Evidence of meeting #36 for Transport, Infrastructure and Communities in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
Liberal
Bonnie Crombie Liberal Mississauga—Streetsville, ON
Mr. Chairman, I'm wondering what the relevance is to challenge the witness on her legal training rather than on the issues she's presented today.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
She's referred to international law. She's referred to it as a witness here, in my mind as an expert talking about the violations of international law. We find out she's been practising law for six months in union law. She has no international law experience.
I think it's very relevant, but I would like to have my opportunity to ask--
Conservative
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
I think that as committee members we should all be cognizant of the fact that we asked for this witness. The same is true that points of debate should not be made through points of order. Whomever we call as a committee, it's our choice to call someone as a committee. If we call them, it's because they have a particular point of view that we want to have shared with the committee.
I don't know if it's relevant to be challenging credentials at this point in time. If there was a challenge to be made, it should have been made before the witness was called to appear before us.
Conservative
Conservative
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Yes.
I agree with my colleague Mr. Byrne, for the good and simple reason that, when the witness invited is an expert witness, we have to examine his or her expertise. These people are testifying and sharing their experience and interests with us. This could be a Canada volleyball champion who is interested in civil liberties and is working at her association.
I was letting Mr. Jean speak and ask his questions. He was putting his remarks in context. However, following Mr. Crombie's point of order, he said he was assessing whether she was actually an expert. And yet we didn't invite her as an expert witness.
Conservative
The Chair Conservative Merv Tweed
That's not a point of order.
I will ask Mr. Jean to move forward with questions of our witnesses, please.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you very much, Mr. Chair.
One of the witnesses mentioned a scandalous number of false positives. I know Ms. Brown did talk about that, and I'm looking forward to the numbers. I understand there are about 10 billion travellers a year to the United States. Now, 10 billion is a lot of travellers and a lot of entries, and I'd like to see the percentage ratio between the scandalous number of false positives versus how many people are travelling.
As I was saying, I did have a chance to study international law in Australia, and I did the Jessup Moot, an international mooting competition.
When you were talking about the rule of law, you said this violates international law, and I asked my staff to get a definition for me.
The definition of the rule of law states:
That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.
I don't see how this particular law that is going to be put in place by the United States violates the rule of law and the definition.
It goes further to say:
In a political system which adheres to the paramountcy of the rule of law, the law is supreme over the acts of government and the people.
It goes on further to say:
That people should be ruled by the law and obey it.
I go further to say:
The law in our society is supreme. No one - no politician - no government - no judge - no union - no citizen is above the law. We are all subject to the law. We do not get to pick and choose the laws we will observe and obey. Each of us must accept the rule of all laws, even if we have to hold our noses when complying with some of them.
I want to refer you to the charter. I have a copy of it in front of me that talks about—
NDP
Don Davies NDP Vancouver Kingsway, BC
I'm sorry. I don't want to interrupt Mr. Jean, but he quoted from something and I didn't understand where he was quoting from. I think it would help the committee if we had the source of that quote.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I can table this. It has several definitions of the rule of law from the Internet, and it refers to each of the different quotations and where they come from.
Conservative
The Chair Conservative Merv Tweed
I would ask you to have it translated and tabled at a future date.
November 25th, 2010 / 12:20 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Certainly, I'd be more than happy to.
As you know, subsection 6(1) of the Charter of Rights and Freedoms says:
Every citizen of Canada has the right to enter, remain in and leave Canada.
Of course, that's what you're referring to, but international law is such, with Canada—it's different from the United States—that when we sign a treaty, it actually becomes domestic law. As you're aware, we signed the treaty of 1944, the Chicago convention, which actually gives other countries supreme right over their airspace.
Section 6, if I might paraphrase, should read that “Every citizen of Canada has the right to enter, remain in and leave Canada”, as long as the sovereignty of other nations is respected and obeyed. That's really what the law means when you take it into context with the Chicago convention, which as Canadians we have to, because international law applies, once we ratify it, as Canadian law. It's different in the United States.
Now, my questions.
