Proceedings of the Standing Senate Committee on
National Security and Defence

Issue 18 - Evidence (11:00 a.m. session)

TORONTO, Monday, June 24, 2002

The Standing Senate Committee on National Security and Defence met this day at 11:00 a.m. to examine and report on the need for a national security policy for Canada.

Senator Colin Kenny (Chairman) in the Chair.

The Chairman: Good morning.

Present this morning are Senator Forrestall, from Nova Scotia; Senator Banks from Alberta; Senator Day from New Brunswick; Senators Day and Cordy from Nova Scotia; and Senator Wiebe from Saskatchewan. Senator Atkins and Senator Meighen will join us in the course of the hearing.

Our first witness today is Mr. Larry Fleshman from Air Canada. Mr. Fleshman, please proceed.

Mr. Larry Fleshman, General Manager, Customer Service, Toronto, Air Canada: Honourable senators, it is my pleasure to discuss a topic near and dear to our hearts. With me are my two colleagues, Mr. Iain Fernie, Regional Security Operations Manager, and Mr. Warren Maines, Customer Service Director. Mr. Fernie's responsibilities are self-explanatory from his title, and Mr. Maines' responsibilities include all the service delivery aspects of our activities at the airport, such as all interaction with agents, et cetera. I am the General Manager of Customer Service in Toronto with 25 years of experience in the airline business, and the last three years, or so, with Air Canada.

I realize that this is your hearing and I do want to hear your questions as soon as possible, but I thought I would say a few words first to set some of the groundwork about where Air Canada is coming from.

We work very closely, as an airport community, with the Greater Toronto Airports Authority, GTAA; with Transport Canada; with the Canadian Air Transport Security Authority, CATSA; with local law enforcement; with the RCMP; and with our security vendors. We look at it as building a web of security at the airport. Each and every employee at the airport, when he or she receives a security pass, has an obligation around security.

Canada, specifically though, Air Canada, has had a long history of focusing on safety and security and working cooperatively with our partners in the security community. Prior to September 11, Air Canada staff at the airport worked closely with Transport Canada and with airport authorities to create a safe and secure environment. Air Canada has been an industry leader in safety and security and, in fact, has recently received awards in respect of that issue.

Since 9/11, a series of things has happened and our world has been changed dramatically. Of course, we have the creation of CATSA, but locally, at this airport, we have added in excess of 400 security staff. Air Canada's security budget has increased fourfold. We have added roughly 40 per cent capacity to our security checkpoints in order to minimize the impact on customers while meeting the criteria set by Transport Canada.

We have taken action in support of the U.S. scenario with respect to advance passenger information. We are required to have that information in the hands of the U.S. group in Washington prior to any arrivals in the U.S. We have actually modified our self-service kiosk machines to accept passport information, thereby allowing customers to proceed as quickly as possible through the process while meeting all the requirements set forth by Transport Canada.

Air Canada was actually the first major airline to reinforce all of our cockpit doors. I prefer to focus my comments on the airport itself but, on November 14 last year, we became the first airline to meet that new, heightened level of security. We are currently working with the GTAA as well as with CATSA and Transport Canada as we design our new terminal, which you can see across the way, to ensure that we are able to optimize the design and the information technology, IT, process that will minimize the impact on customers and that will maximize the security that we generate at this facility.

I now welcome your questions.

The Chairman: Do your colleagues have any comments to make?

Mr. Fleshman: Not at this time.

The Chairman: Could you describe, for the benefit of the committee, what happens to a bag when a passenger checks in at the airport? Could you take us through that process from the check-in point through to passenger receipt of his or her bag at the carousel of the destination airport?

Mr. Fleshman: In general terms, baggage is checked in, an identification tag is attached, and then we go through procedures once the bag is on a conveyor belt behind the scene. We ensure that baggage and customers match up on board an airplane. If a customer does not board the flight, the bag will not be loaded onto that flight. That is a broad overview, but that is the extent of it to which I am able to speak right now.

The Chairman: When a passenger bag goes down into the hole, what kinds of checks take place on it?

