Transport Committee on Nov. 25th, 2010

[The Chair, Conservative, Merv Tweed]

Thank you, and good morning, everyone.

Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 36. Pursuant to our orders of the day, the order of reference of Tuesday, October 26, 2010, we are studying Bill C-42, An Act to amend the Aeronautics Act.

Joining us here today, from the Ligue des droits et libertés, is Dominique Peschard; from the International Civil Liberties Monitoring Group, Roch Tassé; and from the British Columbia Civil Liberties Association, Micheal Vonn.

We welcome you, and I've been told that you have been advised as far as the time limits for presentations are concerned, after which we'll go immediately to questions and answers.

I'm not sure if anybody has decided who wants to start first.

Ms. Vonn, please begin.

[Micheal Vonn, Policy Director, British Columbia Civil Liberties Association]

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--

[The Chair, Conservative, Merv Tweed]

Excuse me.

Go ahead on a point of order, Mr. Jean.

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

I apologize, but I'm hearing a lot of words, and I just want a point of clarification. We've heard “scandalous number of false positives”, “no process, no remedy”. I understood that there was an appeal process, first of all, for the U.S. system.

I haven't heard actual numbers, and I'm wondering if instead of using all these descriptive words, she could maybe give us some numbers on the false positives and things like that. It's just a point of clarification. It would be helpful.

[The Chair, Conservative, Merv Tweed]

That's not a point of order. I'll ask the witness to continue, please.

[Micheal Vonn]

Thank you.

In short, a bill that is being touted as a safety measure not only enables a program that can nowhere demonstrate evidence supporting the claim that it demonstrably improves aviation safety, but it will also clearly be actively endangering the security of Canadians abroad.

As the Supreme Court of Canada has said in the Charkaoui decision, a process that may bring with it the accusation that one is a terrorist could cause irreparable harm to an individual.

We say that Canada must not be complicit with a program that defies the rule of law. The argument that purported security trumps all other constitutional considerations has no merit. There will always be a necessary weighing and balancing. The Supreme Court of Canada again said, in Charkaoui v. Canada, that “...security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the section 7 state of the analysis”, meaning the section 7 analysis in the charter.

Fundamental justice is not an enemy of security; in fact, there is no security without fundamental justice. We urge Canada to work with our international partners to come to an agreement on aviation security programs that respect the rule of law.

Countries the world over are grappling with these issues. Secure flight represents what we believe is an unprecedented alteration of global travel, with vast implications for travel, trade, and tourism. The international community needs to be engaged.

As you will recall, Canada was not supposed to be in this position. We were harmonizing our security measures, and the development of our own no-fly list was supposed to prevent the imposition of the U.S. list. The pattern is very clear: the exemptions do not last. Obviously the next exemption will be to rescind the exception of Canadian domestic overflight.

The time to act is now.

Thank you very much.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Monsieur Tassé is next.

[Roch Tassé, National Coordinator, International Civil Liberties Monitoring Group]

First I would like to thank committee members for inviting us to discuss our concerns about Bill C-42. If this bill is passed, it will enable the authorities of a foreign country to decide in an arbitrary and discretionary manner who may board an aircraft, and to do so for the majority of international flights entering and leaving Canada.

In view of the many comments by travellers who have been prohibited from flying since the Secure Flight program has gradually been put in place in recent months, we can expect that, with the passage of Bill C-42, we will be seeing an increasing number of Canadians and visitors to Canada literally grounded, with no recourse or remedy, even though they have no intention of travelling to the United States.

Under the final rule of the international component of secure flight published in late October of 2008, airlines are required to transmit all passenger information to Homeland Security and U.S. Customs and Border Protection 72 hours before departure for all flights to and from the U.S. as well as for all flights that overfly U.S. territory. This includes not only basic API information, such as name, gender, and date of birth, but also all information contained in the reservation system known as PNR, or passenger name record.

After running a risk assessment for each passenger using data mining technology, Homeland Security in turn issues a boarding pass result back to the airline. The result instructs the airline to issue a boarding pass, deny permission to travel, or issue an enhanced screening requirement. These regulations give the U.S. access to a whole subset of information on air passengers who are not entering the U.S. but merely overflying its airspace. Furthermore, this information can be shared among at least 16 U.S. agencies and with foreign governments. The program gives the government of a foreign country a de facto right to decide who gets to travel to and from Canada, since the vast majority of Canadian flights to and from Europe, the Caribbean, and South America overfly American airspace.

Let me quote from an internal Public Safety Canada document obtained by The Canadian Press and dated January 26, 2009:

There are a number of concerns that the Secure Flight Program poses for Canada.

