THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
OTTAWA, Tuesday, December 12, 2017
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts, met this day at 9:30 a.m. to give consideration to the bill; and, in camera, to study the regulatory and technical issues related to the deployment of connected and automated vehicles (consideration of a draft report and draft agenda -- future business).
Senator David Tkachuk (Chair) in the chair.
The Chair: Honourable senators, welcome. Today, we are examining Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts.
We are pleased to have appearing before us the Honourable Marc Garneau, Minister of Transport. He is accompanied by Helena Borges, Associate Deputy Minister; Brigitte Diogo, Director General, Rail Safety; and Alain Langlois, General Counsel and Deputy Executive Director. I would like to welcome you all to our meeting.
Before I begin, there has been a bit of a controversy and articles in the paper regarding the Senate stalling this bill. I understand, minister, that you are anxious to get this bill through the Senate, at least according to an article in iPolitics last Thursday. The headline was “Garneau urges Senate to pass stalled grain transportation bill.” In fact, you urged us to pass it before Christmas.
First, the Senate has not been stalling this bill. Second, it is much more than a grain transportation bill, as you well know. With regard to the first, this bill had first reading in the house in May 2017 and didn’t pass third reading until the end of October 2017, five months later. We have had it for little over a month, so to blame the Senate for not getting it passed by Christmas is audacious.
The truth is that most bills get stalled in the house and not the Senate. Senator McCoy, until recently leader of the Trudeau-appointed group of senators, has studied this issue carefully, surveying over 10 parliamentary sittings. What she found in that survey is that, on average, bills spend 109 days in the house and 35 days in the Senate.
The problem with this government is that it wants an independent Senate when necessary but not necessarily an independent Senate when that doesn’t suit its purposes. I cannot think of any time in recent memory when I have been so lobbied on a bill. There are concerns about interswitching provisions, joint venture clauses, foreign ownership, a passenger bill of rights and a host of other issues separate from the grain transportation issue.
Having said that, minister, I would like to say I am happy to have you here. As you know, when the bill was referred to us last Friday, I immediately instructed our clerk to invite you to appear today, our first meeting following that reference.
With that, minister, the floor is yours, sir.
Hon. Marc Garneau, P.C., M.P., Minister of Transport: Thank you very much, Mr. Chair.
I was going to launch into my speech, but I must make a comment with respect to your comment. The choice of the word “stalled” was not my word. However, yes, I do feel there is an urgency to this bill, and I am delighted to be here in front of the Senate to make the presentation and to answer your questions. I am delighted to have my fellow members of Transport Canada here with me.
Mr. Chair, I am very pleased to be here today to meet with the distinguished members of this committee to discuss Bill C-49, an Act to amend the Canada Transportation Act and other acts.
As you know, Canada is a vast country with a complex transportation system, and its performance is critical to the well-being of Canadians and our trade-dependent economy. Over the last year, the Canadian economy has been firing on all cylinders, significantly outperforming our G7 partners, including the United States.
In order for Canada’s economy to continue growing and thriving over the long term, it is important that we consider our transportation system as an integrated whole. This, however, is not easily done, given the competing pressures and interests that need to be carefully considered. Our challenge is to strike the right balance that will create and facilitate the conditions for the success of the many players involved in the transportation system. Two words you will hear me say repeatedly today are “fair” and “balanced”. This is precisely what we have done in Bill C-49.
This bill proposes several measures to strengthen the efficiency and safety of our transportation system to ensure that Canadians can take advantage of this economic growth.
The bill reflects the extensive consultations that my department and I conducted to hear the views of Canadians on the future of transportation. It also takes into account the recommendations of the Canadian Transportation Act Review Panel, led by the Honourable David Emerson, as well as recommendations from the House of Commons Standing Committee on Transport, Infrastructure and Communities on rail safety and rail freight, and the Transportation Safety Board on rail safety.
During September and October, the bill was carefully studied by the House of Commons Standing Committee on Transport, Infrastructure and Communities. The committee heard from over 80 witnesses from across the air, rail and marine sectors. I am delighted with the committee’s work and collaboration, which included adopting nine amendments in keeping with the spirit of maintaining a package of measures that are fair and balanced.
Moreover, I am delighted to be your first witness today, as your committee undertakes its important work of applying sober second thought to the consideration of this bill.
Nowhere is the need for balance more critical than in addressing the competing demands and pressures in the rail freight sector. Bill C-49 includes several measures to strengthen freight rail services. For many years, shippers have made clear the freight rail system requires the following: greater clarity on what “adequate and suitable rail service” means, more accessible and timely remedies on rates and services from the Canadian Transportation Agency, the ability to apply reciprocal penalties in service level agreements, competitive alternatives for captive shippers across Canada, the retention of the maximum revenue entitlement for grain and, finally, accessible information to support commercial negotiations and transparency.
Bill C-49 directly addresses all of these concerns. As many shippers and producers have acknowledged, Bill C-49 provides long-term solutions to continuous problems. If we had told stakeholders a year ago that they would have received all the measures that Bill C-49 proposes, they would have been ecstatic; in fact, many were ecstatic when the bill was introduced in the House of Commons. The Alberta Wheat Commission, for example, have described the legislation as:
. . . historic legislation that paves the way for permanent, long-term solutions to the rail transportation challenges that Canadian farmers have faced for decades.
While shippers strongly support this bill, we fully expect that some in this chamber will propose further amendments. I fully recognize it is their right to do so and that some will want some specific needs addressed. However, I have to stress again that this bill has been very carefully crafted and that these types of sector-specific changes risk disturbing the delicate balance that has been established in this bill.
As I noted earlier, Bill C-49 also contains important measures that would improve the safety of rail transportation in Canada. I am referring here to locomotive voice and video recorders or LVVRs. I have carefully taken note of the exchanges held at second reading in the Senate chamber. I am happy to discuss with you today the safety benefits and privacy safeguards contained in this measure.
Over the last several years, there have been over 30 deaths and 200 injuries in North America attributed to the derailment of passenger and freight trains where the investigations were inconclusive as to whether human factors contributed to the accident. Had locomotive voice and video recorders been installed in the locomotives of these trains, the information gathered could have been used to identify when human factors may have played a role. Equally important, LVVRs may also have provided information that would have led to measures been put in place to prevent future accidents and deaths. The measures in Bill C-49 will help us better understand the role of human factors. It would put into place the tools needed to help analyze the behaviour and actions leading up to a rail incident, and assist with developing subsequent preventative measures. This bill will protect the lives of train crews and Canadians and increase the safety of our railways, which is my top priority as Minister of Transport.
There is no question that there are privacy implications with the use of locomotive voice and video recorders, and that is why the legislation before you strictly limits the use and communication of the collected information. I have recently written to the railways outlining very clearly what the legislation stipulates and what my expectations are when it comes to safeguarding privacy. Copies of these letters have already been sent to senators, but I will also table copies today for the record of the committee.
Bill C-49 both improves safety and protects privacy rights. It is not about monitoring employees for day-to-day performance or facilitating disciplinary measures. Instead, it works hand-in-hand with existing privacy legislation to protect employees’ privacy. Subsequent regulations will be enforced and supplement these protections.
The proposed LVVR regime will also allow Transport Canada to conduct oversight and take enforcement action against companies who misuse the LVVR data. After many years of study, it is time to do the right thing and mandate the installation of locomotive voice and video recorders on board locomotives. The National Transportation Safety Board in the United States and the Transportation Safety Board of Canada recognized this as far back as 2012. This is why we must take action now to protect lives and enhance the safety of our rail system, which we believe this bill will do.
Let me now turn to the air provisions of Bill C-49.
Recent events around the world have demonstrated that Canada requires an effective air passenger rights regime. The European Union enacted passenger rights regulations in 2004, and the United States has full fully implemented its series of air passenger rules that were proposed in 2009 and 2011. Canada can no longer maintain the status quo, and I believe we need to take immediate action to become world leaders when it comes to air passengers’ rights.