Mr. Fleshman: Right now, I do not believe I am in a position to talk about that because it is outlined in the Transport Canada security procedures. We meet those requirements, as they are currently outlined, with each and every bag.

The Chairman: Are any of those bags X-rayed?

Mr. Fleshman: Yes, some bags are X-rayed.

The Chairman: What percentage would that be?

Mr. Fleshman: I cannot give you that percentage.

The Chairman: You cannot or you will not?

Mr. Fleshman: I cannot because I do not know the percentage.

The Chairman: Does anyone on the panel know the answer to that question?

Mr. Iain Fernie, Regional Security Operations Manager, Air Canada: Mr. Chairman, because of the Transport Canada regulations dealing with security matters, we hesitate to answer questions relating to security measures as they pertain to baggage, the screening of passengers, and the security measures that are in place. I do not have the authority, or permission from Transport Canada, to answer questions pertaining to those matters.

The Chairman: Are you saying, Mr. Fernie, that you know the answer or that you do not know the answer?

Mr. Fernie: I do know the answer, sir, but I am not at liberty to discuss the matter at this time.

The Chairman: What is your authority for that, sir?

Mr. Fernie: Transport Canada.

The Chairman: You need a better authority than that, sir.

Mr. Fernie: Emergency measures are in place under the Air Carrier Security Regulations. The airline is held to those and cannot disclose them.

The Chairman: Could you cite the specific authority, please?

Mr. Fernie: I believe, sir, that it is 4.8 of the security measures.

The Chairman: Is that a piece of legislation or is it a regulation?

Mr. Fernie: Each time we receive a security measure, or amendments to the Air Carrier Security Regulations, there is a statement and, if I may, disclosure of a security measure contained in this document is prohibited by section 4.8(1) of the Aeronautics Act, except where required by law or to give them effect.

The Chairman: Are you citing this as your reason for not giving us the information that you have?

Mr. Fernie: Yes, sir.

The Chairman: Thank you. For this hypothetical instance, a customer comes to Air Canada at Pearson with a package that he wants delivered to Vancouver airport. Please describe what happens to that package.

Mr. Fleshman: We are in the same boat with that request, unfortunately. There are procedures set out in the security measures for the handling of cargo, and I assume that you are discussing a cargo shipment that is not travelling with a customer. We meet those requirements.

The Chairman: What are those requirements?

Mr. Fleshman: That is what I am not at liberty to discuss.

The Chairman: When I walk up with my package, what happens?

Mr. Fleshman: I am just not at liberty to discuss that because much of it depends on a myriad of issues surrounding you as an individual or you as a corporation, et cetera.

The Chairman: You are telling me that, if I want to find out what happens to a package, I have to go to Pearson with a package for shipping. I am asking you to describe what happens at the counter.

Mr. Fleshman: Yes.

The Chairman: Do I fill out a form?

Mr. Fleshman: You are required to fill out an air waybill.

The Chairman: Is that a secret?

Mr. Fleshman: The fact of the air waybill is not a secret.

The Chairman: Are the questions asked on that air waybill a secret?

Mr. Fleshman: No, sir.

The Chairman: Tell us what is on the form, sir.

Mr. Fleshman: I do not have the form in front of me.

The Chairman: Is there someone here not responsible for packages?

Mr. Fleshman: Ultimately, as the General Manager, I am responsible for packages that go on airplanes.

The Chairman: What are the questions on the form that you ask a customer to fill out?

Mr. Fleshman: There are no questions. It is just a standard air waybill that has been used in the industry for years.

The Chairman: Would you describe that for us, please?

Mr. Fleshman: It has the names of the consignee and the shipper as well as information regarding contacts and destination, et cetera.

The Chairman: Run us through this hypothetical form that is being filled out, please.

Mr. Fleshman: That is really it. It has the names of the destination and the receiver of the package, including addresses and phone numbers. It is the same as a form that you would fill out if you were to ship via a Federal Express office.

The Chairman: Do you ask what is in the package?

Mr. Fleshman: There is a wide range of questions specific to security that we ask, but I am not at liberty to talk about them.

The Chairman: Are these printed on a form?

Mr. Fleshman: No, they are not printed on that form.

