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.