Bill C-49 sets the framework for a new approach to air passenger rights that will be enshrined in regulations. The legislation identifies those situations where an air carrier’s obligations toward passengers will be regulated, specifically, as they relate to denial of boarding, including overbooking; delays and cancellations both within and outside a carrier’s control; tarmac delays; lost or damaged baggage; the assignment of seats to children and parents; and the transportation of musical instruments. Together, the legislation and regulations would create a strong air passenger rights regime for any traveller on any flight to, from or within Canada.
The regulatory process would be led by the Canadian Transportation Agency, with the support of Transport Canada, and it would ensure that Canadians and industry stakeholders have a voice through consultations. Utilizing regulations for air passenger rights would provide greater flexibility to make adjustments, should new issues emerge, while still having the force of law. The new regime would be mandatory and clearly prescribe the standards of treatment and compensation that must be provided to travellers when a violation has occurred. Canadians will have a better understanding of what their rights are in these situations, and air carriers will know exactly what obligations they must fulfill.
Bill C-49 also proposes to liberalize international ownership restrictions from 25 to 49 per cent of voting interests for Canadian air carriers, with accompanying safeguards, to provide Canadian carriers with access to more capital investment and Canadians with new options, including ultra-low-cost carriers and new destinations.
Canadian travellers will also benefit from joint ventures, which allow air carriers to collaborate on several aspects of operations for routes between given geographic regions. These are becoming more common throughout the world.
At present in Canada, a joint venture will be reviewed by the Competition Commissioner at any time after it has been implemented from the perspective of possible harm to competition under the Competition Act. As you will appreciate, this creates significant uncertainty for air carriers and has had the effect of discouraging joint ventures here in Canada.
Bill C-49 would establish a transparent and predictable assessment process, which would consider both competition as well as public interest considerations. While under this new process the Minister of Transport would be responsible for the final decision, the Commissioner of Competition would continue to be consulted on any proposed joint venture to ensure that an assessment of competition considerations would continue to be an essential element of any final decision.
Anticipated benefits would include a potential increase in tourism, more flight options and the creation of new jobs for Canadians. Canadian travellers would have access to more flights and more destinations, increasing their ability to travel internationally.
Air travel is an integral part of the transportation system and a major contributor to the Canadian economy. Airports are constantly looking for ways to improve and simplify the passenger experience. To meet this objective, Bill C-49 has introduced changes to the Canadian Air Transport Security Authority Act, or CATSA, that will establish a cost recovery mechanism so that airports can have added flexibility to improve their operations. Once in place, airports could enter into a cost recovery arrangement with CATSA for new or additional screening services that would maintain the security of the air transportation system.
Finally, the proposed amendments to the Coasting Trade Act would allow vessels of any registry to reposition empty containers that they own or lease between ports in Canada without obtaining a coasting trade licence. This amendment is expected to address the current shortage of containers available for export and help alleviate some of the strains on the surface transportation system as they are currently repositioned by rail or truck within Canada. This change is expected to enhance the efficiency of Canada’s supply chain and the benefit of Canadian companies and consumers alike.
Let me conclude by restating that proposals contained in Bill C-49 achieve a balanced and fair approach to support long-term efficiency and investment in our transportation system. Ultimately, we need the system to meet the demands of today’s and tomorrow’s economy so that we can keep Canada’s travellers and cargo moving efficiently and safely. Passage of this bill as soon as possible would represent a critical milestone in achieving tangible improvements to our national transportation system that will benefit Canadians for decades to come.
I now look forward to taking your questions, but I realize that following testimony by other witnesses, you may have additional questions. If that is the case, I would like to offer to reappear prior to clause-by-clause to offer supplementary comments, if you wish. Thank you, and I am now ready to answer your questions.
The Chair: Thank you very much for that offer, minister. I have a vast list of questioners here, so we will begin.
Senator Plett: I won’t even ask if I can go on a second round. I will try to get my questions asked in a timely manner.
Minister, thank you for being here. I am sure you know what my questions will be about. They are around grain transportation, specifically interswitching.
The current wording in proposed subsection 129(1) has to do with giving a shipper access to the nearest competing rail line, but this would be of little to no value if the nearest interswitch takes traffic in the wrong direction of the shipment’s final destination, if the nearest interchange does not have the capacity to take on the size of the shipment or if the nearest competing rail company does not have rail lines running the full distance to the shipment’s final destination.
Bill C-49 stipulates in proposed paragraph 129(3)(a) that a shipper may not obtain a long-haul interswitch if a competing rail line is within a distance of 30 kilometres. Sending a shipment in the wrong direction is cost-prohibitive, which makes the interswitch in that case useless.
You have said already in your comments that there will probably be people who support the bill and acknowledge that they may want to make some changes. I know these concerns have been raised with your department, with a possible proposed solution being to add the wording:
. . . in the reasonable direction of the traffic and its destination . . . .
— to both sections. This language already exists in the legislation in 136.1 for other purposes and could easily be applied here.
Minister, would you be amenable to such an amendment? If not, what is your rationale?
Mr. Garneau: Recalling my speech, one of the things I mentioned was that this bill has been crafted to be fair and balanced. There are a great many steps that have been taken with respect to shipper demands, and I enumerated them during my speech.
With respect to LHI specifically, there has been a requirement for a long time to address the issue of captive shippers. Captive shippers are, in some cases, grain farmers, but in many cases they are shippers of other commodities that are located in sometimes remote parts of the country but that contribute in an important manner to the economy of this country, whether in the forest industry or the mining industry. When I say “captive shippers,” I mean that they are captive to one single line.
It was felt absolutely essential that we re-examine the concept of interswitching to allow a greater level of competition for these captive shippers. As I said, that includes grain farmers. That is why the LHI measures go out to 1,200 kilometres and apply in all provinces and to all commodities. It is 1,200 kilometres or 50 per cent of total trajectory, whichever is greater.
We believe that these measures, over time, when they are actually used, will turn out to be advantageous for the vast majority of shippers in this country of different commodities. That is what motivated us to come forward with the concept of long-haul interswitching.
Senator Plett: You say “the vast majority” when you could easily have made a small change and it probably would include almost 100 per cent.
I was the proud sponsor of Bill C-30, the Fair Rail for Grain Farmers Act, in our government. You extended that, agreeing that it was a good bill at the time.
Because interswitching provisions are so time-sensitive — and you’ve spoken to me and others about the time-sensitive issue, especially as far as grain farmers are concerned — why did the government not make these changes through regulations? Why are they being thrown into an omnibus bill with so many other controversial provisions? If this had been a bill solely about interswitching, the Senate could easily have had this examined and passed in a timely manner, but it would be absurd to assume that we would be able to get through a bill that amends, as Senator Mercer said the other day in the chamber “13 acts of Parliament in a few days.”
Minister, what is the rationale for jeopardizing the timely passage of these important interswitching provisions by lumping them into an omnibus bill? Why didn’t you either bring in a separate bill for the grain farmers or simply extend Bill C-30 so we could give this some timely consideration and not be jeopardizing the shipments our farmers are anxious to get out there?
Mr. Garneau: You have touched upon two points here. Bill C-30, the Fair Rail for Grain Farmers Act, was always intended to be an interim bill. It was brought in as a result of the situation that existed in that famous winter of 2013-14. It was intended as a temporary bill and had a number of measures within it but, unfortunately, the previous government did not address the issue of a long-term solution. Our government decided the time had come to address this with a long-term solution that would fix problems that had existed for decades. Again, unfortunately, that job was not done by the previous government. We decided to undertake it, after massive amounts of consultation.
With respect to the omnibus nature of the bill, this is a bill whereby 90 per cent of the amendments being proposed in this bill relate to one act, the Canada Transportation Act. Yes, it is a big act, but 90 per cent of what is in here relates to that. Several other acts will have consequential amendments as a result of it.
As you know, I have come out with my vision document for all of transportation, Transportation 2030. I have a responsibility to address a whole host of transportation issues. Moreover, as you know, David Emerson did his Canada Transportation Act review. He worked hard with four other people and came up with 60 recommendations. Some of those recommendations will be coming. In addition to having four acts that I am also sponsoring that will come your way next year, there is a great deal of work to be done in transportation.
However, again, these are immediate requirements, 90 per cent of which are amendments to a single act. It does not make any sense to split this into a whole bunch of separate pieces of legislation. We will never get anything accomplished in terms of all of the objectives we have to accomplish. As I say, 90 per cent of them deal with the Canada Transportation Act. That is the reason we decided to present this as one act.