As you can tell, I don't agree with you. I think the U.S. has sovereignty over its airspace, just like Canada does. In fact I think this actually strengthens Canada's sovereignty over our own airspace.
Do you know why I say that? You said it weakens it. Well, of course it strengthens it. There is no question that the foundation of international law is based on the sovereignty of state. There's no question that's what international law is all about: the sovereignty of each individual state.
With us ratifying and giving the ability for the United States...and confirming that they have the ability to control their own sovereign airspace, certainly that gives Canada the same ability to have sovereign rights over its airspace. I just wanted to talk about that a bit.
I appreciate your coming here today. And I appreciate your concerns, but let's say we've had negotiations with the U.S. for two to three years. We've got some exemptions--the only country in the world to get these exemptions, is my understanding, of having that ability to fly over their airspace. What would you recommend we do? We're at the end. The U.S. has said they're not going to negotiate anymore. What else would you suggest we do? That's my first question.
My second question--because I know I'm going to be cut off and I won't have enough time--is have any of you three individuals travelled to the United States in the last three years? Have you provided everything the customs officials at the border have asked you for?
Conservative
Policy Director, British Columbia Civil Liberties Association
That is simply a dizzying array of matters to address.
If I could first address the reputational point, I certainly did not bring myself before this committee as an international law expert. I specified that I was drawing upon our report in the UN Security Council's 1267 regime and the rule of law in Canada. This is the report. I'm happy to table it with the committee. I can give that to you. As I say, I made no representations along those lines.
The point about international law being founded in sovereignty, I suggest, is deeply problematic. If we're going to discuss this notion of what constitutes the rule of law, the leading case in Canada is Roncarelli v. Duplessis, which says, simply put, that the law cannot be arbitrary. The way we ensure that is by having due process. This is iterated throughout the international instruments and our own Constitution.
I can appreciate that we have a disagreement about this particular legal point. By the way, I won the Wilson Moot, which is about the equality provisions of the Canadian charter. I'll just put that on the record. If we're having this dispute...this matter has come up before Canadian courts previously and is going to come up in a very analogous case, as I say, very soon.
The point here is, relative to what we must do and how we must do it, what do you suggest? We have been iterating time and time again that we need to work at an international level with our international partners. We're under tremendous economic pressure. That has been stated.
It would have been much preferable to have had this work undertaken some time ago. The argument that the exception is going to last in Canada is certainly problematic if we consider the track record thus far of the security harmonization between the two countries.
So we're deeply concerned that Canadians are going to have to deal with this either through domestic courts or, now, through diplomatic channels, which would be preferable. I think that's a quick scoop of the various issues that were raised, which could possibly be addressed in this forum.
Conservative
Liberal
Bonnie Crombie Liberal Mississauga—Streetsville, ON
Thank you, Mr. Chairman.
Ms. Vonn, I just want to apologize to you that you were invited here to be an expert witness and then your credentials were seemingly challenged.
My question to you is this. If security interests are foremost, why wouldn't the Canadian government request a reciprocal right to have access to the passenger lists of individuals travelling from the U.S. over Canadian airspace? Surely we have security concerns as well.
Policy Director, British Columbia Civil Liberties Association
It also raises that point--why other countries don't consider this needful in terms of their security interests--as one aspect of this, and of course it raises the point about the exception. I'm afraid the exception of Canadian overflights domestically is incredibly vulnerable if the argument is supposedly that this is needful for security.
Simply put, it either shows that it is not needful that we have an exemption or that the exemption will be vulnerable if they insist upon that point. So we are in a very sticky place relative to something that is completely Canadian, relative to Canadian sovereignty, which is our ability to transit our very large country, geographically located where it is with air transit passages as they are.
Liberal
Bonnie Crombie Liberal Mississauga—Streetsville, ON
Just for the record once again, I'm sure you don't know the number, but what percentage of Canadian flights travel over U.S. airspace from Canada? I believe that domestic flights are exempted. Is that correct?
What percentage of flights would be impacted? Often domestic flights fly into the U.S. as well, but I believe those have an exemption in this proposed legislation.