Secure Flight affects both passengers and airlines. Airlines will be compelled to share personal data with the U.S. government—an act that is currently prohibited by the Personal Information Protection and Electronic Documents Act. It is possible that Canadians overflying the United States could be denied boarding based on U.S. No-Fly lists that were developed based on lower U.S. risk tolerance. There are also no guarantees how the U.S. will use the information it obtains from carriers overflying its territory.

During debate on second reading, Liberal MP Joe Volpe said, “This bill is a total abnegation of our sovereignty responsibility.” He is absolutely right. None of us in this room, even respected members of the Canadian Parliament, will be allowed to fly virtually anywhere in the world without the explicit consent of the United States. It creates the very real possibility that the charter rights of Canadians and their right to privacy will be violated by the legislation of a foreign country without Canada's being able to defend those rights.

We know that Maher Arar is on the U.S. no-fly list. Several other cases in which Canadians have been denied boarding by the U.S., even for domestic flights in Canada, have also been reported. Those cases include several individuals who have been deemed by Canadian courts and commissions of inquiry not to pose a risk to the national security of Canada. They include Abdullah Almalki, Adil Charkaoui, and others I could talk about later. If Bill C-42 is adopted, even the rulings of Canadian courts won't be able to be enforced.

There are other concerns related to Canada's sovereignty. For example, half the cabinet members of the Bolivian government are persona non grata in the U.S., so if Canada were to invite one of those ministers for a diplomatic meeting in Canada, the U.S. could bar this minister from boarding a plane to attend the meeting at the invitation of Canada. The same could apply to refugee claimants, who, even if admitted by Canada, could be denied the possibility of leaving their country by the U.S.

Other impacts on refugees and immigrants include the possibility of mistreatment abroad by third countries with whom the U.S. might share travel information. By adopting Bill C-42, Canada could become an accomplice in the U.S. rendition program, which is already responsible for the torture of Canadians in Syria and Egypt, among others. At the very least it would support Canadian complicity in a foreign government's program that violates due process and the principles of natural justice.

Disclosure of personal information to the Department of Homeland Security on passengers travelling to certain destinations, particularly Cuba, could lead to unpleasant consequences. For example, this information could be used to identify Canadian companies that do business with Cuba or to penalize travellers who have visited Cuba by subsequently refusing them entry into the U.S. How will Canada ensure that the U.S. will not use the secure flight program to apply its Helms-Burton act, which imposes penalties on foreign companies doing business with Cuba?

There are also serious concerns related to the huge number of passengers who are intercepted on false positives and who have no redress mechanism other than being told to change their names.

ICLMG has received testimony from many Canadians who have been intercepted as false positives on the U.S. list in Canadian airports and who have been told by Homeland Security that the redress mechanism known as TRIP could not apply to them because the incident did not occur on U.S. territory. Even if TRIP did apply, there is still no redress mechanism whatsoever if you are the real person on the no-fly list.

As you can see, the U.S. secure flight program will have a very harmful impact on Canadian travellers and on visitors to Canada. We call on you to oppose these measures. Canadians expect their government to protect the sovereignty of their country and uphold their rights. The rule of law and the charter of rights of Canadians cannot be sacrificed at the altar of short-term commercial interests.

[The Chair, Conservative, Merv Tweed]

Go ahead, Monsieur Peschard.

[Dominique Peschard, President, Ligue des droits et libertés]

First I would like to thank committee members for this invitation to testify on Bill C-42. The Ligue des droits et libertés was founded in 1963 and is a member of the International Federation for Human Rights.

I would like to begin this presentation with two examples that clearly illustrate the consequences of a traveller monitoring system such as the Secure Flight program. My first example is that of Hernando Calvo Ospina, a Colombian journalist living in France. On April 18, 2009, Mr. Ospina was travelling to Nicaragua via Mexico for Le Monde diplomatique. Five hours before Air France's Paris-Mexico flight was scheduled to land, it was diverted to Fort-de-France, Martinique. The captain informed the passengers that the United States had not authorized the aircraft to fly over the country because one of the passengers constituted a threat to national security. Unknown to him, Mr. Ospina was on the United States' no-fly list. Mr. Ospina is a regular contributor to Le Monde diplomatique and has written a number of articles criticizing U.S. foreign policy and the CIA's role in Latin America. Mr. Ospina's prohibition has nothing to do with air security. The flight's co-pilot even went to see Mr. Ospina during the flight to verify that he was indeed the person targeted by the prohibition. In Mexico, Mr. Ospina was briefly questioned by Mexican authorities before taking another flight to Managua.

