Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 20 - Evidence (December 12 meeting)
OTTAWA, Wednesday, December 12, 2001
The Standing Senate Committee on Transport and Communications met this day at 3:18 p.m. to give consideration to Bill C-44, an Act to amend the Aeronautics Act.
Senator Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: I welcome you to this meeting on Bill C-44, to amend the Aeronautics Act. We started yesterday our study of Bill C-44. We have heard witnesses from Transport Canada and from the International Air Transport Association. Today, we will hear, as scheduled, the Privacy Commissioner of Canada.
[English]
We are very pleased that the minister is available so that we might have his perspective as an elected official in addition to the technical information provided by his department's officials.
In our discussions yesterday, I think all honourable senators agreed that although the present bill is simple on the surface there is a backdrop of some fairly serious questions on the use and security of information and the effect of that on our rights as citizens.
This bill will allow Canadian air carriers to not only abide by American law in American territory, but also to send Canadian information to United States authorities in advance of a flight leaving Canada.
A useful amendment was made before the bill came here. Nevertheless, concerns remain in regard to privacy in this committee.
We hope to address that today, and questions certainly will follow each presentation. We will hear from the minister first. Welcome, again, Mr. Minister, to our committee.
[Translation]
Honorable David Collenette, P.C., M.P., Minister of Transport: Madam Chair, I am pleased to be able to join you this afternoon in your deliberations on a small but very an important piece of legislation.
Yesterday morning, we heard from some of my senior officials engaged in this file, Mr. John Read, Director General, Transportation of Dangerous Goods, as well as Mr. William Elliott, Assistant Deputy Minister, Safety and Security, Mr. Hal Whiteman, Director General, Security and Emergency Preparedness, as well as Mrs. Sherril Besser, our legal counsel on this file.
[English]
I will summarize some of the testimony that you heard from the officials and from our colleague, Senator Gill, who has done a remarkable job in working with us on this particular piece of legislation.
The bill is required to permit the timely provision of data to the United States. As you are aware, under the Aeronautics Act, carriers are obliged to operate under the legislation of another country once they enter its air space to the extent of any conflict with Canadian law. Air carriers are required to provide to the U.S. information required under American law once they enter U.S. air space.
[Translation]
However, the Americans, in responding to the tragedy that unfolded in their skies three months ago, signed into law on November 19, an Act which can require by regulations that air carriers provide information about passengers and crewmembers prior to the arrival of that aircraft in their country. Practically speaking, given the relatively short flying time between our major centres, that means the information is required before the plane departs the airport in Canada.
[English]
I understand from reading the transcript of your deliberations on Monday night that the honourable Leader of the Opposition, Senator Lynch-Staunton, questioned, quite naturally, why we do not yet know the full extent of the requirements to be addressed by the regulations. I believe my officials discussed this point with you yesterday, but it is a germane point and central to the entire debate. The wording of the proposed regulations that has been provided to all honourable senators is based on the yet to be finalized regulations that were being be developed between the two countries prior to September 11 to facilitate the pre-clearance agreements.
As the officials mentioned to you, we do not have a final determination from the Americans as to exactly what they will require. Their act requires that the provisions related to collection of information on passengers and crew be in place by January 18, 2002. By that time, they will set out how the data is to be provided - electronically or by other means - when the data is to be provided, for example, a certain number of hours before landing in the U.S., and which data elements will be required. It is this last point that would allow us to finalize Schedule 2 of the draft regulations.
We also need to ensure that information that is not normally provided to Canadian government institutions cannot come to us through the back door. Of course, that was Mr. Radwanski's point in consultation with my officials and with me that resulted in the amendment to the original bill.
Honourable senators, there are many things that we have done since September 11 that we would rather not have done. The exigencies of the situation have forced us to act. Frankly, I have concerns, as do members of the committee, about the provision of information on Canadian travellers from the point of view of the privacy of Canadians and the efficacies of Canadian law.
We really have very little choice. Any sovereign state, whether the U.S., Britain or anyone else around the world, has a right to know who is coming into its country, whether by land, sea or plane. I do not think that we can argue about that. This should not be viewed simply in the manner of the Americans dictating things to us.
The Americans have a serious problem. The effect of the attacks has created an incredible psychological shock to the most powerful country on earth. They are reacting in a way that I think is quite explicable, but in a way that on certain issues can give rise to discomfort to others who have been forced to adapt certain measures to assist them through this difficult time.
We dealt with the issue of the back door information with Mr. Radwanski's amendment. My instructions to my officials are that when they and their colleagues from foreign affairs deal with the U.S. we are to impress upon them clearly the concern that any information that is relayed be information that is prudently used. My officials will also stress that Canadians would understand the providing of this information for security reasons, but they would not understand that it be provided for other purposes. We must rely on our officials to drive that point home and try to make that point clear to our American friends.
With that, I am open to questions.
The Chairman: We heard yesterday that American officials do indeed now practise profiling. What is the government's position on this?
Mr. Collenette: I cannot get into specifics any more than the officials can because they are dealing with the nitty-gritty of it. It depends what you mean by a "profile." If you take the draft regulations that we provided, does that constitute a profile? I suppose it is a travel profile. If I remember correctly, it talks not only about the gender and name of the individual, but also other basic information, including birth dates and the like. It also talk about the method by which tickets were purchased and other related things.
It is a travel profile. Is it the kind of information that should give people cause for concern? I suppose that there are some elements of it that might. That is why the officials must really make the best efforts to impress upon the Americans that there is a certain point beyond which it is perhaps not reasonable to go to satisfy their security needs. We must really leave it like that.
We must pass the legislation, for obvious reasons. I can assure honourable senators that my officials will make best efforts to address the concerns that members of Parliament have raised.
The Chairman: I am concerned about the 29 items on the Schedule 2 list. They are not now mandatory. However, could not political pressures, and later commercial pressures, develop for all carriers to collect and provide all of these items to U.S. authorities?
Mr. Collenette: This is permissive. In other words, if the Americans require it, then this is their shopping list, if you will, of things that we must make available.
Generally, this is an unusual way to proceed with putting through legislation. Normally, you have bilateral issues ironed out and you come to Parliament and talk about the intent of international treaties and obligations. However, because of the timing issues, it is better to put all of the 29 items before you so you know the kind of things that might be made available. That does not necessarily mean that they would want all of this, but it will cover the officials in their discussions.
The Chairman: Should the government advise Canadian citizens that if they travel to the U.S. such information will be collected and used by the U.S. authorities? Is there a way to inform Canadian citizens?
Mr. Collenette: The media has done a pretty good job of explaining the requirements.
The Chairman: Other than the media.
Mr. Collenette: I suppose that there may be a way that we could ask the airlines to make that available.
I am thinking out loud here. I will speak to my officials about it. I suppose there could be an information card tucked into the back of the seat, where the safety brochures are stored, informing passengers about the type of information that may be furnished to American authorities. That might be something that we could do.
Senator Lynch-Staunton: Thank you minister for your presentation, which was obviously prepared for the Senate. I am glad that some of our interventions are heard, and I appreciate it very much.
I have no problem with the purpose of this bill. The only apprehension I have, if my version of the American law is the correct one, is that not only are they requiring basic data that is already compulsory in many cases, such as name, date of birth and all that, but such other information as the under secretary in consultation with the commissioner of customs determines is reasonably necessary to ensure aviation safety.
Have you been able to determine what they mean by "such other information "? That could be any information, from the way it is worded, which would go far beyond what you have termed a travel profile.
Mr. Collenette: I will let the officials answer that because they have been dealing with the Americans. However, one assumes from the discussions that it is the kind of information that is outlined here on the schedule and would not be other things. That is something of which we would be unaware at this moment. Perhaps I can ask my officials to deal with that.