It is our hope that it will be in place in an expeditious manner after the Senate has considered it and decided what to do, so that it will fill a gap I know grain farmers and shippers are anxiously awaiting, to fill the vacuum left by the fact that Bill C-30 expired on August 1.
Senator Plett: Would you be amendable to the amendment that I’ve suggested?
Mr. Garneau: I would not be amenable to it because we have in place measures that will take care of the situation, I think for decades to come, and the more important priority is to deal with this new bill and this new legislation as quickly as possible.
Senator Bovey: Thank you, minister, for being with us. I am going to change the channel to video cameras, if I may.
Mr. Garneau: Sure.
Senator Bovey: I very much appreciate that you recognize the balance between safety and privacy, and I think everybody is certainly concerned about safety issues, especially in light of some of the instances that have happened in the last few years.
I understand that railways in Britain have the video recorders in the cabs of the locomotives. I am concerned about the privacy aspect of it. As you talk about the balance through the bill, balancing safety and privacy, I wonder, Mr. Minister, if you would be amenable to an amendment that would really tighten that balance and make it clearer in the legislation that the use of the material gathered from the video cameras can only go to the Transportation Safety Board.
Mr. Garneau: I would welcome the opportunity to respond to this question, but I want to be clear that Bill C-49 clearly makes LVVR data privileged information under the Transportation Safety Board Act, and this means that, by law, it cannot be communicated or used for any purposes other than those authorized by law, including accident investigation by the TSB. Bill C-49 expressly forbids the use of the data for disciplinary measures other than to address a threat to safety. With respect to privacy, we will have in place very robust measures to ensure the privacy of the employees is respected. I can expand is on that if you wish.
However, I want to point out something, because I want to make sure that that the context in which we are implementing this is fully understood. As you know, the Transportation Safety Board has been asking since 2003 that we put locomotive video and voice recorders in our locomotives. Why? Because they feel this is extremely important to ensure the safety of our railway system, whether it’s passenger or freight.
You have probably heard me say a thousand times how rail safety is my number one priority. I certainly say it at every opportunity in the House of Commons. In 2016, there were 1,035 rail incidents reported to the TSB. This is in 2016. You may not hear about it, but I hear about it every single day through our situation centre, control centre, where we hear about every incident that occurs. Many of them occur in yards and are minor in nature in the sense that no lives are lost or no damage is done, although sometimes that does happen as well. But that is a very large number. I feel very strongly that our rail system is not safe enough in this country.
It’s not just because I’m motivated by what happened in Lac-Mégantic or other places like Gogama. Freight trains accounted for about 32 per cent of all trains involved in rail accidents or incidents in 2016, and about 6 per cent occurred with passenger trains. In 2016, there were five main track collisions — far too many in my opinion — and a total of 63 main track derailments occurred. There are a lot of derailments unfortunately in this country, sometimes with severe consequences. In 2016, there were 10 main track derailments involving dangerous goods. There are a lot of dangerous goods carried, as you know, senator, across our country. It’s part of our economy. Action-related factors, which is the TSB's euphemism for human factors, accounted for 30 per cent of assigned factors in 2016 compared to 19 per cent for the five-year average. This is the TSB telling us this.
The TSB put the need for LVVR on our trains on their watch list. I don’t know if you know what the watch list is, but the TSB has their top 10, and when they put it on the watch list, it means these are the top 10 concerns that they have with respect to safety. We all respect their enormous professionalism and the work that they do. For that reason, it has to be taken very seriously. They asked for it in 2003. Finally, in 2014, they said, “We are putting it on our watch list because you need to take action.” That is what we have done.
Now, we are cognizant of the fact that there are two considerations that must be uppermost in our mind. The first is to ensure that privacy will be respected. The second is that when these video voice recordings are examined — I’m talking about when the TSB decides they are not going to investigate, because 97 per cent of incidents and accidents that are reported to them are not investigated by them, and yet we need to look at them — these will not be usable for disciplinary purposes.
I believe that we have, in the way we have crafted this bill and the regulations that will follow, addressed both of those concerns.
Senator Bovey: May I ask one quick follow up?
The Chair: That was a long —
Mr. Garneau: Well, there is some background. It’s my fault; I’m sorry for talking so much.
The Chair: I’m not blaming anybody. It’s a complicated issue, as we all know. Go ahead, Senator Bovey.
Senator Bovey: Are the regulations in draft form now?
Mr. Garneau: No, they are not. First of all, we need to pass this bill. Second, we know how we’re going to craft them.
Let me say one other thing about regulations, which is different from legislation. When legislation is adopted by yourselves and it gets Royal Assent, it’s the law. Regulations have every bit as much power in terms of the law but have one additional benefit. They go through the gazetting process. They go through Canada Gazette I. There is extensive opportunity for comment on the proposed regulations before they become the regulations in Canada,Gazette II. We think that’s an additional advantage. When you see the regulations, if you have concerns about them, you are able to voice those concerns.
The Chair: We are hoping these committee hearings will be the regulation process for this bill.
Senator Dawson: First, I would like to welcome you. I see that you are well accompanied. Under the former chair of this committee, debates did not attract as many spectators. I must congratulate the new chair for having triggered such attendance.
First of all, I’d like to address the notion of urgency. We hear that the bill should be passed before Christmas and that it should come into effect before winter. Bad news: Bill C-49 will not be your Christmas gift this year. We are going to have to set another deadline. What are the most important milestones? I can name one. For instance, under the previous government, there were five ministers of Transport over eight years, for an average of a year and a half per minister. So you have already gone beyond your time.
I think it is important that we adopt the bill. I made a speech in the House on the importance of the bill, and I am more than happy to see that witnesses are going to appear and that we will be able to ask all our questions. The reality is that this measure is long overdue. These are objectives that previous governments also had. Ms. Borges and Mr. Langlois have been here for at least 10 years.
Senator Tkachuk, Senator Mercer and I have been on this committee long enough to know. We have seen five or six or seven ministers over the last 10 years. I think it’s urgent. But what now? Since it’s not Christmas, it’s not winter — I want to have as many witnesses as we can. What would be a reasonable delay for accepting this bill?
Mr. Garneau: The only answer I can give you is as soon as possible after you have done your work. Needless to say, there is a host of stakeholders out there waiting for it. They will tell you in some cases that they would love to see it right away. You must do your work, but there are stakeholders in the grain farmer and shipping community. This year turns out to be a good year for grain. Stats Canada showed us that it’s better than last year, and last year was a very good year. They are anxious to have the new rules in place. I’m talking about things like reciprocal penalties and definitions of “adequate and suitable service” — those kinds of things, the greater transparency that this bill will bring. There are a whole host of things.
I will even tell you that, because of the provisions of maintaining the MRE but loosening it up, the railways are thinking of making some investments in rolling stock. That is extremely good news, because this has the potential of being good for the united steel workers in this country, who could have a chance to participate in these things.
In terms of the passenger bill of rights, there are a lot of Canadians who are hoping to see this in place as soon as possible. Of course, the CTA will have to do its work if this bill gets Royal Assent. They are anxious to see this as soon as possible.
The start-up companies that may decide to come forward with an ultra-low-cost carrier in this country, now that the foreign investment ceiling is at 49 per cent, could decide to come in as soon as that becomes legislation. Those who want to improve the safety of our railways — and that’s me — would like to see the provisions related to LVVR put in place. Some airports will avail themselves of the measures that are offered with respect to additional CATSA facilities so they can reduce waiting times in airports.
I would say there are a lot of stakeholders out there that are anxious to see it as soon as possible, after you have done your work.
Senator Dawson: Like Senator Tkachuk, I have also been lobbied much more than I have ever been in the past. Having been a former lobbyist myself, I know what that’s about.
I have a technical question that was debated when I was briefed. It’s about an accident in Burlington where the LVVR became helpful. Can you elaborate on that accident? Why does security transport think it’s important to have LVVRs?
