Thank you, Mr. Chair, and thank you to the committee for the invitation.
I am appearing on behalf of the British Columbia Civil Liberties Association to express our opposition to Bill C-42. Commissioner Stoddart has already done a commendable job of outlining the privacy concerns of Bill C-42, and stressing that once released, Canadian information will be broadly disclosed for a variety of purposes.
As important as the privacy issues are, I suggest that they are something of a red herring. In following the discussion on this matter, we have been dismayed that the subject of U.S. secure flight itself and the grave rights violations involved in the overall program have been so little touched upon.
The committee has heard, we suggest, endless iterations on the theme of the rights of U.S. sovereignty to its airspace, but disappointingly little about the rights of Canadian citizens. It is our submission that in enacting Bill C-42, Canada will be complicit in a no-fly regime that does not comport to the rule of law. We say that the U.S. secure flight program violates international law and that subjecting Canadians to the secure flight regime through the mechanism of Bill C-42 violates the Canadian charter.
What is proposed under Bill C-42 is that Canada supply passenger information to the U.S. in order that passengers may be granted or denied permission to transit U.S. airspace on the basis of unknowable and unchallengeable criteria. Every country in the world is, of course, sovereign over its airspace, yet the innovation that is being contemplated by the U.S. is, to our understanding, without precedent and essentially stands to completely subvert the current practice of global traffic and trade.
As Monsieur Caron from the Office of the Privacy Commissioner alluded to, the freedom to fly over sovereign countries is enshrined in international conventions. It is indeed possible for sovereign states to make rules regarding transit, and U.S. secure flight rules to deny travel permissions on the basis of their watch lists may be one of them. However, the analysis does not stop there. Travel watch lists are an increasingly important discussion in the international community.
The B.C. Civil Liberties Association recently published a paper on the United Nations Security Council's resolution 1267 regime, which is a watch list for individuals and entities subjected to international travel bans and asset freezes. The B.C. Civil Liberties Association says that the UN watch list violates international law and the Canadian Constitution for failure to provide due process, also known as natural justice.
There is some variation in the requirements of due process in different contexts, but it typically involves the right to an independent and impartial arbitrator, the right to know the case against you, and the right to be heard. These are familiar elements of what is called due process and are understood by virtually everyone as elements of basic fairness. Such rules are at the heart of our own charter and of instruments of international law, such as the Universal Declaration of Human Rights, which, to provide one example, states that:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
The 1267 watch list is created--and these elements will be familiar to you--on the basis of secret evidence. An individual listed has no opportunity to make the case before the 1267 committee prior to being placed on the blacklist, there is no mechanism to review the accuracy of evidence, there's only very limited ability to participate in a delisting request, and there is certainly no opportunity to present one's defence or assert one's rights.
This regime is under a strident attack, ranging from a resolution by the Parliamentary Assembly of the Council of Europe harshly criticizing this regime to the striking down by the Supreme Court of the United Kingdom of domestic legislation implementing the 1267 regime in that country for--exactly as we put it--failure to comport to the principles of natural justice.
In our opinion, Canadian implementation of the 1267 regime is likewise a violation of both the Canadian charter and the Bill of Rights. This is relevant to our discussion of U.S. secure flight, because that program is even more devoid of due process protections and the rules of fundamental justice than the 1267 regime is.
Let me attempt to bring some clarity to this matter. I'm reading some of the proceedings, and there appears to be some confusion.
Canadians attempting to travel to many destinations in Europe, the Caribbean, and South America will be prevented from doing so on the basis of a secret watch list of a foreign country, which provides absolutely no form of process or redress. The highly unsatisfactory process, which attempts to provide some recourse to the scandalous number of false positives on that list, is not a mechanism of redress for people who are “correctly listed”. Some of these “correctly listed” people will be familiar to you as Canadians who have no criminal record and have been exonerated of any links to terrorism or terrorist organizations. My colleagues will be discussing those in more depth. For such people there is no redress, no process, no remedy.
As I listened to questions regarding how Canada will assist Canadians who are denied boarding by secure flight, I have heard no credible plan for repatriating and protecting Canadian citizens who will be denied permission to return to Canada and endangered by the smear of terrorism involvement while vulnerable in a foreign country.
In short, a bill that is being touted as a safety measure not only enables a program that quite frankly can nowhere provide evidence--