The Chairman: If I were to walk up to the counter at Pearson, would I be asked those questions?

Mr. Fleshman: As I said, senator, it depends on the individual and the corporation that individual works for. There is a myriad of things to determine which process we would put you through as a shipper. I am not at liberty to talk about the details in respect of those processes because it would compromise the entire security measure.

The Chairman: In other words, you could tell me, but then you would have to kill me.

Mr. Fleshman: No. If I told you, I would be liable and could be held accountable for violating section 4.8(1).

The Chairman: You are telling us that if any member of this committee were to ship a package, you would then tell us the information because you would ask us the questions?

Mr. Fleshman: Yes, we would and we would be in compliance with Transport Canada's security measures.

The Chairman: I am thinking of shipping a package, Mr. Fleshman —

Mr. Fleshman: I am not in a position to talk about this in a public forum.

The Chairman: You are prepared to ask the questions at an Air Canada counter where anyone could walk up.

Mr. Fleshman: We will meet the requirement each and every time.

The Chairman: It would not matter who walked up to the counter — any member of the public could walk up to your counter and you would be prepared to share the questions with them, but you are not prepared to share the questions with the Parliament of Canada; is that correct?

Mr. Fleshman: We would not share the entire security measure with that person because we deal with each individual and apply the appropriate measures to that individual based on the situation at hand.

The Chairman: How do you determine what the appropriate measures are?

Mr. Fleshman: Those are outlined in the measures and we follow them. It is pretty self-explanatory, once you see the measures.

The Chairman: I am open to something that is pretty self-explanatory. Why do you not self-explain it to me?

Mr. Fleshman: I have been instructed that I will be in violation of this section 4.8(1) measure if I divulge the intricacies.

The Chairman: Who instructed you, sir?

Mr. Fleshman: Our legal counsel.

The Chairman: What is his or her name?

Mr. Fleshman: I do not have the name, sir.

The Chairman: Are you sure that that person gave you the instructions?

Mr. Fleshman: Yes.

Senator Forrestall: You do not know who it was. Was it Mr. Baker?

Mr. Fleshman: No, it was not. I can tell you that.

The Chairman: When someone arrives at a counter to ship something on an Air Canada flight, you ask him or her some questions.

Mr. Fleshman: Yes, sir. There is also information that you can extract form the air waybill.

The Chairman: Do you have a copy of this air waybill?

Mr. Fleshman: We are not speaking of specific air waybills, sir, but no, I did not bring copies.

The Chairman: Can you provide the committee with a copy of an air waybill?

Mr. Fleshman: Not today. If you want an air waybill, I can provide one, whether later today or another time.

The Chairman: Thank you. An air waybill is filled out and then questions are asked of the individual.

Mr. Fleshman: Yes.

The Chairman: Then, would you take receipt of the package?

Mr. Fleshman: It depends on how the questions are answered, sir. This is a difficult position to be put in and I am not trying to be coy about this. The issue is simply based on the information on the air waybill and the individual that is present. We are then tasked with following certain protocols, which we follow. Quite honestly, senator, the response could be different depending on the situation at hand. It could be different even by virtue of the day of the week.

The Chairman: Let us move on to the matter of food on the aircraft. How does food get from your suppliers to the aircraft?

Mr. Fleshman: Our catering company delivers the food.

The Chairman: What checks do you have on the food to ensure that it arrives safely?

Mr. Fernie: Mr. Chairman, emergency measures surround that issue as well.

The Chairman: I am sorry, what kind of measures are those?

Mr. Fernie: Security measures apply to matters involving the food for the aircraft and dealing with outside contractors. Air Canada's food contractor is Cara. Those measures are outlined in the security regulations and, again, we are bound by section 4.8(1).

The Chairman: Where is mail delivered to, for shipping by Air Canada, in Toronto?

Mr. Fernie: We take possession.

The Chairman: Whereabouts? Where is delivered to?

Mr. Fernie: It arrives at the cargo facility in the infield area of Lester B. Pearson International Airport.

The Chairman: Does it arrive in a postal vehicle?

Mr. Fernie: Yes, it does.