Mr. Garneau: That is an accident, unfortunately. It was a VIA Rail service. This train, for reasons unknown, derailed. It was going at a certain speed and derailed, and the three VIA Rail employees who were in the locomotive all died and 45 people were injured. There was fuel spillage. There were a number of things. We believe this is certainly a good example where, if LVVR had been in the locomotive, we would have understood what actually happened. There were three of them in the locomotive, and yet they disregarded the signals in front of them, with tragic consequences.
That is an example. I mentioned in my speech a number of other deaths that have occurred where we haven’t been able to establish the cause. The TSB has not been able to. The presence in the cab of an LVVR would have helped us not only to understand what happened there but perhaps take measures that would minimize similar incidents occurring in the future.
Senator MacDonald: Thank you, minister, for being here today. I would like to go back to the question regarding LVVRs. I think I have made it fairly clear in the last few weeks that I consider privacy to be a very important element in this debate. The introduction of an LVVR into a locomotive cab is something completely new in Canada. We all travel a lot. I certainly travel a lot. I fly a lot. Why would video recording be necessary in the cab of a locomotive and not in the cockpit of an airplane?
Mr. Garneau: There are many cases in the working world where video cameras are used — increasingly more and more. If you are a bank teller, you are under observation at all times. There are many other examples I could cite. Video is a tool that, in the case of something going wrong, can help to understand what might have caused the accident, incident or the event to happen.
With respect to passenger airlines, there is a voice cockpit recorder. There is no video. But you have to understand two things: one is that the passenger requirement for an event and voice cockpit recorder comes under ICAO, the International Civil Aviation Organization. By the way, there is a similar one in the International Maritime Organization for the bridges of ships where there is a requirement for that.
How does it differ? It differs in a very significant way. When you are on a passenger airline, crossing the ocean or flying over Canada, you are continuously monitored by air traffic control. They know where you are at all times. They direct you. That is a dimension that definitely does not exist within the world of railway operations. That and the voice recorder are two extremely important pieces of information that allow us to recreate incidents. When there have been accidents, there has never been an issue with incomplete information with respect to aircraft incidents.
In the case of trains, unfortunately, the picture is much less complete, and it is important for us to have that complete picture. That is why the TSB, and the NTSB in the United States, have recommended voice and video recorders.
Senator MacDonald: Mr. Minister, with respect, I don’t really think you answered the question. It’s important that somebody knows where an airplane is all the time, but it doesn’t necessarily make it safer in the sky or in the cockpit.
Again, in your remarks, you mentioned there is no question there are privacy implications with the use of locomotive voice and video recorders. You later say that it works hand in hand with existing privacy legislation to protect employees' privacy. Then you later said that the proposed LVVR regime will also allow Transport Canada to conduct oversight and take enforcement action against companies that misuse the LVVR data. It seems like even in your remarks, you were telegraphing that there will be an opportunity to misuse this data and to apply it to blue-collar workers in the workplace. If you put a camera in somebody’s face or over their shoulder, it is hard for me to think you are protecting their privacy. I believe the only way to protect privacy is to observe it.
I go back to the question: If a voice cockpit recorder is adequate in an airplane, with a black box, why wouldn’t the same technology be adequate in the cab of a locomotive?
Mr. Garneau: Because we need to have the complete picture of the situation. I’m going to pass this to my Associate Deputy Minister, but at the moment, we do not have that picture. When we’re talking about a train that is 10,000 feet long and filled with dangerous materials, it is important that we have a full picture of the situation. That is why the Transportation Safety Board has recommended that we need to have LVVRs in our trains.
With respect to the protection of the data, as you know, that data is not broadcast out of the train. It stays in the black box in the train. It’s encrypted data, as well, and it can only be used under very specific, prescribed conditions: Either there is an incident or an accident and the TSB decides to investigate; or the TSB decides not to investigate but it has been reported to them that this incident has occurred, and there are very prescribed conditions under which that will be examined.
You would want us to be as safe as possible on our railway system.
Senator MacDonald: Of course.
Mr. Garneau: I certainly want to be as safe as possible. But I am totally, 100 per cent satisfied.
Why are we putting in a threat of a $250,000 fine? We want to send a very strong signal. It’s not because we’re afraid that it’s going to happen. It’s because we’re sending a strong signal to anybody who would think of misusing the data.
Another reason is that in order to improve our safety management system, we allow random segments to be looked at. The important word here is “random.” That is not chosen by the railways. It’s truly a random process so that no individual can be picked on. And secondly, we have a mechanism for monitoring that this respect of privacy and respect of the non-use for disciplinary purposes will be fully addressed.
I’ll turn it over to my associate deputy minister to expand.
Helena Borges, Associate Deputy Minister, Transport Canada: I’ll expand a little bit on the air sector. In addition to what the minister mentioned, there’s a black box and there is air traffic control controlling the pilot everywhere they are going. We require cockpit voice recorders through a complimentary bill to the Railway Safety Act called the Aeronautics Act and its regulations. In fact, the regime that we have in air does not put in the safeguards that the minister just elaborated on, which are there in the amendments that are proposed under Bill C-49 and would be there under the Railway Safety act.
Today, a company under the Aeronautics Act has no restrictions on how it uses that data. Airlines of different types mostly use it for post-accident investigation, but some of the smaller companies that are actually deploying this on a voluntary basis are using it for air accident avoidance training, for preventing maintenance and things like that.
The other thing I would note is that this is coming to an aircraft near you. The International Civil Aviation Organization is now considering imposing video recorders in cockpits by 2030. The discussions have already been initiated at ICAO, and the member countries of this organization are now considering how they will make this mandatory by 2023.
In the marine sector, it’s pretty much the same thing. The voice and video recorders are required by legislation here in Canada, which builds on the international convention under the International Maritime Organization. And again, there are no safeguards in that legislation in terms of how the data is to be protected, yet that data is not misused. People are using it for maintenance and accident avoidance. They are using it for training purposes.
We have gone out of our way in this bill to make sure that robust protections and safeguards are there for how the data can be accessed and used, how it must be encrypted and the features of how it will be installed in the locomotive so that nobody has access to it frivolously. We think this is a very robust regime — significantly more robust than what exists today in aviation and marine.
Senator Mercer: Thank you for being here. I have a bunch of issues with this bill. I am concerned about the things that aren’t in the bill, especially the things that you say are in the bill, for example, the passenger bill of rights. It’s talked about all the time and people feel comfortable with it, but it’s not there. It’s a promise for regulation in the future. If you are talking about it being in, why isn’t it there? You talked about the fair rail for grain with Senator Plett, and why isn't that separate as well?
With respect to grain shipments and the sudden urgency, you talked about the reports on this year’s crops. Those statistics became available last week, and you expect the Senate to — and then when we ask government if we can split the bill so we can deal with that quickly, the answer is “no” because you want it all in this omnibus bill.
Now, let’s continue the discussion on the LVVR for a brief moment. In your own briefing documents, which I have in front of me, it says “companies will be able to use recordings to conduct analysis in order to identify safety concerns as part of the ongoing safety management through random sampling and to determine the cause of a reportable accident incident not being investigated by the Transportation Safety Board.”
Minister, your letter to the presidents of two railways was a nice letter; we were all happy to read it. But I would suggest that it wouldn’t stand up in court if it was challenged because it’s not in the legislation. You didn’t put it in the legislation. You didn’t say it in the legislation. After it became controversial, you wrote these letters to the presidents of the railways. But then in your briefing document, you tell me that the company is going to have access to these and can use the recordings to conduct analysis in order to identify safety concerns, and they can do random sampling. How does that protect the privacy of the workers? And if the company is doing that, there needs to be a guarantee that it’s not being used for disciplinary measures. Certainly sometimes mistakes happen, but not every mistake warrants discipline from the company but it does require some management of the safety issues.
I’m going to stop on that one. I have one more question, chair.
Mr. Garneau: I’m going to bring in my colleague from the legal side, but you started off with a number of comments. I have never, ever said that the bill of passenger rights is contained in the legislation. I have never, ever said that.
Senator Mercer: The perception is out there, minister.
Mr. Garneau: The perception is out there because it has been created by the media that this will address the issue of a bill of rights. Now, anybody who has read the bill knows that the bill mandates the Canadian Transportation Agency to produce it. That has always been the case, and I have explained it a million times, but the perception is out there.