Another case I would like to discuss is that of Paul-Émile Dupret, a Belgian citizen who is an analyst for the European Parliament and who has conducted a campaign opposing the transfer of European travellers' personal information to American authorities. As his flight was on route to Mexico—his final destination was Sao Paulo, where he was travelling to attend the World Social Forum—the aircraft had to circumvent the United States because U.S. authorities were not authorizing Mr. Dupret to fly through American airspace.

These individuals clearly do not represent a threat to air security, and individuals like Mr. Ospina and Mr. Dupret could very well have been Canadian journalists or public servants travelling to Latin America.

As my colleagues before me mentioned, the Secure Flight program could have even more serious consequences. A number of Canadian citizens, such as Messrs. Arar, Almalki, El Maati and Nureddin, have been deported to places where torture is practised, or have been arrested and tortured in Middle Eastern countries based on false information transmitted to those governments. Canadian citizens who are originally from countries like Syria will, if their aircraft fly over the United States, be completely at the mercy of information that those countries would be able to forward to their destination country.

Lastly, with regard to the personal information that will be disclosed under the Secure Flight program, it is an illusion to believe that the information gathered will be protected and used solely for air security purposes. In July 2010, the Washington Post published a series of articles that painted a striking picture of the security structure that the United States put in place after September 11, 2001. The Washington Post surveyed 1,271 government agencies and 1,931 companies operating in the fields of counter-terrorism, intelligence and territorial security. Of that sample, 850,000 persons, 265,000 of whom work in private enterprise, have access to information that has a "top secret" security rating.

In 2004, the Intelligence Reform and Terrorism Prevention Act established the Office of the Director of National Intelligence. The main purpose of that office is to improve intelligence sharing and to integrate it into the national intelligence program framework, which comprises 17 U.S. agencies operating in the intelligence field. The best known are the CIA, the Department of Homeland Security, the Defence Intelligence Agency, the FBI, the NSA, the armed forces, the Coast Guard and on. This enormous structure operates like a black hole that sucks in all information available to it but from which nothing can escape. It is an illusion to think that the information provided under the Secure Flight program will be protected, that it will be destroyed or that it could be corrected in the event of any error. On the contrary, that information will be added to the data bases of the U.S. intelligence agencies and will be compared with information held by all the agencies I've just mentioned to determine whether such and such a person should be prohibited from flying over the United States or even placed on another list.

Experience with the anti-terrorist surveillance list, which consists of approximately one million names in the United States, and with the no-fly list, which contains tens of millions of names, has shown that the names of thousands of innocent persons appear on those lists, and there is no recourse mechanism.

The United States has an insatiable appetite for new control measures that it wants to impose on the entire planet. In January 2010, the Secretary of the Department of Homeland Security, Janet Napolitano, addressed the International Air Transport Association. She called for greater cooperation by airlines and public authorities in four areas: information gathering and analysis, an increase in shared training, greater cooperation in passenger screening, higher security standards and the deployment of new technologies such as body scanners. Ms. Napolitano has made the same requests to the International Civil Aviation Organization.

Since September 11, 2001, numerous measures have been put in place by regulation in Canada in the name of security, such as the Passenger Protection Program through the Smart Border agreement. These measures were taken without public or parliamentary debate and have had the effect of undermining Canadians' rights and freedoms, without the individuals whose rights are violated having access to any recourse mechanisms.

Justice O'Connor's investigation of the Arar affair has shown to what extent the ill-considered sharing of information can have harmful effects. Four years after Judge O'Connor's report was tabled, we are still waiting for implementation of his recommendations for the introduction of a mechanism for monitoring security intelligence activities in Canada.

Bill C-42 raises some fundamental issues about Canada's sovereignty and the protection of Canadians' rights and freedoms. The Parliament of Canada has a duty to defend those rights, rather than submit to the United States' endless demands allegedly in the name of security. Canada should play an international leadership role in putting in place air security systems that are consistent with the rights recognized in the Canadian charter and international law.

Thank you.

[The Chair, Conservative, Merv Tweed]

Thank you.

Go ahead, Mr. Byrne.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chair, and I thank the witnesses for their thoughtful presentations.

The committee is deliberating on two very important issues. One is the essence of preserving privacy while at the same time ensuring commerce, the well-being of the economy, and the ability of citizens to make informed consent. I'd like the witnesses to comment on this, Mr. Chair, if they could.

We're competing with an idea here. Citizens are aware that certain aspects of their personal information will indeed be conveyed to a foreign jurisdiction, yet they willingly choose to take that flight, knowing that it is a matter of law and a matter of a requirement by a foreign state exercising its rightful sovereignty. We've heard as a committee that it is indeed the sovereign right of the U.S. to require this information before allowing access to their airspace. In the interests of the Canadian citizens who would be involved, if they knowingly make this decision to board an aircraft knowing that this information will be conveyed, doesn't that imply informed consent? How does that meet with the tests or standards you described?