The Chairman: Is that through any one particular gate?

Mr. Fernie: In that area, it does not come through a specific gate but rather it comes to a specific area. Our cargo facility is located in the infield area. For those who are familiar, it is also an area where Cara is located. Our personnel take possession from Canada Post. There are certain measures in place per the Air Carrier Security Regulations and the amendments to that.

The Chairman: When the Canada Post vehicle arrives, it comes through a gate to this area.

Mr. Fernie: It comes to our cargo facility, yes.

The Chairman: What happens to it there?

Mr. Fernie: Our personnel take possession of it and they fulfil the requirements set out by Transport Canada, with which we are in compliance.

The Chairman: Do you put it through any security screening?

Mr. Fernie: Again, I cannot divulge that information because of the security measures.

The Chairman: We do not know whether mail is screened before it is carried aboard Air Canada flights.

Mr. Fernie: Mail is screened.

The Chairman: Are you responsible for that?

Mr. Fernie: No, our cargo general manager is responsible for that.

The Chairman: Air Canada is responsible for screening mail that is loaded on its planes.

Mr. Fernie: Yes, and also to fulfil the direction of and compliance required by Transport Canada.

The Chairman: If I understand you correctly, the mail arrives unscreened and then you take it and screen it.

Mr. Fernie: I cannot answer for Canada Post. I believe they go through an independent process, but those questions will have to be directed to Canada Post.

The Chairman: Do you or do you not rely on Canada Post's screening?

Mr. Fernie: Anything that comes within the aerodrome environment is put through a security procedure, independent of any other measures in place by Canada Post or any outside contractors or any other government agency.

The Chairman: Your screening stands alone. Is that what you are saying?

Mr. Fernie: Yes.

The Chairman: What measures do you have in place to ensure that fuel arrives safely at you aircraft?

Mr. Fleshman: Fuel arrives at Pearson through a pipeline.

The Chairman: Is that for all aircraft? Are there no fuel trucks at Pearson?

Mr. Fleshman: We have a security process whereby the fuel farm is secure. Quality checks occur on a daily basis. There are quality testing devices on each and every hydro truck and as well as on each fill point into a tanker truck.

The Chairman: Is each truck searched as it comes in?

Mr. Fleshman: I cannot answer that question because I am not sure.

The Chairman: Are all Air Canada employees subject to the same screening process that passengers are subject to when they come to Pearson?

Mr. Fleshman: Each Air Canada employee is subject to passing through a checkpoint.

The Chairman: That was not my question, sir.

Mr. Fleshman: Would you restate your question?

The Chairman: Yes. Do they go through the same security procedures as passengers go through? Right now, for example, pilots go through the same screening as passengers. My question is: At Pearson, when they come to work, do all other employees go through the same screening that passengers go through?

Mr. Fleshman: That is another questions that I cannot answer.

The Chairman: Is it that tough?

Mr. Fleshman: We are in compliance with transport regulations.

The Chairman: One would assume that, if they were screened in the same way as the passengers, you would say, ``Yes, sure.'' How are your pilots screened when they board a plane?

Mr. Fleshman: They go through the security checkpoint.

The Chairman: At that point, are their bags opened?

Mr. Fleshman: They could be searched.

The Chairman: Are they X-rayed?

Mr. Fleshman: Yes.

The Chairman: Do pilots' bags pass through a machine that indicates whether there are metal objects inside?

Mr. Fleshman: As a minimum, yes.

The Chairman: Is it possible that pilots' bags are also checked with a swab to detect any residue that may be present to determine whether there is a bomb inside?

Mr. Fleshman: Yes, sir.

The Chairman: Do all other Air Canada employees, who might go airside, go through the same check?

Mr. Fleshman: Once again, I am not at liberty to answer that question.

The Chairman: How about you, Mr. Fernie?

Mr. Fernie: There is a screening process to deal with all employees at Lester B. Pearson International Airport. Again, at this time I cannot divulge that process.

The Chairman: You are prepared to tell us that pilots and aircrew are checked to the same standard that passengers are checked, but you are not prepared to tell us whether other people working airside are checked to that same level.