Senator, you’re on this committee. I expect that you know what is in the bill, and the fact that you’re telling me that I have created this perception is frankly a little surprising. We decided to take the approach that we took because we feel it is better for the Canadian Transportation Agency to come up with a set of regulations and, over time, should we decide to amend it in any way to make it even better for passengers, we will have flexibility with respect to that. It is flexibility that is not there to the same extent when you legislate the bill.
Unfortunately, certain organizations in this country have found it advantageous to perpetuate the myth that there is nothing there about the bill of rights. There was never supposed to be anything about the bill of rights. The bill of rights will be produced by the Canadian Transportation Agency, exactly the way we prescribed it.
On the issue of having many items in this bill, the omnibus nature of the bill, I believe I addressed that when I answered Senator Plett.
In terms of crops, we receive on a weekly basis, from various different organizations and the railways, the information related to the crops. I brought up the fact that Statistics Canada had come up with the statistics a week or two ago, saying that the crops in their measurement are superior to what had been predicted. I was just providing additional information. In the end, it’s neither here nor there in terms of how expeditiously we deal with this bill, but we need to, as efficiently as possible, move the crops in this country.
On LVVR, the issue that you brought up about writing to the presidents of CN and CP was all fine and dandy but didn’t have any force, it wasn’t intended to have force. It was intended to let them know exactly what our thinking was with respect to it. What will have force will be the regulations.
Alain Langlois, General Counsel and Deputy Executive Director, Transport Canada: On the issue of whether or not the restriction and the nature of the privilege of the information is in law versus the letter, the amendments that are made to the Canadian Transportation Accident Investigation and Safety Board Act in this bill will clarify, in clear words, that LVVR data, once collected by railways, is privileged. It is privileged to the TSB and privileged by law. The only exceptions that are authorized are those that are specifically expressly set out in the Railway Safety Act, so in order to determine whether or not a use is authorized by law, we need to return to the Railway Safety Act and then look at what uses are specifically authorized by this act. Under the Railway Safety Act, as the minister pointed out in his opening remarks, there are only two potential uses: accident investigation for those accident investigations that the TSB does not investigate and for the purpose of doing analysis for safety management system purposes. Any use beyond those two specifically authorized purposes — and obviously to address a threat — under the Railway Safety Act will be unlawful use by companies or whoever is purporting to use the information.
Senator MacDonald: With respect to the passenger bill of rights — and you are quite correct, minister, it wasn’t supposed to be in the bill; it’s not in the bill — I think it can be referred to more accurately as a promissory note at the moment as opposed to a bill of rights. However, one of the things indicated was the acceptable time on the tarmac will be increased from 90 minutes to three hours. I am curious, since the bill hasn’t been put together yet, why this has been agreed to and what the rationale is for it.
Mr. Garneau: Specifically on the issue of tarmacs, the perception out there is that the rule is now 90 minutes and we are putting it at three hours. The reality is that there is no rule at the moment, and certain airlines in their tariff — that is, their contract with the passenger — have said they will make it 90 minutes. If they want to continue doing that, that is fine with us. From our point of view — and we are falling in line with other countries on this one — we believe that three hours is the limit. During that time, there is a requirement for a standard of service with respect to providing information, food, water, air conditioning and toilet facilities. After three hours, there must be deplaning; otherwise there is a violation of the rule. We chose three hours — and you being a flyer will know this — because sometimes you are in a situation where you are in a holding pattern because of weather or traffic or some other problem. We feel at some point it is reasonable to say no, you have to let the passengers off. We came to three hours. That is actually falling in line with a lot of other countries.
It also allows me to tell you that I hope people will wait to see the whole bill before they judge it. People are cherry-picking individual things and not getting a realistic picture of the full bill. I believe Canadians will be pleased with the passenger bill of rights when they see it in its entirety.
Senator Mercer: Perhaps it should be in the bill, minister; then we wouldn’t have the controversy. I also think that it should be the responsibility of the airport to take and control the health and safety of the passengers on those planes sitting on the tarmac. If the airline won’t do it, the airport should.
My question is with respect to interswitching. In early 2014, railway interswitching distances were extended to 160 kilometres from 30 kilometres. Bill C-49 proposes the expansion of the current interswitching mechanisms to include long-haul routes up to 1,200 kilometres. Does the government know what the impact will be on railways? Does it open up Canadian sovereignty over shipping? The contention is that going to this distance will allow American railways to come into Canada, scoop up some business — not ship it off to our ports but take it south of the border and ship it to American ports. Number one, they have taken our rail business; number two, they will take our port business in shipping; and at the same time they will take a bit of our reputation of our ability to do the job.
I am curious about this, and I question the timing because here we are, in the middle of renegotiation of NAFTA, changing the regulation which will give away some of our business. Without even negotiating it, we are just putting it in the bill and there you go. I am puzzled, minister. Why wouldn’t we protect Canadian businesses, sovereignty and jobs, especially when we are dealing with a tough American government renegotiating NAFTA?
Mr. Garneau: Again, the reason the bill of rights is not in this legislation is because we want to do it through regulation. I don’t know how many times I have to say it, senator, but that is the case.
Second, I do agree with you on airports having a role to play in the case of tarmac delays because, obviously, when there is a tarmac delay that reaches three hours, that airplane has to allow deplaning. Therefore, there has to be coordination with the airport so that they have a gate to go to. So, yes, there is a requirement from an airport point of view.
With respect to long-haul interswitching and your claim that we are going to give American railways more advantage to the detriment of Canadian railways, I would say this: We are not actually changing anything with respect to that. Actually, we are making it a bit more difficult for U.S. railways. If you understand the whole nature of the LHI, it is actually less good for them. U.S. railways in Canada have maybe 1,000 kilometres of rail. It may surprise you to know that Canadian railroads have 17,000 kilometres of railway in the United States. I wouldn’t feel too sorry for our railways on this particular issue. By the way, with LHI, they will be compensated in a fair manner. That is part of the legislation here. It is not at cost but in a fair manner determined by the Canadian Transportation Agency when they are subject to LHI. Again, this is a complex but exquisitely balanced piece of legislation. To answer your question about U.S. railways, no, we are not opening the floodgate for U.S. railways.
Ms. Borges: As the minister said, this is actually an improvement over what was done with Bill C-30. In Bill C-30, with extended interswitching which went for 160 kilometres, that was easily available to the U.S. railways, particularly in the Prairie provinces at which it was aimed, and that was the problem with that mechanism in Bill C-30, namely, that the beneficiaries of that was one American railway that was going up into the 100 to 130 kilometres that were allowed and picking up a lot of the traffic that otherwise would have been moved by CN and CP. We have corrected that under this bill and extended it for captive shippers that are a further distance. So this is an improvement.
Senator Gagné: There is one point I’d like to clear up, and I have one question. I’d like to go back to the question asked by Senator MacDonald. In your reply, you mentioned that bank tellers are monitored at all times. Would you agree that the privacy requirements are greater for locomotive engineers? They spend between 12 and 18 hours a day in their cubicles. They use this space to change, eat and take their breaks. Could you comment on this point and the fact that the situation in their case is a little different?
Mr. Garneau: As I mentioned, we must understand that even if there is an LVVR on board, the information is not transmitted to a control centre. It is just kept in the box, and in the vast majority of cases, will not be seen by anyone. It will only be used if an incident occurs. That is an important clarification.
Secondly, I’d like to go back to the statistics I mentioned. More than 1,000 incidents were reported. I am talking about derailments, sometimes on main lines involving dangerous substances. Certain trains today are longer than 10,000 feet, or almost two miles. It is absolutely essential that we improve the safety of our rail transport system in this country. That is why the Transportation Safety Board has been urging us to do so since 2003. It is unavoidable.
Senator Gagné: The privacy issue is nevertheless important. We have to recognize that.
Mr. Garneau: We are very sensitive to that issue.
Senator Gagné: Bill C-49 would have the Canadian Transportation Safety Board adopt new regulations on passenger rights. However, there is no mention of passengers’ linguistic rights.