Mr. John A. Read, Director General, Transport Dangerous Goods, Safety and Security Group, Transport Canada: Honourable senators, as you look in the book there, A through E are the standard five elements that make up advanced passenger information. They would be demanding that for all aircraft.
You read the sixth one. We have asked them about that as well, but they have not provided us with any further information. One of the officials said that it was unclear to him exactly why they would need it, since they also have a passenger name record, which you see in paragraph 3. All of our discussions with them, and with their concurrence, have been on the information in A through E of paragraph 2, and then paragraph 3, the passenger name record. They have been unable to tell us if they would ever intend to use paragraph F, but they have it there. I can provide no more guidance than that.
Mr. Collenette: I have very good cooperation with my colleague, Mr. Mineta, the Secretary of Transportation. I talked to him Monday night. I raised the fact that the bill was going through the Senate at the moment, that we expected it to be made law. I will make a special effort to advise him of the concerns of Parliament and ask him to use his good offices to ensure that Canadian sensitivities are respected.
That is about the only thing we can do since we really are dealing not with not extraterritoriality, we are dealing with the application of U.S. law in U.S. guise. They have every right to request certain information.
Senator Lynch-Staunton: Your bill provides that the information that is given by the carrier must be information that is in its control. That would be information that the carrier would ask for its own purposes. Is that how you interpret "in its control"?
If it is meant to be a protection from divulging ancillary information that is not germane to the purpose of the request, then perhaps we can control, through this wording, exactly what information can be divulged since it is "information in control of the carrier itself."
Mr. Collenette: Everything that would be released would have to be in Schedule 2.
Mr. Read: If there were to be more information sought, it would have to go through Canada's regulatory process to be adopted in Schedule 2.
Senator Lynch-Staunton: Then there would be force.
Mr. Collenette: That is always some discomfort to parliamentarians because they say that there is a bureaucratic process to make regulations. There is the gazetting process that is allowed, and then you have public debate. If there are serious concerns, it can always be raised in the House or the Senate.
Senator Lynch-Staunton: I am impressed with the concerns that we all share.
Why did you not include in this bill what we find in Bill C-42? Why is there not a similar provision that the Canadian authorities can request information from foreign carriers on passengers intending to land in Canada? I am referring to clause 4.82(1), that starts, "The Minister may...require any air carrier...?
It is counter to what is in this bill. Why did the two not go together?
Mr. Collenette: That really is covered in our own legislation, as you know.The Immigration and Refugee Protection Act provides CIC with legislative authority to do this. It is not subject to Bill C-44. However, I am sure that CIC and CCRA, the customs people, would outline their programs for you.
We believe that, in effect, you do not need reciprocity in the Aeronautics Act because that is, indeed, covered in Canadian law. The Aeronautics Act applies in this case because of the rules governing airlines going into another country. This is covered in another law, the most appropriate law.
Senator Lynch-Staunton: I do not know if we are talking about the same thing; perhaps I did not make myself clear. In Bill C-42 at present there is a clause requiring that the minister be provided with information on passengers landing from abroad in Canada. Did I hear you say that that information is already provided and, therefore, is not needed?
Mr. Collenette: At the risk of contradicting my officials, I will let my officials clarify the situation. I do not wish to show ignorance of it, but they are dealing with the minutia.
Mr. Read: The minister has not said anything incorrect.
Senator Lynch-Staunton: That is on the record.
Mr. Read: However, the minister did not go quite far enough. The bill that gives the Canadian Immigration Commission the authority to request the same kind of data the U.S. is requesting of us has gone through Parliament. The bill has already gone through. The regulations to be made pursuant to the Immigration Act have not yet been put in place.
Therefore, to answer your question, could we ask of the Americans the same that they are asking of us, the answer is yes. The authority is already in place. You do not see it in Bill C-44 because that bill has already been passed.
Senator Lynch-Staunton: In Bill C-42, clause 4.82 reads as follows:
The Minister may, for the purposes of transportation security, require any air carrier or any person who operates an aviation reservation system to provide the Minister, within the time and in the manner specified by the Minister, with information prescribed in the regulations
(a) that is in the air carrier's or person's control concerning the persons on board or expected to be on board an aircraft for any flight specified by the Minister if the Minister is of the opinion that there is an immediate threat to that flight; or...
I can interpret that as meaning that there will be a requirement similar to the one requested by the Americans by the Canadian authorities, which is not there at the moment; otherwise, why put it in Bill C-42?
Mr. Collenette: Senator, this is the point of Bill C-11 that went through earlier.
Senator Lynch-Staunton: Immigration.
Mr. Collenette: All this is provided in Bill C-11. The regulatory process is such that the minister felt that the regulations from Bill C-11 would not be ready until the fall of next year. This, in effect, gives immediate application to something that has already been through Parliament. This brings forward the application of certain provisions of Bill C-11 that we need more urgently. That is why it is somewhat unusual.
Senator Lynch-Staunton: It certainly is. This is already in Bill C-11, but the regulations for Bill C-11 will not be ready in time. This bill will not be passed until next spring, it appears. Will the regulations for this be ready in time also?
Mr. Collenette: Bill C-44 is to be passed -
Senator Lynch-Staunton: I am talking about Bill C-42 now.
Mr. Collenette: I will let Mr. Elliott have a go at this.
Mr. William Elliott, Assistant Deputy Minister, Safety and Security Group, Transport Canada: Perhaps I could clarify the matter. The minister and Mr. Read have been talking about certain provisions in Bill C-42 that relate to the authority of ministers other than the Minister of Transport. I believe the honourable senator is referring to the provision that relate to the proposed authority for the Minister of Transport to require information necessary for aviation security. Those provisions would apply, as well, to domestic flights.
There is existing authority under other legislation; however, the specific provision the honourable senator is referring to is a new provision, not in the existing Aeronautics Act. It would provide the Minister of Transport with the authority to request information with respect to people on flights, including flying within Canada.
Senator Lynch-Staunton: I return to my original question, and I will end on that: Why was that new provision not included in Bill C-44? If it is so essential for one, it must be essential for the other.
Senator Oliver: That is a very good question.
Mr. Collenette: That is a very good point. I return to my earlier answer, senator. The attacks occurred in the U.S. It is the U.S. that has been physically and psychologically damaged by these attacks in a way that Canada has not. That does not mean to say that it is not helpful to have this information, but the U.S. is operating to its own timetable, being the recipient country of the terrorist attacks. Therefore, they have set the timetable on this as it applies to their own country.
While we could have the benefit of the similar provision in Canada, we are not moved by the same degree of urgency. I do not think that shows any slackening on our part. It recognizes that the real impetus for this information being made available comes from the U.S. However, it will be available.
As Mr. Elliott said, there is partial authority already, but there will be authority beyond reproach, I assume, once Bill C-42 is passed and hopefully that will not be too long into New Year.
Senator Callbeck: Minister, you mentioned that, with Bill C-42, Canada would have the power to set up a similar regime so that we can ask the Americans for the same information. When do you anticipate that that might be put into effect?
Mr. Collenette: That would be done by Immigration Canada. We have to get Bill C-42 passed and then the regulations must be set.
Senator Callbeck: It is likely to be a way down the road.
Mr. Collenette: I would not say way down the road. The whole point of Bill C-42 was to advance provisions of Bill C-11. You will gain perhaps six months, I would imagine, in their application.
Senator Callbeck: Bill C-44 bill amends the Aeronautics Act at section 4.8. Proposed section 4.83 states, in effect, that Canadian aircraft must provide to a foreign state any information on passengers required by the laws of the foreign state. Does that mean that one foreign state will want certain information according to their laws and another will want different information?
Mr. Collenette: That is possible, but I do not understand the point.
