Mr. Speaker, after law school I had the opportunity to work with Professor Wayne MacKay of Dalhousie University, who was working on a couple of papers having to do with anti-terrorism law and privacy and where the two meet. One paper that he produced from this research was for a lecture at St. Thomas University, in New Brunswick. It was titled, “Human Rights in the Global Village: The Challenges of Privacy and National Security”.
Despite having completed my law degree at that time, working for Professor MacKay was the first time I had ever really considered the issues around privacy law. The research I did then, the stories I heard, and the newspaper articles I read had a huge impact on my thinking about law generally.
Bill C-42, An Act to amend the Aeronautics Act, raised all the red flags that could possibly be raised for me when it comes to the balance between making our global village function more efficiently and our right to privacy.
I would like to start by reading the opening paragraph from Professor MacKay's lecture at St. Thomas. It provides a good framework for thinking about this bill, a bill that may touch upon our privacy rights. He stated:
In the 1960's renowned Canadian academic, Marshall McLuhan, coined the term “global village”. McLuhan's vision of the global village was that the world was a community in which distance and isolation had been dramatically reduced by electronic media. In the global village we are crossing borders physically, with travel and trade, and we’re also crossing borders virtually with technology, like the phone and internet. There are many benefits to living in the global village but there are also casualties of this new world order, and one of them is privacy.
One of the casualties of this new world order is privacy, and one of the casualties of Bill C-42 is privacy. Bill C-42 is nothing more than an opportunity for data mining by foreign security services, primarily the United States, and it is an unwarranted invasion of the privacy of Canadians.
I would like to spend a bit of time discussing what the bill would actually do, and then provide some of my comments about this bill.
Bill C-42 amends the Aeronautics Act to allow airlines to send personal information about passengers to foreign security services. The information that would be forwarded is determined by requirements laid out in secret agreements with other countries. The details of these agreements have not been released. However, it is known that Canada has signed or is negotiating agreements with the European Union, Mexico, Brazil, Argentina, Chile, Panama, the Dominican Republic and the United States.
Details of the agreement between the European Union and the United States for the same information transfers are troubling. That agreement allows, first, that the information forwarded would be the passenger name record, which is the file that a travel agent creates when booking a vacation, and it could include credit card information; names of the people a passenger is travelling with; hotel or other booking information, such as tours or rental cars; and any serious medical condition the passenger might have. Second, the information collected can be retained by the United States for up to 40 years. Third, this information may be forwarded to the security service of a third nation without the consent or notification of the other signatory. Fourth, no person may know what information is being held about him or her by the United States, and they may not correct that information if there are errors, which is hard to believe. And fifth, the United States may unilaterally amend the agreement as long as it advises the EU of the change.
Apparently there has already been one amendment: all documents held by the EU concerning the agreement will not be publicly released for 10 years, which means there can be no access to information requests.
As I said, in essence this bill would allow data mining of Canadians' personal information by foreign security services. There is the danger that unless this bill is agreed to, the United States could close its airspace to Canadian aircraft. While this threat may result in pressure to pass the bill, it is unlikely the United States would carry through with this threat.
The Conservatives have put the spin on this bill that it is necessary to fight terrorism. There is not one single example of how this data mining has caught one single terrorist, or any other criminal.
In fact, we have many examples of how this type of information can be misused. We have heard about it before, but I will say this name again, Maher Arar, who is the perfect example. If members will not take my word for it, I would ask that they listen to some of the testimony that was heard at committee. It was clear and it was straightforward.
It is hard to imagine that the Conservatives are still supporting this bill. We do not really know what the Liberals are doing, but we will find out. We think they are supporting it.
I will read some excerpts from the committee. There is a very short excerpt, but it is to the point.
Jennifer Stoddart, whom we all know quite well as the Privacy Commissioner of Canada, said very simply:
Bill C-42 raises important sovereignty issues. We are not questioning the American government's authority to implement its secure flight program. International law is clear that a state's sovereignty extends to its airspace. However, the Canadian government has a duty to protect the privacy and civil rights of its citizens.
There we have it: “the Canadian government has a duty to protect the privacy and civil rights of its citizens”.
Dominique Peschard, the President of the Ligue des droits et libertés, testified before the Standing Committee on Transport, Infrastructure and Communities. Here are some excerpts from his testimony:
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.
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.
I thank my colleagues for their support of my French. I do try.
There is a great quote that I want to use. Nathalie Des Rosiers from the Canadian Civil Liberties Association said in her testimony:
Certainly to the extent that there is an expectation of privacy protected by the charter, this bill would not meet a section 1 challenge--
Members probably know that section 1 says that something that violates the charter could actually be saved, because it has certain importance for the Canadian public.