One of the recommendations in David Emerson’s report, among others, was that Canada improve consumer protection for airline passengers, and I quote:
[by] clarifying the obligations of airports and airlines to provide service in both official languages, and working with industry and official language minority communities to improve consistency; 
We know that Air Canada, which is the only airline subject to the Official Languages Act, has been severely criticized by the Commissioner of Official Languages.
We also know that it is often difficult to travel in the official language of one’s choice in several of the country’s large airports.
Can you explain why the bill says nothing about passengers’ linguistic rights? Do you expect the Canadian Transportation Agency to put in place regulations that will extend and clarify the linguistic rights of passengers? Could those regulations also apply to other transportation hubs, such as airports?
Mr. Garneau: You have summarized the situation very well. For the moment, this is not included in the bill. I have mentioned that certain aspects will be clarified.
As my colleague has just told me, the reality is that official languages obligations come under Canada’s Official Languages Act, which is not the responsibility of the Department of Transport, but, as you know, of Canadian Heritage.
Yes, it is an issue for some people, and the example of Air Canada that you quoted comes under an act drafted in 1987, and the Commissioner of Official Languages keeps referring to it. There are improvements to be made, because Air Canada must respect this legislation.
For now, the Air Travellers Security Charge Declaration states that if you have paid for a ticket to go from point A to point B, airlines have contractual obligations towards you, and we want to make sure that you understand them well. When it is within the control of the authorities that I mentioned, these obligations must be met. If they are not, there will be fines. We focused on overbooking, some forms of delays, loss of luggage, damage to musical instruments, and the fact that airlines do not have the right to separate children from parents.
Could something else have been included? Possibly. However, this is primarily under the Official Languages Act, so we decided not to intervene.
Senator Gagné: So the language rights of travellers weren’t taken into consideration?
Mr. Garneau: No, but it can be approached from another angle by another department.
The Chair: So I understand, when Senator Gagné asked the question about the privacy issues, changing and all the rest of it, you said the video will not be seen by anyone. What do you mean by that? Do you mean it will be deleted if there is no incident, or will there be a bunch of people in an office having a look?
Mr. Garneau: If the device is installed in the train, the voice and video in that locomotive in the front compartment will be recorded. It will be in an encrypted form, it will be recorded and it will stay in the device. It doesn’t get retransmitted to CN or CP headquarters; it stays there.
The Chair: Does it stay as a historical document, or is that end of the trip?
Mr. Garneau: No, at some point it’s overwritten. If an accident occurs, of course, then you will look at the data. It is like a black box.
There are occasions when there will be randomized checks. As you know, transportation systems have what we call the “safety management system.” This is a method for them to monitor that they are conforming and putting a high priority on safety. Occasionally, randomized segments will be allowed, and this will all be pre-cleared, but it will be random and for a very specific purpose. If they suspect there is a problem happening with respect to safety, they can look at it. The segment itself will be known, the people who will have access to look at that data will be known, and we will monitor how the data is used. If there is any hint that there is any violation of privacy or use for disciplinary purposes, then that will be dealt with because it’s not allowed. It is illegal.
Senator Cormier: Good morning, Mr. Minister. I am pleased to meet you in this context.
I would like to further explore the question that Senator Gagné asked about language rights. You said that these rights come under the Official Language Act and the Department of Canadian Heritage.
I know that every department has a responsibility when it comes to official languages. It does not depend solely on Canadian Heritage. How does your department work with the Department of Canadian Heritage to ensure that language rights are included in regulations so that Canadians have equal access to transportation?
Mr. Garneau: The obligation currently exists for Air Canada. It is under the Air Canada Public Participation Act. When the federal government decided it was going to separate from Air Canada, it said: You are now a private company. Go forth and prosper.
Unfortunately, they left some strings attached. They had obligations relating to maintenance that had to be done in Montreal, Winnipeg, and in Ontario. They told Air Canada that it had to respect the official languages. This is one of the bills that the government has made by keeping one hand attached, in a sense, to Air Canada. However, the legislation is there, and they have an obligation to respect it…
The Chair: Isn’t the headquarters where they have to stay in Montreal?
Mr. Garneau: I guess that was under Prime Minister Mulroney.
The Chair: I know.
Mr. Garneau: So, they have the obligation. Of course, it would be nice to offer all our services in both official languages. As you know, the major airlines have a recording that gives the French. This is a file I work on with the Minister of Canadian Heritage. If we decide to make decisions in the future, certainly because we are responsible for passenger transportation, that could be a consideration.
In the meantime, the Commissioner of Official Languages is writing his annual report and is addressing Air Canada, because Air Canada is required to respect this legislation. And the House of Commons Standing Committee on Official Languages produces a report in response to this report.
This is something that is attracting a lot of attention, but right now, Air Canada is officially required to offer the service.
Senator Cormier: Thank you for your answer. Still, I would like to express our deep concern about how the departments work with each other on this issue of official languages.
We put the responsibility for implementing the act on the shoulders of Canadian Heritage, but I think there should be better collaboration, if I may, between the departments on this subject. As a senator who travels a lot, I, like many Canadians, experience the great challenges related to air travel, particularly with Air Canada, and the challenges of having access to equal safety.
So I am giving you this information in the hope that this situation can be taken into account as soon as possible.
Mr. Garneau: I am taking note of it, Senator Cormier. I would like to assure you that all information about safety on the aircraft is in both languages.
Senator Cormier: I fly regularly between Halifax and Montreal with an Air Canada affiliate. The initial safety rules that are provided, demonstrating safety zones and emergency exits, are given orally in English only. The French version is broadcast using a cassette tape to indicate how to wear the safety belt. So there are still some very serious challenges.
Mr. Garneau: I encourage you to let me know if you have an example, because the information is supposed to be given, one way or another, in both languages.
Senator Galvez: Thank you, Mr. Minister, for being with us today. Your bill is detailed and addresses a number of very important needs.
However, in the hour that we have spent here, you have spoken about how important security and safety is for you. It is very important for me, too.
There are statistics saying that some people were killed during derailments. I want to remind you that 47 people died in Lac-Mégantic instantaneously because the explosion was like one sixteenth of a nuclear explosion. The Transport Safety Board of Canada said there were 18 factors and that the human factor was not a single person’s responsibility. They said that the regulators, railways, shippers, tankers, manufacturers and refineries, each one of them assumed responsibility.
My point is that when you say that you will put these cameras in, for me, it is a bit too late. This is seen as a black box that will be used only after the accident happens, and not many people will see it. The statistics will be done to know what human factors may be involved. I agree with Senator Bovey that this information should go to the TSB and that they should do statistics and quantify the risk and the input of the human factor in a given accident.
You said that there is more legislation coming. I want to be reassured in the sense that the transportation of hazardous goods, as you said, will be taken into consideration and that transport will be safer. In the last 10 years, there has been a lot of deregulation. Industries were allowed to do their own inspections, emergency plans, checkups and maintenance of locomotives and other things. MM&A was sold to another small company, and the convoys are still made of 250-plus wagons passing through dense urban centres.
I think this doesn’t go as far, but I want to trust you. You say this is important for you and that more regulations or bills will be coming. Could you please tell me how this is going to be addressed?
Mr. Garneau: They are already.
Since the incident at Lac-Mégantic in 2013, there have been numerous measures put in place to improve railway safety. I am very conscious of Lac-Mégantic. I have been there three times. I have met with the people who are still traumatized by it. I have faced them. There is no question that there were deficiencies in railway safety before Lac-Mégantic, and there is still room for improvement.
Some improvements were made by the previous Minister of Transport because this occurred under the previous government. I have since made additional improvements, one of which will be LVVR. I have also advanced the review of the Railway Safety Act by a year and accelerated the phase-out of certain tanker cars that are not acceptable for transporting dangerous goods such as hydrocarbons. There will be other measures that will continue to be taken to improve railway safety. That is why it is my number one priority, because I have been indirectly scarred by what happened at Lac-Mégantic.
I would not agree with you that it is acting after the fact and just a Band-Aid. I think LVVR is an important safety measure, and it complements other actions that we have taken so far. I think it will turn out to be a wise decision that we are putting LVVR in our locomotives. Anything to improve railway safety.