Senator Callbeck: At first I thought we would be supplying certain information to the United States, as we are talking about right now. However, if other countries want information, I assume it would be the same information. However, this bill says that if we accept to give information to the country, that what we will give them is what they require by law.
Mr. Collenette: As Mr. Read just told me, the British, the Germans and the French are looking for this kind of information. What Canada would like is an international protocol, if you will. I suspect that this might be used as a model or a template for agreements elsewhere in dealing with those countries.
Again, you are dealing with the rights of sovereign nations to require information on persons entering their country.
Senator Callbeck: In other words, it might be different for Germany than for the United States?
Mr. Collenette: It certainly would not be beyond what Parliament is providing here. It must be in the schedule.
Senator Callbeck: It says "that is required by the laws of the foreign state." It looks to me as though they are in the driver's seat as to what we have to give them.
Mr. Collenette: In accordance with the regulations, it says that, too. The Germans could come along and make more all-encompassing demands than the Americans. We would argue with them, "Look, if it is good enough for the Americans it must be good enough for you." If the Germans say, "No, sorry," and we come to the conclusion that it is not provided for in our law and regulations and we are not prepared to adjust our regulations to deal with German notions of sovereignty, I suppose the option is not to fly to Germany. These are all hypothetical questions. I do not think countries will be unreasonable. This process sets something of a template for others.
Senator Callbeck: My other question in regard to legislation is that there is nothing included in this bill for penalties; should there be?
Mr. Read: Bill C-44 is permissive. It will allow an air carrier to provide this information to Germany if they were in the schedule or to the U.S. if they were in the schedule. It does not oblige them to do that. There is nothing obliging under Canadian law here. We do not oblige them to do anything. We give them permission to do this.
Mr. Collenette: The penalty, I suspect, is that if they do not play ball, they will not land in New York, Chicago or anywhere else.
Mr. Read: However, that is not a Canadian penalty.
Mr. Collenette: That is an American penalty.
Senator Oliver: In regard to oversight, really, Schedule 2 is a work in progress. We do not know its full extent, whether it will be 30 or 35; we do not know the number of items they will ask for. As it is now, there is absolutely no way that either a committee of Parliament or either House of Parliament could ever have a look at some of the new items that may be added. Should there not be some parliamentary oversight and should we not at least get the regulations or the completion of Schedule 2 presented to this and other committees so that we could have a look at it? Some of them may affect not only privacy rights but other constitutional and legal rights of Canadians. Would you agree, minister, that there should be some kind of parliamentary oversight for that?
My second question relates to profiling. As you know from reading the transcripts from our last meeting, a number of us had some grave concerns about what the Americans call CAPS, computer-aided profiling. One of the things that we have all learned from September 11 is that there are Arabs and other people in the world now who have been targeted and profiled as a result of that incident.
With the kind of data and information that the Americans will have in their computer-aided profiling system, the CAPS system, what protection do we as Canadians have that we will not be targeted and profiled and have our rights under the Canadian Charter of Rights and Freedoms infringed upon? That is a serious concern.
Mr. Collenette: The CAPS system is an industry program that is run by the U.S. aviation industry. It meets requirements established under the FAA. The program does not operate in Canada. There are no plans to institute it. The information in the program is the information provided by passengers to the carrier travel agent in the normal course of making travel arrangements. If there is sufficient information in the system about a passenger, that passenger can be exempted from some of the security screening provisions relating to baggage, for example.
In other words, the system is used in the U.S. to speed through those passengers who can readily be determined not to be a security threat. However, as I understand it, and my officials can correct me, this does not have any application to racial profiling, if that is where we are heading. This is simply something to speed up the processing of those passengers who are deemed not to be a security threat. I do not think we should read too much into it, and it does not apply in Canada. I do not believe it is germane to the information that is being provided for under the auspices of Bill C-44.
On the second point, senator, the regulations will be gazetted and there are the Charter protections. There is nothing to stop this committee or any committee of the Senate or the House from initiating a reference to have an examination of the regulations.
In this particular time frame, with the Christmas break, and in order to meet the timetable for application in the U.S. to have those regulations actually debated here at committee, it will be difficult to do that before the law is passed. That is unfortunate; however, it relates to the urgency on the U.S. side and it deals with the time of year and Parliament's calendar.
There is nothing to stop you, Senator Oliver, from suggesting to your colleagues that my officials and I and others come back for you to ask: "Okay, what have you finally got? How do they meet the concerns of Parliament?"
Senator Oliver: I would also want to know how the privacy rights of Canadian citizens are being affected under these regulations. Would you undertake then, minister, to return when we resume in the New Year?
Mr. Collenette: I will come back any time to any parliamentary committee on any matter. That is your decision to ask a minister or a department to return. Obviously, there are concerns here. Again, Canadian privacy laws do not apply in the U.S. Mr. Radwanski recognizes that. I am sure in a perfect world he would rather have had an amendment that would have had extraterritorial application with the laws in the U.S. but he cannot. His amendment covers the government and its agencies being the beneficiary of information, as he says, through the back door. All we can do is to come here and say, "Okay, this is what we finally agreed upon, along the lines of the schedule, this is the wording," and deal with your concerns at that time.
Senator Finestone: Who is sailing the ship, Canada or the United States?
Mr. Collenette: It is a question of who is flying the plane. Canadians will be flying the plane, but they must land in the United States. The bold fact of the matter is that the Americans have a right to demand information on people they admit to their country, purely and simply.
Senator Finestone: I agree with that. However, there is a degree of sovereignty that Canada has. I found it quite astonishing, frankly, Mr. Minister, that it took the Privacy Commissioner, not the people in your own bureaucracy, to recognize that there was an infringement of privacy rights. I find that quite surprising. There are two things that a ministerial bureaucracy is supposed to do, that is, check to see that you are following the Charter and check the privacy rights.
How could you do that? It is not your fault, I wish to make that clear.
Mr. Collenette: I take your point. We had the Aeronautics Act up for amendment and it was proceeding in its merry way. Then we had September 11 and there were certain things that came to our attention, and some of them came late in the game. I do not know when our officials first knew of the requirement of the U.S. for this amendment, but then we got to drafting the particular amendment to the Aeronautics Act. The timetable was very compressed. They met with Mr. Radwanski, but we were already about to introduce the bill, a couple of weeks ago. They accepted his points.
Mr. Read tells me that we called the Privacy Commissioner for consultation.
Senator Finestone: After you drafted the bill and prior to your tabling it?
Mr. Collenette: Everything was done so quickly. As soon as it happened, I raised it in the House. We were upfront about the commissioner having met with the officials the day before. They met on the Wednesday; I made the statement on the Thursday. I undertook to Mr. Gauthier to have the draft regulations for Friday so that we could assist to get them through the house. Then Mr. Radwanski called me on Friday and went through this with me, and I agreed with his points. I do not think that we should beat up on the process or the officials in this case. It is because everything happened so quickly that perhaps the normal procedures were not followed.
Senator Finestone: Mr. Minister, I count on your voice around the cabinet table to ensure that our rights as citizens are not being compromised under the stress and strain of September 11. September 11 will pass in years to come; however, with respect to changing privacy rights and the rights of our citizens, once they are lost they are difficult to regain.
Mr. Collenette: We are not doing that here, senator.
Senator Finestone: I am not blaming you; I want that understood. My comment is to the bureaucrats, quite frankly, and applies not only to this bill, but also to Bills C-42 and C-46. I find it rather sad that we must have a comeuppance and a wake-up call. A wake-up call should have taken place somewhere else.