Ms. Vonn, could you begin?

[Micheal Vonn]

If we're going to move to consent, part of the problem with this notion is that you really have not had very many opportunities to do anything else in attempting to enact your mobility rights to move around the globe freely. If you haven't had due process and the rules of fundamental justice have not been engaged to deny you that right, the problem here is simple: if we make it known that you will be subject to a regime that my organization says does not comport to the rules of fundamental justice, saying that you have informed consent is a deeply problematic notion.

I appreciate that the idea of informing the public about what is going on is very important, but strictly speaking, I don't know that we've managed to elude the problem by simply giving information when the alternatives are really virtually negligible.

[Dominique Peschard]

Could I add a comment? It's very hard to know what we're giving consent to when you don't have any control over what the United States will do with that information.

From the previous testimony, including that of Commissioner Stoddart, and from my description of how the intelligence apparatus works in the United States, it's quite clear there are no guarantees to what use this information will be put and whether it can be corrected or if it will be destroyed. The normal guarantees that should be in place when you give consent are not in place in this case.

[Roch Tassé]

I didn't notice that requesting consent would have to be so transparent, to say you're waiving all your rights and there's nothing Canada can do if you run into trouble. That's the only real transparent consent that would be required.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

However, wouldn't there be rules through the United Nations, who are signatories to certain conventions? And also, the actual U.S. law itself, if I'm not mistaken, does provide at least some legal basis for the use of the data.

I reckon that when a Canadian makes a credit card purchase via the Internet, they're never completely certain whether they're making that transaction in good faith. There is a certain amount of risk there. I know it's an extreme example, but I'm trying to test out the logic of the argument.

[Micheal Vonn]

I would just say, again, that I'm trying to move away from the notion of the privacy issue being in the forefront here. We do know exactly what this information is being used for. It's being used to vet Canadians or other passengers from Canada against a watch list that provides no form of redress. That's what we're trying to stress here.

The point is that you don't engage in a process whereby there is no form of redress, no means of understanding how you land on the list or get yourself off--none.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Okay.

Mr. Chair, I'll switch my time to Ms. Crombie, if that's okay.

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

Thank you so much.

From your presentation, I see Bill C-42 as an example of U.S. Homeland Security extending its tentacles into Canadian sovereignty, and I see it as more extra-territoriality and abrogation of Canadian civil liberties. So I think we're all seeing the same thing.

What redress mechanisms exist for persons who are deemed inappropriate to fly over U.S. airspace?

[Micheal Vonn]

None. We're not aware of a single redress mechanism. We're trying to provide some clarity because we've heard about a mechanism, and as my colleague, Mr. Tassé, was pointing out, that mechanism has been instituted in the case of false positives. For example, you may recall a high-ranking member of the Canadian military who was on the U.S. no-fly list; that would be Bill Graham. We assume that was a false positive. At the time, we understand there was no mechanism, even for that. It was diplomatic channels that were employed there.

There is a mechanism now if you are the wrong Bill Graham, as we assume our Bill Graham was. But if you are the right Bill Graham, there is no mechanism. There is no way to know what the case against you is. There's no way to speak to it. There is no way to get yourself home to Canada if you cannot find a flight that is willing to take you over that airspace or find an alternative flight if you cannot. That is our point.

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

Thank you.

Are there any other jurisdictions that have instituted this type of legislation? Are there countries, other than the U.S., calling for access to passenger lists if you fly over their airspace?

[Micheal Vonn]

We're not aware of any. We believe this is unprecedented. It's part of what has constituted this conundrum we're in and why it has received such pushback from the European parliament. Our colleagues in Europe have been calling for a review of exactly this kind of purported sovereignty over airspace and how it impacts international travel.

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

Surely they must have the same concerns over security as the U.S. would.

How long can the information be retained and what purpose--

[The Chair, Conservative, Merv Tweed]

Ms. Crombie, I can come back to you in the next round. I'm sorry.

Monsieur Guimond.

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

Thank you, Mr. Chairman.

Thank you for your presentations.

Earlier this week, on Tuesday, we met with Nathalie Des Rosiers, who submitted some proposed amendments to the committee.

I'm going to ask you three for some quick answers to my question. Even though you don't expressly say so in your presentations, I don't believe you're recommending that the committee amend the bill. Am I mistaken in thinking that you're simply asking that Bill C-42 be withdrawn?