As far as Lac-Mégantic is concerned, since 2013 we have done 100 inspections of that railway line. We monitor our lines in this country, not just Transport Canada but also the railways themselves. As you know, MM&A has now been replaced by CMQR, a different railway. I am watching what is going on with the trial. We have received the TSB’s recommendations on the things we needed to address. It was directed to Transport Canada.
Believe me, this is my number one priority. We are not just putting a Band-Aid on rail safety. This is one additional important measure. There will probably be others as we go along, and as long as I am the Minister of Transport, that will happen.
Senator Galvez: If the recording will be held in the box and will not be sent anywhere, how does that help security? Why are you reluctant to send it to the TSB, as a neutral body, so they can do statistics to see if people are sleeping or eating?
The Chair: Or on the phone.
Mr. Garneau: The TSB’s mandate is to investigate incidents or accidents. They decide whether to do that. For the TSB to look at hundreds and thousands of hours of data is not within their mandate.
We are cognizant of the fact that we have to take a very careful approach to the use of LVVR data. We want it only used under carefully controlled situations. The vast majority of trips by train occur without incidents or accidents, but where an incident or an accident does occur, it is very important for us to understand what happened. That is what we are focusing on, when there is an incident or an accident. In a few randomized cases we will be looking on a periodic basis at how the SMS system is holding up for a particular railway.
Senator Griffin: Thank you for being here today, minister. I know we have a lot of questions for you. It is a big bill.
I am the chair of the Standing Senate Committee on Agriculture and Forestry, so you can appreciate where I am coming from with respect to this bill. My big issue is related to the Western grain farmers and shippers, of course. It is safe to say that they are happy with the portion of the bill that applies to them, as long as it is passed before Christmas. But, of course, it will not be. I think we have all acknowledged the impossibility of that. You have described it as a fair and balanced bill. I am worried that the ones that it is not being fair to right now are the Western grain shippers.
While I applaud the long-term solution of the bill, I wonder if we should come back to what others have been suggesting: looking at some other means of taking care of this group expeditiously. My staff and I have checked with Senate legal counsel to see about splitting the bill. It’s not very easy for us to do that, but it would be easy for government to do that. The reason we can’t do it is because of the complexity of the bill. There are some clauses that overlap, so it’s hard to tease it out. That’s one option — that the government can do that on an emergency basis.
The second option is to go back to the Fair Rail for Grain Farmers Act and repeal subsection 15.1. Then reintroduce the other sections it had repealed and get those back in action. That would cover the situation in the short term.
In other words, I’m trying to find a way to be fair to one particular constituency here that stands to lose millions of dollars, which is the Western grain farmers. What can you do for us if we can’t get back to this committee until January 30, our first meeting after the break? It’s a big bill to deal with, so by the time the committee finishes with the bill, we’re well into February.
Mr. Garneau: You’re right that the response has been favourable from many quarters in the grain industry. I would ask you to proceed with urgency, because yes, it is very important for our farmers. We are the ones who actually acted on it. It could have been done by the previous government, and they chose not to do it. They put a Band-Aid solution in place.
I would also say to you — and I mentioned it at the beginning — that there are many other stakeholders that want this bill to go forward rapidly. Within your responsibilities as the Senate committee, I would ask you to act as urgently as possible.
Senator Griffin: That doesn’t solve my problem for the immediate remediation for the grain farmers. I’m still saying that to be fair to them, if we take that part out of the bill by amending another bill, then within itself, your bill is still a balanced, fair bill. But anyway, I stated my case, and my constituency is the one that is suffering in this particular matter.
The Chair: If we’d had the bill in mid-September, we might not be having this conversation.
Senator Griffin: I wish, yes.
Senator Mitchell: Thank you, minister. One of the things about an enlightened society like ours is the continual process and the struggle of balancing competing rights. That particular responsibility has fallen on your shoulders in trying to balance the rights of privacy for workers on one hand and safety for the public of Canada and workers as well. You have outlined, I think, a very clear effort to do that effectively and fairly, and with security for workers’ privacy.
Is it not also true that the Canadian Transportation Accident Investigation and Safety Board Act, in subsection 28(7), outlines a blanket fortification of what you’re saying with respect to protecting privacy rights? It very clearly states that on-board recordings, video and audio, cannot be used for disciplinary actions. And that’s legislation, not regulation. What you’ll be doing is peeling off a couple of exceptions. Second, is it not further reinforced by the restrictions you’re placing on how that information can be used — but also in legislation, the Railway Safety Act, has very clear and significant penalties for any individual or company that contravenes those kinds of regulations and requirements?
Mr. Garneau: You’re correct, senator. If you’ll bear with me, I will read this. Bill C-49 clearly makes LVVR data privileged information — this is very important to understand — under the Transportation Safety Act. This means it cannot be communicated or used for any other purpose than what is authorized by law, including accident investigation by the TSB. Bill C-49 expressly forbids the use of data for disciplinary measures, other than to address a threat to safety. As such, under the proposed regime, discipline could come into play only in situations of egregious behaviour. Any other situation where discipline is based on LVVR data would be totally against the law.
There are ways to find out if the data is being used beyond what would be permitted, whether through normal inspections and audits or following up on complaints. Transport Canada inspectors would be able to pursue any indication of a potential misuse of LVVR data. For example, Transport Canada would be able to conduct inspections based on the combination of the contemplated record-keeping and the electronic access log requirements to verify that LVVR data are only being used and communicated in accordance with the law.
Transport Canada will also be following up on complaints to determine possible situations of noncompliance and take enforcement measures as appropriate. Enforcement action will be taken if noncompliance is found. This includes the possibility of administrative monetary penalties of up to $250,000, or prosecution, not only under the Railways Safety Act but also under the TSB legislation.
I think that’s very clear.
Senator Mitchell: Thank you.
I have a quick and relatively technical question. Back to the issue of U.S. versus Canadian cross-border access, could you confirm that the 300-kilometre access that railways have, to some degree, is largely focused on the Prairies, because that enhances the competition that benefits Prairie farmers, and that that 300 kilometres is in place now and is not being changed by this piece of legislation; and further, that at 24 kilometres American crews get off trains in Canada, and at 24 kilometres Canadian crews get off trains in the U.S., so there is equilibrium there?
Mr. Garneau: That is correct, senator.
Senator Dagenais: As they say, we always save dessert for last. So I will try to show you my sweet side.
I would like to talk to you about joint ventures between airlines. We know that the Competition Bureau has already blocked a joint venture between Air Canada and United Airlines. We understand that the purpose of the intervention was to avoid a decrease in supply, which would have resulted in increased costs for passengers. As information, Air Canada and United Airlines already share certain services. If this were not the case, there might be advantages for flights to cities in the United States and perhaps more cheaper flights for consumers.
That said, in the bill — and correct me if I’m wrong — I think that power will be removed from the Competition Bureau for joint ventures, and the bill will control the situation. Given the urgency of the bill with respect to security, can you explain to us why the bill is going to take away — I wouldn’t say power, but a bit — from the Competition Bureau between the airlines?
Mr. Garneau: I will go back a little bit. You are right. At this time, the Competition Bureau may, at any time, review a joint venture. So if you are a company president, and you decide to organize a joint venture with another airline, there is a lot of effort involved in this process. If you do it right now, you don’t know if six months later the Competition Bureau will decide to review your joint venture. It could happen two years later or anytime. The Competition Bureau has no obligation to do so on demand. There are two things to change in this bill. The first is to establish that, when two or more airlines want to form a joint venture, there is a need for the decision to be approved by the government within a set period of time so that they know that it has been resolved and that they can go forward. Yes, the final decision lies with the Department of Transport, you are right. It’s because we decided to add another element, public interest. So the Competition Bureau will look at each proposed joint venture, and the Department of Transport will look at public interest.
The two parties will consult one another and determine whether this is a disadvantageous competitive problem for other Canadian airlines, which I certainly would not want to see or accept. It is also possible, when considering the whole project, that it is not a competition problem, that it is advantageous for passengers and that it gives them options.
In fact, it is simply a matter of making provision for public interest in the equation. I can assure you that Transport Canada will always consider the opinion of the Commissioner of Competition. It would not be a good thing if the Commissioner found that there is a problem with moving forward.
The Chair: Are there any joint venture provisions under American regulation similar to what you’re proposing here?