To return to this bill, I still do not understand who owns the information about you and me. If I have accused the bureaucracy of doing something that they should not have done and they submit disinformation to someone, a black file will be created on me. Then if I go to the United States, or wherever, I could end up in the clink. How can I see what the Americans have on that list about me? How can I protect myself when I look at this Schedule 1, which I agree with, or Schedule 2, which has a whole bunch of notations on it that I do not agree with?
Do you agree with all the information on Schedule 2, and who owns that information?
Under Bill C-6, I have the right to see all the information that has been gathered about me. I have the right to correct that information. What rights do I have under this new duress bill?
Mr. Collenette: You have every right to see information gathered by a Canadian agency, as I understand it, that may be gathered in Canada. The fact is that this information, as outlined in the schedule, once it is handed over by Air Canada, or whomever, to U.S. authorities, obviously it becomes their property. That falls outside of our control. Mr. Radwanski recognized this. He lamented this in private and I agree with him. However, as I say, those are the facts of life. We must decide whether we want to facilitate the entry of Canadian planes into the U.S. or not. This is a tradeoff.
My officials are trying to impress upon the Americans the sensitivities in Canada and to ensure that this information does not end up where it should not. They have probably received some general assurances to that effect. Can that be enforced? No, we cannot enforce that under American law.
Senator Finestone: It is frightening.
I have in my office right now a case involving the RCMP. I will ask Mr. Read, Mr. Elliott and Ms Besser to take a good look at it. The RCMP, which was in a vendetta frame of mind, provided disinformation about a woman who was a joint Canadian-American citizen. As a result, she has had a difficult time clearing her name. The RCMP was proven wrong. If we have no way of knowing how the information was gathered, we have no way of reading what that information is, and I am blocked from going into the United States, do you think that is fair?
Mr. Collenette: The gathering of that information by a Canadian agency really is something that must be done under Canadian law.
Senator Finestone: Must CSIS or the RCMP do that?
Mr. Collenette: That must be done by whatever agency.
I am a little out of my area here; however, I remember, from my day in Defence. We had responsibility for CSE and I have had dealing with the CSIS people. I would assume that if a Canadian security agency has someone under reasonable suspicion or if there is a potential criminal investigation, that agency has the right to gather certain information. If necessary, the issue is then is that handed over to the U.S.; that is done on a regular basis. In other words, if the FBI has concerns, they work with the RCMP on potential terrorist threats or criminal cases. There is cooperation and provision already for the exchange of information where there is potential for criminal wrongdoing. However, you should ask Mr. MacAulay and his people about that.
Senator Finestone: I agree that your bill is necessary, in terms of what we must do; I do believe in that. The fact that we might be asked for different kinds of information does not mean we have to give it, to Germany, Saudi Arabia, Russia or China. We have agreed to this; we have set up a list. I would hope that we would not change the type of information that we would share about a particular Canadian, irrespective of what country the individual's plane will land in.
There must be a way in which one's own information is personal property, such that an individual should have the right to review the information. An individual should have the right to repair. An individual should have some rights on damages and some kind of penalty situation.
I know you cannot address these issues, Mr. Minister, but they are concerns that I have. When we place limits on rights, freedoms and privacy, there is a grave threat to the fabric of Canada.
Mr. Collenette: You are right, Canadian law protects Canadians. However, if a Canadian wants to travel to the United States, what in essence that individual must accept is that some of the protections he or she normally would have in Canada are being ceded to the U.S. That is a condition of entry.
The decision is yours as to whether you want to go to the United States. The United States has every right to decide whether or not Senator Finestone is welcome.
The Charter of Rights protects Canadians within Canada. Everything that we have done, all of the discussions on the public security committee and the cabinet have all been in the context of Charter protection.
The moment a Canadian citizen elects to go to a foreign country or be subject to foreign laws, and that is what happens when you want to travel to the United States, then that individual must make adjustments.
In your case, what you are saying is that you are technically ceding some of your personal sovereignty. The choice is yours as to whether you want to go to the United States and, therefore, be subject to that.
Senator Finestone: Do you know whether IATA is taking these concerns and policy to the attention of its members?
Mr. Read: What is crucial to the debate is what goes into Schedule 2. There is not currently an international standard for passenger name records. We will try to get an international standard for passenger name records. If we could achieve that, then we would have a standard list for the United States, Germany, France and so forth.
We have had so much trouble trying to determine what the Americans want that of our own volition we have been pushing that. What we need here is an international standard to say what exactly is a passenger name record.
Mr. Collenette: Not to be trite about this, but this takes globalization to a new level. We are becoming citizens of the world. Therefore, rights must be protected around the world, and that can be done through conventions - and they have been, through human rights conventions and the like. This is another dimension to globalization, to try to ensure that there is extraterritorial protection of rights.
Senator LaPierre: We do not need a bill similar to the one the Americans have passed, because their what is in their legislation, in a sense, the protection of their country and the demands they make, is taken care of in the bill already passed. This is what your officials told me yesterday.
Mr. Collenette: That is true for Canadians, yes.
Senator LaPierre: Canada does not need to pass a bill such as the Americans have passed and which comes into force on January 19; is that correct?
Mr. Collenette: That is right.
Senator LaPierre: If I understand correctly from your officials, if I wanted to go to Washington and I go to the second floor of the Ottawa International Airport, I am pre-screened; is that what we mean by "pre-screened."
Mr. Collenette: That is right.
Senator LaPierre: If that is the case, this bill will not apply to that, or is that only Schedule 1?
Mr. Read: We were advised yesterday that Schedule 1 will have to be provided as a list by the air carriers for all passengers, whether pre-screened or not.
Senator LaPierre: Schedule 1 is what we are talking about, as far as the pre-screening is concerned - in other words, the five areas that you have mentioned in Schedule 1 - is that correct?
Mr. Read: The Americans do not necessarily want a passport number. It may be a driver's licence. It is not obligatory that it be a passport number.
We were advised yesterday that they those five numbers or a variant thereof will be required from all aircraft, whether pre-screened or not. That is certain. They may require, as we know, under the regulations, at some future time or whenever, a passenger name record.
Senator LaPierre: Mr. Minister, the regulation document that we have before us is entitled "Outline of the intent of regulations to be proposed pursuant to the Aeronautics Act as amended by Bill C-44." The keywords, sir, are "intent of regulations to be proposed." Is it Canada that is proposing or has the intention of proposing this regulation? It is not clear.
Mr. Collenette: These are our regulations, senator. The reason that we use the wording "the outline of the intent" is that, for obvious reasons, we are unable to write the regulations yet because we are still in discussion with American authorities to determine the breadth of the information required. However, this is the intent, to cover these areas.
We said that we could not put the draft regulations forward if our discussions with the Americans were not concluded. We told Mr. Gauthier, a Bloc member, who raised this in Question Period, that we would provide the intent that would guide our officials in discussions with the U.S. for the development of the Canadian regulations.
We have made best efforts to be as upfront with parliamentarians as possible. Based on the strength of what we provided that day, the Bloc, and I think the NDP also, agreed to the bill coming to committee, to fast tracking the bill.
Senator LaPierre: When your officials sit down with the Americans officials, they will have this as their statement of intention to discuss and negotiate with the Americans.
Mr. Read: Yes.
Mr. Collenette: I would be surprised if the ultimate regulations differ in any substantive way from the wording that you have here. We must have the flexibility.
Senator LaPierre: I understand that, sir. I just wanted to know who was intending and proposing.
Number 21 of proposed Schedule 2 reads: "Any stated seat request in respect of the flight." What possible use is there to know that? Many people change seats.
Mr. Collenette: It is not inconceivable that certain individuals who may be suspect as terrorists have a predisposition to sitting in a certain seat - the bulkhead, on the aisle or emergency exits.
My wife always sits in the aisle. I do not expect her to be a terrorist.
