Transport Committee on Nov. 30th, 2010

[The Chair, Conservative, Merv Tweed]

Go ahead, Mr. Lennox.

[Toby Lennox]

I'm just the simple airport guy at the end.

The point that I would like to make has been touched upon already. It is that right now there is a time issue concerning both Bill C-42 and the issue about U.S. sovereignty and U.S. demands with respect to what it is going to do with respect to its airspace. I believe Mr. Hasbrouck referred to the non-negotiable demands of the United States. Trying to make that balance between personal privacy and human rights versus the very real commercial economic issues is very difficult, and it sometimes defies legislative timetables.

The issue is whether we are able to have a conversation with the Americans and with others about issues of terrorism, security, and privacy and personal information. I think we have to pursue that. Perhaps a sunset clause may be appropriate.

There is a very real prospect that if you're going to be flying, you are going to be distorting travel routes in order to accommodate something that actually has nothing to do with aviation. In order to get to Mexico, you will have to fly out over the Gulf of St. Lawrence and then down the coast of the United States. That is just not something that's practical or feasible. If you're telling me that this is going to happen in short order, I can tell you that the impact on the industry is going to be considerable, although, at the same time, we as an industry do not make light of the very real concerns that have been raised at this table.

What I'm saying is that there's a conversation that is difficult to have in this timeframe, but we also have to recognize that we are dealing with Americans and with Americans' right to deal with security, whether we agree with it or not. With respect, they're not asking us for our opinion about what they do with the privacy information. That is a conversation we have to push, but I would stress the very real operational concerns that we have with respect to the impact of not following Bill C-42.

[The Chair, Conservative, Merv Tweed]

Go ahead, Mr. Hasbrouck.

[Edward Hasbrouck]

While it's tempting to say that this is simply a matter within U.S. sovereignty, as I alluded to earlier, even within the realm of its sovereignty, the U.S. is a party to the ICCPR. While that treaty cannot be invoked by private citizens in U.S. courts, I think it is entirely appropriate and proper for other parties to that treaty, such as Canada, to raise questions with the United States as to whether what is being demanded by the U.S. is consistent with the quite detailed standards that have been adopted by the UN Human Rights Committee for measures that implicate the right to freedom of movement guaranteed by article 12 of the ICCPR.

I would not be so ready to say that Canada has to cede to the U.S. the power, within its own territory, to abrogate its commitments to black letter international human rights treaty law. I think this is the kind of discussion that could go on in the context of diplomatic negotiations over existing treaty commitments as well as for a possible future treaty in this area.

[The Chair, Conservative, Merv Tweed]

I have to stop that you there. I know there are other comments, and perhaps you can respond during the question-and-answer period.

Mr. Watson is next.

[Jeff Watson, Conservative, Essex, ON]

Thank you to our witnesses for appearing today.

I want to ask a very quick question right away, and then I'll move to a different line of questioning.

The BC Civil Liberties Association appeared before this committee. They took the position that Bill C-42 should not be proceeded with unless or until the United States changes its own internal legal process to include the redress mechanism. Are any of the witnesses present at the table today taking that position?

[Dr. Mark Salter]

No. I think that it's a serious matter of concern, but I think there are ways to address it other than by trying to compel something that's--

[Jeff Watson, Conservative, Essex, ON]

Mr. Gardee, Mr. Elgazzar, what are your positions?

[Khalid Elgazzar, Member of the Board of Directors, Canadian Council on American-Islamic Relations]

I think if it were at all possible to avoid enacting it in its current state, yes, we would encourage that. However, we are not ignorant of the commercial realities that are at play as well.

[Jeff Watson, Conservative, Essex, ON]

Would you comment, Mr. Lennox?

[Toby Lennox]

Obviously I don't agree that we should wait for a redress mechanism. You just don't. It's not in the cards at this point.

[Jeff Watson, Conservative, Essex, ON]

All right. In a sense we've gone to the 30,000-foot level with Mr. Hasbrouck's suggestion of international negotiations around some sort of a binding treaty with binding guarantees in it. I want to come back down to ground level again about what Bill C-42 is.