She went on to say:
--because it has no limitations. It does not adequately protect the problems that may arise with the disclosure of information, and so on.
The first point is there is a constitutional vulnerability that should be looked at before we go too much further. There is no requirement in Bill C-42, or in the regulations of the United States TSA, for safeguards to protect the information. There is no safeguard that the TSA would not pass information to other government agencies, such as law enforcement or immigration.
There is no safeguard that the TSA would not pass this information to third countries. This has been a particularly difficult issue for some Canadians, Maher Arar being a case in point. There is no guarantee that the TSA would not use the information for profiling Canadians to put them on its watch list or the no-fly list.
Ms. Des Rosiers went on to say:
I would mention to the committee that in the United States the no fly list is under a constitutional review as we speak. It has been challenged because there are too many false positives arising.
It is interesting to note that Nathalie Des Rosiers does point out that it is under review in the United States.
We also had some interesting testimony at committee from the Liberty Coalition, a U.S.-based civil liberties organization, represented by Edward Hasbrouck. He said:
Unlike the case in Canada, where someone denied travel is given formal notice of that decision and has rights to appeal it, those no-fly orders in the U.S. are entirely extrajudicial. No one in the U.S. has yet obtained court review by any U.S. court of a no-fly order. It is U.S. government policy not even to admit that they have issued such an order, and that includes those denying passage on flights overflying the U.S. that were not scheduled to land.
The former Secretary of Homeland Secretary, Michael Chertoff, is on the public record as saying he believed that no-fly decisions should not be subject to judicial review, and the current U.S. administration has done nothing to repudiate that perspective
While the consequences for anyone are very serious, including those U.S. citizens trapped abroad who are currently unable to return because they are not allowed to fly and have no other way back to the U.S., they are perhaps most draconian for refugees and asylum seekers.
We should be very clear that the enactment of Bill C-42 would grant the U.S. government de facto veto power over the ability of virtually anyone to obtain sanctuary in Canada, since in most cases it is impossible to get to Canada to make a claim for political asylum or refugee status without overflying the U.S. That power of the U.S. would be exercised at the worst possible point, while a refugee is subject to the persecution of a regime they are trying to flee.
The Liberty Coalition went on to say:
These data are also used for purposes of surveillance of travellers. It is not the case that the information is simply used to make a one-time decision about whether to let you fly. All of your PNRs, even if you are not deemed suspicious and are allowed to fly, will be added to the lifetime travel history and compilation of data already being kept about you as part of the automated targeting system. This includes, as Professor Salter alluded to, a wide range of information. We've been coordinating efforts by individuals in the U.S.—at least, by U.S. citizens, who have some rights in this regard—to request these records. They include, for example, such things as your IP address, who paid for someone else's ticket, what friend's phone number you gave because you were staying at their house when you reconfirmed your reservations, or, in the case of two people travelling together who made their same hotel reservations in the same PNR with their flight reservations, codes indicating whether, behind the closed doors of their hotel room, they asked for one bed or two.
That definitely smacks of all of the terrible accusations of how the mandatory long form census has violated our rights as Canadian citizens. God forbid the government know how many bathroom one has.
Yet, here we are, by law, Bill C-42, allows the government to find out whether a one requests one bed or two.
First of all, it is pretty unbelievable that we would sign on to this. It is shocking that we would. What is even more unbelievable is the incredible hypocrisy of saying no to a long form census that is just trying figure out what the population of Canada looks like, what it is doing, what its needs are and how Canadians are working. This information is to better design programs, to better run the government, to better serve the needs of our people. That is not allowed, yet the U.S. can know who we are sleeping with. It is mind boggling to me.
I would like to read testimony from Roch Tassé, the national coordinator of the International Civil Liberties Monitoring Group. We heard from Canada and the U.S. in terms of civil liberties groups, but this is an international group. Mr. Tassé testified:
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...
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?
Again, that was from Roch Tassé, National Coordinator of the International Civil Liberties Monitoring Group.
These are pretty ominous predictions.
I will wrap up by saying that in 2006, internationally acclaimed Canadian author Rohinton Mistry cancelled his book tour after being repeatedly harassed while flying to and from the United States. Mr. Mistry is not a terrorist. He is not a criminal. He is a national treasure. However, he is a very unfortunate victim of flying while Arab or, as it has become, Arab-looking or with an Arab-sounding name or having any skin tone other than the ruddy white of the British Isles and having a name that would be uncommon on the Leave It To Beaver show.
Rohinton Mistry's critically acclaimed novel A Fine Balance sums it up. We need a fine balance when we are weighing the global village's needs against our privacy rights and this bill gets it wrong.