Ms. Borges: Yes, there are, actually. We are modelling our approach after the U.S. approach. It’s the Secretary of Transportation that makes the final decision there, in partnership with the Department of Commerce, but we’re actually mirroring the same approach.
The Chair: Are there any Canadian airlines involved in those partnerships, in those joint ventures, like Air Canada or WestJet, in the United States?
Ms. Borges: The one that we’re aware of that had come forward was one between United Airlines and Air Canada a couple of years back. They took it out because there were exceptions that the Canadian commissioner imposed on them in terms of requirements that they must fulfil in terms of routes served by the two of them versus routes served alone.
The Chair: Have you been hearing from Air Transat on this issue? I know they’re very concerned about this issue. Have they made presentations to you, minister, or talked to you about this issue?
Ms. Borges: We have had numerous discussions with Air Transat on this provision, as well as the foreign ownership provision, which they also have concerns about.
The Chair: Did their arguments hold water, as far as you’re concerned?
Ms. Borges: In our view, they did not. We believe the provision — which all the other carriers, by the way, agree with —
The Chair: Yes, I can see WestJet and Air Canada agreeing with it.
Ms. Borges: We believe that the provisions the way they are and the public interest examination that would come as a result of the assessment, if there are any specific concerns that Air Transat has or even in looking at partnerships, for example, with European airlines and such, they can be addressed through that public interest assessment.
The Chair: I have another question, minister. It’s not exactly on the bill, but it has to do with moving grain to the West Coast. CN came upon this particular problem where they laid off a whole bunch of their people, and they are having a tough time getting them back after the lay-off period, which to my understanding is stymieing transportation efforts by CN to the West Coast, which is not a good problem to have considering the crop we’re going to have as well. There is nothing in this bill that would solve that problem.
Mr. Garneau: No, that’s a business decision that has to be taken, and, certainly, for CN and CP, it’s in their interest to be able to provide that service. They have to make decisions with respect to their manpower. This bill doesn’t touch on that issue.
The Chair: Right. The reason I bring this up is that I want to make sure that people clearly understand that when these issues with transportation are arising because CN made bad management decisions and can’t get their workers back and now has a difficult time moving goods to the West Coast, that is not anything to do with us and what we’re doing here.
Mr. Garneau: I would add one other thing. It’s important, when we do decide whether or not we feel the grain is moving quickly enough, to look at the entire supply chain, the entire routing, because there can be problems, first of all, with natural events, such as mudslides and avalanches and things like that. In the winter, you have speed restrictions.
The Chair: I live out there; I know.
Mr. Garneau: You know all of that stuff. I will throw in the terminals as well, in the ports where they end up going. All of those are part of that long chain. It’s important to not necessarily jump on one particular part of it without knowing the whole situation.
The Chair: I got it.
Senator MacDonald: Minister, I would like to speak about airport security screening for a few minutes. It’s one of the biggest complaints of the travelling public in Canada. Certainly, we see it all the time, the lag, the time consumed being screened at the airport. I travel to the U.S. quite a bit. I get TSA clearance. I can go through without taking my belt off, taking my pants off, taking my jacket off. In short, I can get screened and get through American security quicker than I can through Canadian security. Why isn’t this being addressed in the bill when it’s such a big public issue in this country?
Mr. Garneau: I agree with you 100 per cent, senator, that we need to improve the speed with which we go through security. All I can say to you is that we’re working this on a separate track.
Senator MacDonald: I want to go back to safety. We’re all concerned about safety, of course. When it comes to incidents with trains and the public, trucks and cars or things of that nature, most of these accidents occur at level crossings in this country. Usually, I would assume that the train is not in the wrong place. Usually, the train that is on the track, going through a level crossing, has the right of way. This would seem to be an indication of the state of infrastructure as opposed to any particular inattention in the cab. What are we doing about the state of infrastructure in the country at these level crossings? Why isn’t that in the bill?
Mr. Garneau: Senator, there are about 45,000 kilometres of railroad in this country. There are 23,000 railroad crossings. About 14,000 of them are public and 9,000 are on private lands. We put $143 million in the 2016 budget specifically towards improving safety, and that money — a bit of it goes out every year — is focused on crossings.
If I’m not mistaken — my team can correct me — I think, last year, there were about 60 deaths at public crossings. Every time that occurs, if a car or truck is involved, we check to see, first of all: Did the gates come down where there are gates? There are not always gates. Did the lights flash? Did the bells ring where they are equipped with all of that? We decide what level of safety devices are required in each case. It is a responsibility between the communities and the railroads to be compliant with the regulations.
The truth of the matter is that, in the vast majority of cases, it’s not the train that is at fault. Out of those 60-odd deaths, about 40 of them are trespassers. They are not at railway crossings necessarily. Sometimes they are. They can be along the railway track. The truth of the matter is that, in some cases, those are intentional.
But in each and every instance where there is an accident at a railway crossing, we check to see that the system has worked properly. Where we feel that there is a problem, for example, if bushes have grown beside it and obstructed the visibility that a passenger would normally expect as they approach a rail line or, obviously, if some sign or some part of the mechanism didn’t work to clearly indicate that a train was coming, of course, we take action. We’re always open to communities saying to us, “We have a problem here,” and they can apply for funding to improve their crossing.
Senator Mercer: Minister, I get to ask the last question but also get to say thank you for your candour and being here. We appreciate that.
Mr. Garneau: Thank you, senator.
Senator Mercer: We know the questions were not always easy. This one may not be easy either. My practical question is on the issue of the LVVRs on trains that cross the border into the United States. We put LVVRs in our trains, they go across the border 24 kilometres in, and you have to switch crews. Those are the regulations. Now we have LVVRs in trains with an American crew. Do we turn off the LVVRs, and if we don’t, what do we do with the data? The practical question is: Who has access to the data being collected in the United States? Is it restricted to their transportation departments? If it comes back to Canada, we now have recordings of American citizens on the trains. How does this balance out so that we’re protecting everybody’s privacy and sovereignty?
Mr. Garneau: Your question is highly technical. If there is something that I don’t answer, we’ll get back to you on that. Here is what we have.
Any railway company operating in Canada or on federally regulated track is subject to the Railway Safety Act and must follow the Canadian regime. This includes Canadian companies as well as U.S.-based railway companies operating in Canada. So when they are in our neck of the woods, they have to respect us.
Based on a number of the provisions proposed in Bill C-49, Transport Canada would be able to conduct oversight activities to verify that the information collected by the LVVR in Canada, whether by Canadian or U.S. companies, is being used or communicated in accordance with Canadian laws. For example, Transport Canada would be able to conduct inspections based on the combination of the contemplated record- keeping and the electronic access log requirements to verify that LVVR data is only being used and communicated in accordance with the law. Transport Canada will also follow up on complaints to determine possible situations of non-compliance and take enforcement measures as appropriate.
That doesn’t answer your question about recording data on a Canadian train of a U.S. — I don’t know if we have an answer to that. Mr. Langlois?
Mr. Langlois: The Canadian regime will force a company to record while they are in Canada. We can’t force them to record in the U.S. We don’t have Canadian legislation applying in the U.S. The Canadian law will say record while you are Canada. As soon as you get to the border, the obligation to record stops. Canadian law can’t cross the border. The information recorded in Canada remains privileged under Canadian law. Despite the fact that the device crossed the borders and the device is in the U.S., application of Canadian law continues to apply, so the data that is collected in Canada remains privileged. The mechanism of the safeguard put in the system, including encryption, who accesses and how it is accessed will be able to be monitored, even though the locomotive is outside of Canada. The information, regardless of where it is, will remain subject to the protection of the regime that is established in legislation.
The Chair: Thank you, colleagues, and thank you, minister. This has been a good hour and a half.
I just want to say, minister, that we have a large number of citizens who want to be heard and who have given indication to us that they want to be heard. I think all colleagues here take this matter very seriously. We have no interest in impeding anything. All we’re trying do is our job. We hope to see you again before we go to clause-by-clause, minister.
Members, we have a very short meeting in camera right after this. It will only be a couple of minutes because we have to leave at 11:30.
Thank you, minister.
(The committee continued in camera.)