immense information-gathering process that is going on through the different agencies of the United States, in which information ends up in banks, in data mining, and in putting people on lists.

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

How long can this information be retained, and for what other purposes can it be used?

[Roch Tassé]

I believe the Privacy Commissioner has already answered that. Right now the retaining period is seven days. Within minutes, once the information is in TSA, it can be shared with a whole spectrum of agencies. By the time the TSA raises it, the FBI and 16 other agencies have this information in their databases.

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

I thought it was 7 to 99 days, up to three months.

[Roch Tassé]

It depends. If you're the real person, it's 99 years. If it's a false positive, it's seven years. For a regular passenger who is cleared, it's seven days. But even seven days, in the computer age, is a long time. Before TSA erases your file, it can be copied by the 16 other agencies that are part of the Homeland Security system.

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

If this legislation is passed, would it not impose an undue bureaucratic burden on the airlines to provide each country in its flight path with their passenger list and other information? Passenger lists aren't updated until the moment the plane is boarded and has taken off, right?

[Micheal Vonn]

I'm unable to speak to industry's burden on that score. Certainly, one of the things that has been raised has to do with required communications. If there are any difficulties, airline traffic grinds to a halt. So if the smoothness of those channels is interrupted, we can expect to see some difficulties.

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

I'm sharing my time with Ms. Minna.

[Maria Minna, Liberal, Beaches—East York, ON]

Is anyone else doing this kind of thing? Are European countries sharing this kind of information? Does this kind of legislation exist anywhere else that anybody is aware of?

[Dominique Peschard]

No, it doesn't. One of the issues that has to be considered is that the United States is setting a precedent with this system. If they can invoke their sovereign rights to set up a system like this, what prevents China, North Korea, or Iran from invoking the same rights?

You can imagine the kinds of rights violations it would lead to if this is set up as a model for a worldwide system.

[Maria Minna, Liberal, Beaches—East York, ON]

Yes?

[Micheal Vonn]

There are international conventions that have been signed onto, we believe, including--I'm sorry I didn't check this ahead of time—those that the U.S. has signed onto, that guarantee freedom to fly over sovereign nations. So our understanding is that the global travel regime has been very influenced by those and that this is unprecedented.

[Maria Minna, Liberal, Beaches—East York, ON]

Has the United States enacted similar legislation within its government to share U.S. flight information with any other country? Are they going to do the same for other countries? Do they have the same kind of legislation there now?

[Micheal Vonn]

Certainly I'm not aware of any at this—

[Maria Minna, Liberal, Beaches—East York, ON]

So it's only for inbound, but it is not to be shared. That's an interesting point. I don't mean with us, but not with anyone else, right? They don't have this kind of legislation in the U.S.?

[Micheal Vonn]

No. I'm not aware of any other country making a demand for that information.

[Maria Minna, Liberal, Beaches—East York, ON]

Do I still have time?

[The Chair, Conservative, Merv Tweed]

You can ask one more question.

[Maria Minna, Liberal, Beaches—East York, ON]

There was one other question I wanted to ask, and maybe it's more of a statement; I'm not sure. The problem is that some people travelling will be afraid to take a flight. In a way, I think we are grounding certain types of people. So Canadians of certain races or with certain backgrounds will be too afraid, knowing that their name is on that list and that they could be picked out, either by a false positive or in any other way or for any other reason, if they were flying over the U.S.

Does this not also affect our race relations laws by indirectly creating a fear factor and a grounding factor for certain groups in our society?

[Dominique Peschard]

Yes, because these lists are not set up on the basis of factual evidence proved before a court of law against certain individuals, but on the basis of data mining and profiling. When you engage in this sort of process, obviously the profiling will be detrimental to certain groups of people.

[Maria Minna, Liberal, Beaches—East York, ON]

So our charter rights and race relations laws would also be affected very directly in this case. This is another interesting thing that I was thinking about.

The fact that the U.S. potentially could share this with other countries is another aspect. Do you know if anyone has done a constitutional test on this bill? Does it pass our constitutional muster? It seems to me that this bill probably wouldn't pass our constitutional rights if it were put to the test. Should it be referred to the Supreme Court? Has anyone thought about that?

[Micheal Vonn]

I hadn't thought about the notion of a reference, but certainly I was highlighting the 1267 regime, because there's very likely to be a court case on that matter. If we make the comparison, as I was attempting to do, between the constitutional issues engaged there—and, again, Canada is complicit because we have domestic legislation that implements it--and if that were to fail, then very clearly on the standard of comparison this bill would also fail.