There may be other information that the Americans would have that would lead them to believe that a person is suspect. What is in number 21 may be an additional piece of information - the person they suspect always seems to sit in that seat, and that seat may be deemed to be a more sensitive from the point of view of doing something on a plane such as September 11.
Senator LaPierre: I always sit in an aisle seat because it makes the washroom easier to access. I will change my behaviour now; I will take seats all over the plane.
Mr. Collenette: It is also closer to the pretzel centre.
Senator, all the terrorists on September 11 were in aisle seats.
Senator LaPierre: You have me frightened. Schedule 3 does not seem to be there; is there a Schedule 3?
Mr. Read: It is at the bottom of the page.
Senator LaPierre: Sir, yesterday I heard the phrase "four hours." Your officials said that it has not been defined.
[Translation]
In general, given the relatively short flying time between our main centres, this means that the information will be provided before the plane departs from Canada.
[English]
Therefore, there is a need for the Americans to have this information before the plane leaves Canada. Is that right?
Mr. Collenette: In order that they have time to review it.
Senator LaPierre: If I have understood you and your officials, the Americans are entitled to this information that you will provide to them. They are entitled to it for the United States of America, but they are not entitled to it for planes flying within Canada. Are you breaking any law in the process of giving it to them prior to the plane crossing the American border?
Mr. Read: You are correct in some of your points. Let me put them in a different order.
Senator LaPierre: That is what confused me yesterday.
Mr. Read: I will keep them in the order.
Regarding your last point, currently, when a Canadian aircraft enters American air space, they are obliged to satisfy the aeronautic laws in that country. Today, without the assistance of this bill our officials could provide all that data. We know that.
The second point you made is that the U.S. has now said that they need more time to examine the data they receive. There is not enough time to examine the information for a flight from Vancouver to Seattle.
Their legislation actually indicates that they can specify the time. We were curious as to how much time, and someone threw out the number, unofficially, of four hours. I used the time notionally; it could be one hour; it could be three hours.
Whatever it is, we know that it will be longer than the flight from the border to the destination. To be able to satisfy the Americans' as yet to be determined time interval for information, we know that we will have to provide the information while the plane is still in Canada.
Senator LaPierre: Do you contravene any Canadian laws in doing this? Do you break any elements of the Charter?
Mr. Read: That is what this bill allows. We would not be allowed to provide this information under the Personal Information Protection and Electronics Document Act in Canada. However, with Bill C-44, you will now be allowed to do that. That is the purpose of the bill.
Mr. Collenette: Senator, I know the technicality at which you are getting. If someone decides to fly to the United States, they must accept a certain limitation on their rights by virtue of these provisions.
Senator LaPierre: I understand, sir, that you will force the travel agents or anyone to provide that information in the ticket envelope that comes to them, or something like that.
Planes fly over American territory on their way to Vancouver, going west or east. Does that mean that you must provide the information to the Americans?
Mr. Collenette: They are going point to point in Canada.
Senator LaPierre: Sometimes, they fly over American territory.
Mr. Collenette: If you are going to Barbados on holiday and you fly from Toronto, you fly directly over the United States for the first 600-miles. The U.S. legislation exempts that.
Senator LaPierre: Thank you. It does not cover that?
Mr. Collenette: The U.S. legislation allows for that.
[Translation]
Senator Biron: If I understand correctly the intent of this Bill, it is to transmit ahead of time information that we have provided to our travel agent or that we have freely made available to the air carrier, and which, in any case, the Immigration agent would have available when we arrive at the airport. In fact, we do not provide any information that we would not have provided otherwise.
The benefit of this would be being that by transmitting that data ahead of time to the computers in the United States, the passengers' security would be increased, and also, the passengers would go faster through the customs, because they would have been pre-screened.
On the arrival of passengers, the Immigration agents could enter that data, and any other information - much more data than the air carriers can provide now -which is still somewhat limited. They could still enter that information in their computers: to come to the United States, you need to provide that data. They can ask us questions, not only about those records but also on our financial or health profile.
The US Immigration agents can ask you any question they want and enter your answers in their data, and you cannot do anything about it.
Mr. Collenette: You are right.
Senator Biron: Very well, thank you.
[English]
Senator Oliver: Mr. Minister, one of the witnesses who appeared before us yesterday raised the spectre of what might happen to some of this personal information that will be collected and given to American authorities.
It was noted that we are not really sure where some of this private, personal information will end up. What assurances can you give us that this information gathered about Canadians, personal information, under Schedule 1 and Schedule 2 will, in fact, remain with authorities and will not be sold or given to any other person?
Mr. Collenette: Schedule 5 says that upon request the information provided to the under secretary of the customs service under this subsection may be shared with other federal agencies for the purpose of protecting national security.
Unfortunately, from your point of view we must rely on an American law to protect this information. However, let us not denigrate the U.S. system. There are constitutional provisions in the U.S. that can be used, I assume, even by non-citizens. It is not just for American citizens. I am not a lawyer, so I beg to differ, but we have our counsel here. If there were a potential transgression in regard to information pertaining to you, given in good faith to the airline and then passed on to American Express, for example, which is a significant concern, I would assume that you would have a right to pursue the U.S. court system.
The Chairman: Thank you, Mr. Minister. Merry Christmas and we will see you in the New Year.
Mr. Collenette: Honourable senators, I would like to thank the committee for the work it has done on all the bills. Let me say that the fun has only just begun; I can promise much more legislation next year, including the Airports Act, the Canada Transportation Act amendments and others. We will be seeing a lot of each other.
The Chairman: Honourable senators, we now have before us the Privacy Commissioner of Canada.
Please proceed, Mr. Radwanski.
Mr. George Radwanski, Privacy Commissioner of Canada: Honourable senators, I have brief remarks to make. I believe I have made my position on this matter quite clear. I will briefly restate it and I will be happy to answer any questions that honourable senators have.
I regarded this entire matter with some concern. Obviously, it is an instance where Canada is being forced by another country, in this case the U.S., to pass a law with some urgency that does touch on the privacy rights of Canadians. I wish to say, with regard to Bill C-42 and now, of course, its offshoot, Bill C-44, that I have had some very positive meetings and discussions with officials of the Department of Transport and also with the minister. With regard to Bill C-42, those discussions are continuing. With regard to Bill C-44, I asked for one amendment, which I will return to in a moment, and the minister did in fact introduce it and it is in the version of the bill that was passed by the House of Commons.
I have expressed other concerns that I hope the minister and the department will continue to move forward toward addressing, and I certainly intend to stay quite involved in that. The amendment I requested was to address the concern that, while this information is being provided to U.S. or other foreign authorities on the basis of an exemption from the new private-sector privacy law in order to permit its provision, really because we are being coerced to do so, it would not be appropriate if our own government and its agencies were to be a backdoor beneficiary of having this information flow back into Canada used for limited purposes under a variety of information-sharing agreements with the U.S. or any other countries. Therefore, I requested an amendment to ensure that information thus collected by other countries could not be collected back by the Canadian government or its agencies and departments, except for purposes of national security and public safety and defence, and that amendment was put into the bill.
I have additional concerns that obviously, given the time frame and other circumstances, were not to be addressed in the legislation but they, nevertheless, remain important concerns. The first is that there are, in my analysis, no effective safeguards on what happens to such information about Canadians once it is provided to foreign authorities, in particular in this instance, the United States.
The United States does have a Privacy Act. First, that act, unless the Canadian legislation has no real effective oversight provisions, has no oversight body or official as there is in Canada. Second, of even greater concern, the privacy protections of that act, such as they are, do not apply to foreigners. The act refers to "if they do not." It refers to the rights of individuals, and individuals is defined as citizens of the United States or landed immigrants. A Canadian has no rights or recourse under the American privacy law as such. It is a matter of goodwill, if that. There are no legislated protections. That is a concern, obviously.