First of all, it's a technical amendment to ensure Canadians don't face any undue delays with respect to their travel plans. I will remind you that we've had a lot of talk about how there should be negotiations. I have to remind those who are listening today, and perhaps our witnesses as well, that Bill C-42 actually follows a process of negotiations that has been ongoing with the United States since 2008. The minister testified before this committee, for example, that we did obtain an exemption with respect to the final rule for overflights that originate domestically in Canada, fly over U.S. airspace, and then land in Canada, so we have had some negotiation with the United States. The decision with respect to bringing in Bill C-42 was based on the reality that those negotiations were not going to produce an exemption for international overflights, and we are facing additionally the implementation deadline at the end of this calendar year. That may represent to some a bit of a Hobson's choice, but it is a reality nonetheless.

I want to get Mr. Lennox onto the record just a little bit.

We've had a lot of discussion over here on the issues of privacy. I want to come to the GTAA and its place and position with respect to the economy. We've just come through a very difficult global recession. You may want to talk about the impact to airports, airlines, and tourism industries as well as about the recovery. We have heard some good news with respect to Air Transat recalling 110 employees, for example, but the economic recovery is fragile. There is competition from U.S. airports. Can you talk about the context, economically, for your industry?

[Toby Lennox]

Sure, I'd be happy to.

I take your point that in fact Bill C-42 has been preceded by tremendous discussions. These are large and agonizing questions, because they're balancing human rights and security, and one would assume that the conversation will continue. The fact that you're having this discussion here is testament to the will to have that conversation.

I will tell you that we are very much in competition with both the American carriers and American hubs. The effect of something like Bill C-42 would be to strengthen the American border airports immediately. After all, if I can fly to Cancun out of Buffalo and avoid some long detour that is going to cost me more money, I will do just that. The immediate reality is that the advantages American airports close to our border have already would only be amplified.

[Jeff Watson, Conservative, Essex, ON]

They have been investing in a lot of these airports near the border as well.

[Toby Lennox]

They have, absolutely.

That said, we are working very hard in a very competitive field to try to attract different types of traffic out of the United States.

One of the things this really underlines, and I think it's very important for us to recognize it, is that the North American aviation industry is in fact one. Yes, it respects the borders, but in fact what we're starting to find is that Americans are connecting through Toronto because of the advantages it has for flying abroad. If we start distorting that too much, that advantage would be lost.

I'm not asking you to sacrifice human rights at the altar of economic issues. What I'm saying is that this is just an ongoing conversation.

[Jeff Watson, Conservative, Essex, ON]

We heard testimony from the airline industry that they directly employ approximately 35,000 Canadians. There are others presumably tied to it. I'm thinking of fuel suppliers, parts manufacturers, maintenance and repair, and overhaul.

[Toby Lennox]

I can just speak about Pearson. There are 42,000 people who work at Pearson airport.

[Jeff Watson, Conservative, Essex, ON]

Were there layoffs during the recession, by the way?

[Toby Lennox]

We had to engage in some layoffs. There were some contractions. Air Canada has about 11,000 people working at Pearson. WestJet has well over 1,000. We are a dynamic employer and we want to be able to make sure we continue to be. That's very much our mission.

[Jeff Watson, Conservative, Essex, ON]

So your viability is tied to the economic viability of the airlines as well.

[Toby Lennox]

Absolutely.

[Jeff Watson, Conservative, Essex, ON]

Let's go back to the reality we're facing here. We have a deadline.

I will add one other point about Bill C-42 that I think is important for the conversation here, and you can agree with me on it or not, Mr. Lennox. It allows the airlines to be compliant with the Chicago convention of 1944, whereby air carriers are obliged to operate under the legislation of another country once they enter its airspace.

[Toby Lennox]

Yes.

[Jeff Watson, Conservative, Essex, ON]

We are facing a deadline at the end of this year. That's when the U.S. intends to implement this. The question is really about compliance or non-compliance.

I think we've heard from Mr. Hasbrouck's testimony that notwithstanding efforts.... If I can encapsulate what we've come to today, it's maybe that if there are attempts to amend the bill, while amending it may make an expression, it may have no functional ability to actually prevent this kind of information from being obtained and used by U.S. authorities. Is that a fair enough encapsulation of what we've come to here today?

Mr. Hasbrouck, maybe you could start.

[Edward Hasbrouck]

I think that's true. Given the way data flows and the location of the data, the U.S. government has the ability to access the data. They're going to continue to access these data regardless of what you do, unless you take rather concrete action to prevent the data being transferred to the U.S. in the first place.

I think this may have more to do with whether Canadians feel a perhaps false sense of reassurance than whether they are actually protected in any way, unfortunately.