I have asked the Minister of Transport to nevertheless engage very actively in discussions with the U.S. authorities and seek undertakings that the information collected for purposes of security will not find its way either to private-sector entities or other entities in the U.S. or to other third-party countries, allied countries, for instance, under various information-sharing agreements. That is the first point.
Another concern, of course, first at the level of principle, is that the exact data elements that are to be provided to other countries under this legislation are not specified in the law; they are to be spelled out in regulations. As a general statement of principle, when we are touching on the rights of Canadians, and particularly when you are touching on a fundamental human right like privacy, it is obviously preferable that the specific degree to which that right may be intruded upon should be spelled out in legislation or subject to this whole process, and debate and so forth.
I understand why I would not get very far in pressing for the law to be changed in that way. Given that this law is in response to external pressure and the demands for specific information items may change, obviously there would be a concern that the legislative process might be too slow. However, the principle remains that it would be obviously preferable if the details were in the law. Given that they are not, it is very much my hope that when the regulations are being prepared I will be given an opportunity to comment and that draft regulations will be made public in a formal sense. This is a statement of intent of regulations; these are not draft regulations. However, it is very much hoped that the regulations will be made public and that there will be an opportunity for discussion on the data elements that are presented there.
Senator Oliver: They are always gazetted, as the minister said.
Mr. Radwanski: It is a matter of timing and whether there is one day to deal with the matter or two weeks. That is a concern.
Equally, it is very much my hope that, if the government feels the need to amend the regulations by Order in Council, my office and I will be given notice and a chance to make representations and raise any concerns. I say that because some data elements are of greater concern than others. In the current list, as provided, Schedule 1 is innocuous. Schedule 2, for the most part, is innocuous. There are a few things that concern me somewhat. I am not clear why the authorities of a foreign country and whoever else may be privy to this information should have the home address and the telephone number of Canadians who travel. That information is not normally provided in crossing the border; we do not provide that information when we drive across the border. I am not sure why that which can be sensitive, personal information should be available without adequate safeguards.
I also have a concern with respect to means of payment. If it means a notation as to whether payment was cash, credit card, debit card, travellers cheques, fine. However, I would like it to be very clear that means of payment does not mean Amex card number such and such, expiry date such and such, because that is very personal information. When you do not know where the information could end up, that could be a cause for concern.
I would be very concerned if the United States or any other country were to ask for other data elements in the future. For example, if they were to ask for a traveller's frequent flier record for the past year that could pose a real threat in some ways to Canadians. Let me give you an example.
There are Canadians who do business in the Middle East and travel extensively. My understanding is that often those people carry two passports, one to be stamped by Israeli authorities and one to be stamped by those of other Middle Eastern countries. Let's look at a worst-case scenario. The U.S. authorities get the frequent flier records for all travellers. The record for traveller X, a Canadian, indicates frequent trips to Israel and Arabic countries. Suppose that under a cooperation agreement that information found its way to Saudi Arabia, Kuwait or wherever else. If said Canadian turns up in a Middle Eastern country with a passport that indicates no travel to Israel, yet the authorities have a printout indicating the individual has made 10 trips to Israel, that individual could find himself in some difficulty and, depending on the country, perhaps at some risk.
These types of things are of concern. That is why it is important to have safeguards as to how the information will be used and that it will not be shared with other countries, and to have a real process for debate and assessment of any data elements that are included in the regulations for provision to other countries.
That being said, my discussions with the minister and the department to date have been positive. Certainly, it is my hope that they will proceed to act on these concerns. If they do not, it is certainly my intention to be vociferous in encouraging them to do so. At this point, I am at your disposal.
Senator Oliver: First I wish to thank you for the work you did in presenting the amendment that was passed in the House of Commons. It is a good amendment and thank you for that.
When you came into this room today, the minister was here and he was answering questions. You will recall that the last question I asked the minister related to protection of information that Canadians are obliged and will continue to be obliged to give to American authorities under this bill. You heard the minister's answer. His answer was very different from what you said. You said that you have asked the minister to seek undertakings about this matter. The minister's answer was not there. Can you explain to me the difference between the two answers to the same question?
Mr. Radwanski: I cannot, nor would I attempt to. It would not be appropriate for me to either comment on the minister's rationale for a given statement or to try to interpret his meaning. I can only tell you that the analysis that has been made by my office and myself is that there are no effective safeguards on how that information can be used. It is true that the American legislation says that information may be shared with other agencies for purposes of security. I note, first, that it does not say that it may be shared with anyone else for any other purpose. That is not irrelevant.
Second, you would then have to follow a detailed trail as to what constraints there are on any such other agency as to how it may share information. Even more of concern is that were there to be a breach, even a systematic one, I am not aware what recourses, first of all, a Canadian would have, because the Privacy Act protections do not apply.
One of the interesting things about privacy rights is that a violation of privacy is irreparable. Once people know something about you that they should not, there is no way to make it unknown. In the worst-case scenario that I described, where the information was conveyed to a third-party country, let alone what would happen if it were for commercial interests, data mining or what have you, by the time you find out and complain you may have a serious problem. Your privacy may have irrevocably been damaged. What is your recourse - suing someone in the American courts? I do not know what success one might expect. However, I know that even a receipt of damages in a best-case scenario cannot sometimes undo the damage, so it is better to have safeguards upfront.
Senator Oliver: My second concern is computer-aided profiling, CAPS. I have asked a number of witnesses about it; I would now like to ask you about this subject. First, what do you know about CAPS and how are Canadians' rights under the Charter, constitutional rights and legal, to be protected by American's use of computer-aided profiling, based on some of the data from Schedules 1 and 2 and such other data that they may have put into their computer?
Mr. Radwanski: The answer to the first question is that I know that these techniques exist. There are many ways in which they can be used and applied. I do not know exactly what the Americans are doing at present or what any other jurisdiction might do.
Senator Oliver: Have you seen any of their programs or their database?
Mr. Radwanski: I have not.
As to how the constitutional rights of Canadians are protected, they are not protected in the U.S. at all. A Canadian has no constitutional rights in the U.S. Canadian constitutional protections are of no interest to another jurisdiction when it is exercising its jurisdiction on its soil. That is why it is so important to have, ideally, safeguards upfront, because the information can be put to any use that another country chooses.
Senator Oliver: What would you suggest, if anything, that we as Canadian public policy-makers do to ensure that the CAPS is not used to profile a particular individual in a particular group?
Mr. Radwanski: I suppose we cannot ensure that the Americans do not build profiles, or any other country. Frankly, as far as that goes, when you are in another country, you are subject to its laws. To the extent that they have information about you, they can profile you in any way they like. That is presumably why they want the information.
At the end of the day, Canadians do have the option of not entering a country if they do not want to be subject to its approach to human rights, investigative techniques or what have you.
As Canada's Privacy Commissioner, my concern is, of necessity, a limited one. The argument is a technical one: If we make an exception in Canada's private law to permit a transfer to another country, it is very important that our government be dynamic in seeking safeguards from that country. At the end of the day, the United States and we are supposed to be allies. We are supposed to be on the same page.
They are not an adversary. I do not think we should be timid about saying to them that we are providing the information for the purpose that they stated but that we would like an assurance that it will only be used for the purposes for which it was stated. If they want it, we want assurances that the information will not be given to others. Let other countries ask for the information on their own merits if and, as they want it.
Senator Oliver: Should we have that in Bill C-44 that this information shall not under any circumstances be disseminated?
Mr. Radwanski: Senator, that would be wonderful. To be honest with you, my role as I interpret it in these matters is to pursue the art of the possible. If I had taken a dogmatic position on this proposed legislation, much as I find the bill a cause of discomfort -
Senator Spivak: Repugnant.
Mr. Radwanski: Those were my words but that applied to the circumstance of having to rush this legislation through with effectively a gun to our heads by a supposed ally. I find it highly uncomfortable to have this kind of legislation in these circumstances, but I regard my role to be to do what I can to improve it. I also should be reasonably aware of the constraints under which it is being introduced.
Frankly, if I persuaded this committee right now that it should be right in the legislation, again speaking of the art of the possible, given that the House of Commons is rising today and this stuff must be rushed through -
Senator Oliver: It is not rising today.
Mr. Radwanski: Is it not?
Senator Oliver: They are waiting for you.
Mr. Radwanski: I do not know how realistic it would be that this kind of amendment would be put through, quite frankly. There is what is best and what is reasonably likely to happen.
When the countries to which this information may be provided are identified, you could recommend that those regulations be based on only identifying those countries that have agreed bilaterally to undertakings on limitations of the use of the information. I would certainly welcome this committee making that point and assisting me in persuading the minister that the department and the government should take a muscular approach to this, and the regulations should only list those countries that are willing to undertake to use it for the intended purpose.
Senator Oliver: Currently, there is only one country, the United States. Goodness knows what it might look like in a year.
Mr. Radwanski: There is a practical problem. The Americans have said they will not let our planes land or they will use harassing tactics if they do not get this.
Senator Oliver: Senator LaPierre dealt with that yesterday.
Mr. Radwanski: I am aware that it is a practical issue is all I am saying.
Senator Callbeck: To follow up on Senator Oliver's line of questioning, am I to understand that there are no effective safeguards there for the information that we supply the Americans? You mentioned that you have asked the minister to provide an undertaking. If the minister does not get an undertaking from the Americans, are you saying that the information that we give the United States could be passed on to other countries?
Mr. Radwanski: I do not know what would prevent it. The United States has presumably -
The Chairman: Is there anything in the American legislation?
Mr. Radwanski: I am not aware of any explicit restriction on that, particularly since the United States does have information-sharing agreements, as do we. They have intelligence-sharing agreements with countries it regards as allies, and certainly countries that are allies in this "war."
Let me put it this way. In discussions I had with officials of the Department of Transport, I asked about safeguards and the answer was that there were none.
My office has done this research. We certainly have not found any evidence of a safeguard that in a binding way would prevent the United States from doing anything it chooses with this information.
I suppose you could call the American ambassador and put that question to him. If there is such a safeguard, we have certainly not discovered it. That is the most I can tell you. My view is that there is not.
Senator Spivak: You stated, and I certainly have noted an increasing tendency in this respect, that there are general statements that are not in the law but in the regulations. This is happening more and more. It is almost to the point where there is legislation by regulation.
I realize that your office can comment, but we are talking about parliamentary involvement in decision making on legislation that is now regulation. What would you suggest is the remedy for that practice? I know that is not exactly what you are saying but you did make that statement.
Do you think that the reasons that initially prevented parliamentarians from amending regulations are now perhaps obsolete? It is a leading question.
Mr. Radwanski: That is an important question. I must be careful in my role not to go beyond my mandate as Privacy Commissioner. That is a discipline I have had to impose on myself since I took the position. Obviously, as a private citizen, as a student of public policy, I have many views on a great many things, but I should limit myself.
I am very much on record as being of the view that matters that touch on rights should be spelled out in legislation, not left to regulation. One example, if you will, is that I went to the point of accepting an invitation to testify before an Ontario legislative committee on their so-called health privacy law last winter. The main point I made was that the thing was unsalvageable and should be scrapped and rewritten because all of the important provisions that touched on health privacy rights were left up to regulation, which is to say ministerial fiat.
A principle that should be applied is that rights are to be infringed or limited it should be subject to full parliamentary debate and to this kind of process, not done by regulatory process, which can happen quickly without debate.
What can be done? It is ultimately up to the legislative process.
These are somewhat exceptional circumstances, given that this is really not our legislation; it is American legislation forced on us. This is a special case, and I do not want to say much more about that.
However, a committee like this or the Senate could simply, as a normal course of events, refuse to pass legislation unless its key provisions are explicit rather than left to regulation. As a general approach to our fundamental rights, and in my case to the right of privacy, I would welcome that. I would say put it in the law, debate it up front, have this kind of hearing, and if you are going to change it, ensure that you come back to Parliament, to the law-making authority, and have full debate. That is simply a good principle to apply when we are dealing with fundamental human rights of a kind that privacy is.
Senator Spivak: Let me say that, given your mandate, I consider that statement of profound importance. Think of the amount of legislation that touches on human rights. I welcome your statement. I really do for many reasons.
Let us say that Parliament does not have the right to change the legislation in the last analysis. I appreciate what you are saying about not passing the legislation unless what is in the regulations concerning human rights is in the legislation. However, should we at least require that those regulations be brought before Parliament when they are changed?
Mr. Radwanski: We are getting into the realm of political science that is beyond my appropriate range of comment. I do not know the regulations.
Senator Spivak: I will put the question a different way.
Mr. Radwanski: If I may finish the thought, senator.
Regulations by their nature are the prerogative of the Governor in Council. I am not sure that that can, as a matter of political science, be subject to parliamentary approval, or it is no longer regulations. That is something your experts would have to advise you on. I could not sit here and say that that should be done, because I would be getting into a realm that goes beyond my competence.
Senator Spivak: I appreciate that. However, you did say in your initial statement that regulations should be supervised. What I am really probing for is how should they be supervised?
Mr. Radwanski: If the government is willing to bring them forward to committees, that is great.
Senator Spivak: Should we operate by noblesse oblige?
Mr. Radwanski: My point is the more openness the better. I have not done an analysis on the various possible methodologies. In the first instance, matters that touch on rights should not be done by regulation, in principle. Where, for one reason or another, they are being so done, by whatever method is used, there should be enough visibility to propose regulations or changes to regulation, and there should be enough time between the making visible of such proposed regulations and their enactment for input and debate and that an office such as mine, for example, can provide its comments and, if need be, go public, as I do on many issues and try to rally public support. There are many ways that that could be done.
I do want to be careful about this specific issue. I wish to emphasize that this is somewhat unusual. I do not wish to appear to be critical of the minister in this case, simply because the American law provides that they can ask for any data elements they want.
If we were to pass that in law, and the Americans in the first week of January were to suddenly add three data elements, short of being able to mount the entire parliamentary process in a very short time, recall Parliament, have debate and so on, we could find ourselves in a jam where we are under the same threat as we were this time if the government is not able to quickly enough accede.
That is the circumstance that I find repugnant, but it is a fact of life in this case. On the general principle, I think we are on the same page.
Senator Spivak: I understand the reason for this bill and I do not even find a matter of great concern the kinds of information under Schedule 2. However, if there is a terrorist, those kinds of things are important, such as a one-way ticket, only if it would have the safeguard that you suggested.
Let me just clarify what it is you suggested might be a safeguard. There could be a bilateral treaty in which countries would agree not to share this information unless it was a matter of national safety. I do not know what you were exactly getting at, though I have some idea.
Mr. Radwanski: I am not sure it would be as formal as a bilateral treaty. I would like the Canadian government to be able to get an undertaking from the U.S. authorities that the information will be used within the U.S. only for purposes of security, will not be transferred to third parties like the commercial private sector and will not be transferred under information-sharing agreements to any third-party countries. That is the key safeguard in that respect.
Senator Spivak, I think you and I are in agreement that most of those data elements are not particularly privacy sensitive. The trouble is that those data elements are not a definitive list; any other data elements could be. Some of these could be, the address, the phone number, a credit card number. Even dietary preference, for instance, which is one of the data elements they were looking at previously, could lead to false inferences about religion or health. If someone has a low-sodium diet, for instance, is there an inference that the individual has heart trouble? What if the insurers get hold of that information? There are many instances that could arise.
[Translation]
Senator Lapierre: Minister Collenette has mentioned that high level officials were drafting or have begun to study with all the countries concerned an international protocol, which would allow or specify the questions to be asked, the information to be provided and the protection that would be afforded to those answers. Would you agree with that?
[English]
Mr. Radwanski: The difficulty with international agreements is that they can limit privacy and they can be negotiated to the lowest common denominator. It is not for me to be in favour of or against an international agreement.
I would certainly argue that in any such negotiation, our government should insist that only those data elements that are clearly necessary for security reasons could be included, that the list be as narrow as possible and that there be very clear safeguards, again, on the uses to which the information would be put and the locations to which it could go.
International agreements are not good or bad in themselves, any more than federal or provincial agreements. The issue is: What would the content be? One always worries in such negotiations about the importance of Canada taking a strong position that is consistent with our values rather than simply with some international consensus.
Senator LaPierre: I take that for granted.
Senator Callbeck: Following up on the question that I asked previously, as it stands now, once we give the Americans the information they can do what they like; in other words, they own the information; is that correct?
Mr. Radwanski: That is certainly my sense.
The Chairman: Thank you, Mr. Radwanski, for your presence here and the good advice that you have given us. Merry Christmas.
Honourable senators, is it agreed that the committee move to clause-by-clause consideration of Bill C-44?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed, honourable senators, that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Is it agreed, honourable senators, that this bill be reported to the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Oliver: I would move that with the report there be an explanation about the use of information that is collected under Schedules 1 and 2 along the lines suggested by the Privacy Commissioner, that we ask the minister or the department to somehow seek safeguards on the use of the information so that it will not in any way bring harm to Canadians. The Privacy Commissioner gave examples.
The Chairman: I was wondering if we could do that when we do the study on Bill C-42.
Senator Finestone: I wish to pursue the comments made by Senator Oliver.
The Chairman: I am not objecting to comments.
Senator Finestone: I believe it would be timely to do address this matter here, because this is where we saw the Privacy Commissioner and the minister in juxtaposition, firstly. I would like to add an observation to our report on two issues. The first is that all regulations be tabled for review with this committee.
The Chairman: Do we want to table the observation now, so that it can be studied tomorrow?
Senator Finestone: That would be fine with me.
It would be simple. There are two issues I want to address, and then we can see how and when you want to address them. The first issue is a review of all regulations pertinent to information requested and required by other countries with respect to the travelling Canadian public. The second issue is on the point that some form of protocol be undertaken to ensure that no sharing of information takes place beyond the three categories required, that is, protecting national security or public safety or for the purpose of defence.
The Chairman: We would review the regulations with respect to this bill in February.
Senator Finestone: Madam Chairman, I am not asking that we do this now.
Senator LaPierre: I have been told that any committee can ask that the regulations be presented to it; the regulations are public documents. Consequently, we can review them and we can send an observation at that at that time. I am not too sure that we need to do that at this moment.
Second, after the provisions that were mentioned by Senators Finestone and Oliver, if I understand correctly, it seems to me that Bill C-42 deals with many issues that are analogous to this. It is important for us to return this legislation as quickly as possible. January 19, 2002, is the deadline. We only have two or three more days to do it.
If one accepts what I just said about the resolutions, I would suggest that when we do address Bill C-42 we should state the things that we really want to state and suggest that they be applicable to Bill C-44 as well. I do not know whether that is possible. I have no experience.
Senator Oliver: First, my leader, Senator Lynch-Staunton, has said that he does not want to hold up this bill. There is no intention on this side to hold up the bill.
On the other hand, the issue of privacy as set forth by the Privacy Commissioner is one that concerns me. Senator Callbeck asked about it twice. Senator Finestone and Senator Spivak asked questions in that regard. It is an issue that a number of us have great concerns about.
It seems to me that if there were a way to include observations with the reporting of the bill it would help this committee discharge its obligation and duty. The evidence is overwhelming.
Senator Callbeck: How long would it take to get the observations together to have them translated?
The Chairman: Not long. Senator Oliver mentioned what he would like to see written in observations and presented to the chamber with the report. We would have to have it translated and attached to the report. We can make it short, just a short paragraph.
Would you agree to that, Senator Finestone?
Senator Finestone: That is what I was trying to support, just a three- or four-line article. You can take the words right out of the Privacy Commissioner's presentation. He made it eminently clear. It is very simple. You do not have to dream up the words.
The Chairman: If we do that, we will not be able to table it tonight.
Senator Oliver: Why?
Senator Finestone: Why?
Senator LaPierre: We cannot translate it in the next 10 minutes.
Senator Oliver: We have an hour left.
Mr. Michael Patrice, Clerk of the Committee: We have to format the document and then make copies. It may seem easy, but it cannot be done that quickly.
Senator Finestone: You can do that by Friday morning.
Mr. Patrice: It could be tabled tomorrow morning.
Senator Finestone: You are looking for four lines, and I can find them.
The Chairman: You have to format the observations.
Mr. Patrice: There is a process involved. There must be copies made for the chamber before being presented.
Senator Oliver: Could that which will be reported be tabled with the Senate on Thursday?
Mr. Patrice: That is possible. I am not talking about what is going on in the chamber.
Senator Oliver: My leader has said on the record that our side will not hold this up.
The Chairman: To guarantee that we can do both -
Senator Oliver: I cannot guarantee it; I am not the leader.
The Chairman: I knew that you would say that. Your persuasive powers are there.
If we could table it tomorrow morning or tomorrow afternoon, if we sit tomorrow afternoon, and proceed to third reading the same day. We must have third reading and vote on it. That is the main issue.
Senator Oliver: Are we sitting on Friday?
Senator LaPierre: There may be other Senate business. I propose that we proceed the way we are.
The Chairman: The observations make sense. They are very simple.
Senator LaPierre: Let us see what happens.
The Chairman: We will see what we can do.
Senator LaPierre: You are on the spot.
The Chairman: Our clerk will address that.
Would you repeat the observations so that we can have them accepted by the committee?
Mr. Joseph Dion, Parliamentary Researcher: The way I understood it from Senator Oliver, we would draft something saying that the committee approves the bill as written but asks the minister to seek safeguards with other countries that any data collected would not be used in ways that could cause harm to Canadian citizens.
The Chairman: Is that what you meant? Senators, are we all agreed on the observations?
Hon. Senators: Agreed.
The Chairman: Read through the item on safeguards so that we can make sure that everyone agrees.
Mr. Dion: The committee agrees with the legislation and reports the bill without amendment, but would ask the minister to seek safeguards that any data collected and supplied to a foreign government would not be used in ways that could cause harm to Canadian citizens. It could be added that this information would only be used for the three purposes stated in the amendment.
Senator Finestone: There should be no information sharing except under the three categories as listed within the bill.
The Chairman: Let us not complicate things.
Senator Finestone: The bill tells you what it is. It is third country, other institutions and other businesses. It is exactly what he said, because I wrote it down.
The Chairman: Are we agreed on that?
Hon. Senators: Agreed.
The Chairman: If we cannot table it tonight, we will table it tomorrow. Again, Senator Oliver, try to persuade your side.
Senator LaPierre: I would like to thank you very much for having guided the destiny of these two meetings with great strength and wisdom.
The Chairman: Before I leave I wish to tell Senator Finestone how much I have appreciated her cooperation and the magnificent she has done here in our committee. We will all miss you.
Senator Finestone: I would like the record to show that a very good chair has guided us. You have all been diligent and thank you very much.
The Chairman: I also want to thank the interpreters and the reporters.
The committee adjourned.