Mr. Fernie: There is a different process. For example, if a customer service agent, who works for Air Canada, or a GTA agent at Terminal 2, attends a screening checkpoint, they must go through the same screening as the pilots and passengers.

The Chairman: What about the person that fixes a flat tire on an aircraft?

Mr. Fernie: They go through a different type of screening.

The Chairman: Does someone check their lunch boxes?

Mr. Fernie: Yes, in most cases they do.

The Chairman: In most cases. What percentage?

Mr. Fernie: It depends on the location and the site within the airport.

The Chairman: I said, what percentage?

Mr. Fernie: I could not give you a percentage.

The Chairman: Would it be over 50 per cent? Is that what you said?

Mr. Fernie: I am not saying that. I cannot give you a percentage.

The Chairman: It is not most cases; it is a number but not necessarily 50 per cent?

Mr. Fernie: It depends on the location within the airport.

The Chairman: How many mechanics are physically checked, as a passenger would be checked, by walking through a machine that sets off lights if the person is carrying a gun or other kind of weapon?

Mr. Fernie: I could not given you that number.

The Chairman: Is it that you do not know or that you will not tell us?

Mr. Fernie: I do not know the number.

The Chairman: Does anyone know?

Mr. Fleshman: The only way to answer that question is to say that we are in compliance.

The Chairman: Are you saying that you do not know whether your own employees are carrying weapons airside? Is that what you are telling us?

Mr. Fleshman: That is not what we are telling you.

The Chairman: What are you telling us, then?

Mr. Fleshman: We are in compliance with Transport Canada security measures.

The Chairman: You are quite content to tell us that pilots coming on board are checked; and that you are satisfied because they go through the same tests that passengers go through to ensure that they are not carrying guns and/or explosives on board. This committee is seeking the same assurance that people working airside have gone through the same level of scrutiny.

Mr. Fleshman: People working airside have been screened.

The Chairman: I just asked Mr. Fernie that question and he said he did not know that. He could not tell us what percentage was checked.

Mr. Fleshman: It becomes complicated, but every employee is screened and every employee goes through a screening point. The question that you asked had to do with how many people have their lunch boxes opened.

The Chairman: We all went through a screening point so that we could walk into this room. However, we have no idea who brought what into this room.

Mr. Fleshman: Agreed.

The Chairman: My question is: Do you know whether Air Canada employees are bringing explosives or weapons to work with them?

Mr. Fleshman: We cannot say.

The Chairman: Do you know the answer to that, Mr. Fernie?

Mr. Fernie: No, I do not.

The Chairman: Do you think it would be a good thing if Air Canada knew whether its employees were bringing weapons to work?

Mr. Fleshman: Based on the current requirements and on the screening that takes place, we are extremely confident that our employees are not bringing anything they should not be bringing to the workplace.

The Chairman: On what do you base that confidence, Mr. Fleshman?

Mr. Fleshman: On the process that takes place at the screening point.

The Chairman: Assist us in sharing your confidence. How do you arrive at that level of confidence?

Mr. Fleshman: My confidence actually lies with Transport Canada and its directive. It is my opinion that, if we follow the directive and if we are compliant with it, then that gives me a good feeling that we are creating a safe work environment.

The Chairman: We already have on the public record that your director of security does not know whether there are weapons in the workplace.

I will open the floor to questions.

Senator Day: You understand why it is important for us to try to get the facts. It is disappointing that you are not able to tell us about the directives and the process you are following. I would like to ask you how you satisfy yourself that you could not answer questions arising out of section 4.8(1) of the Aeronautics Act?

Mr. Fleshman: Can you restate the question?

Senator Day: How did you satisfy yourself that you should not, would not and could not answer any questions that the chairman put to you in relation to the procedures and processes that you follow in relation to security issues?

Mr. Fleshman: I think, sir, it is actually the language that is in the procedures. It very clearly states that we cannot talk about them.

Senator Day: How did you satisfy yourself? You knew what questions we wanted to ask. Who told you not to answer these questions?

Mr. Fleshman: No one told us not to answer the questions, sir, but we did get advice from our legal counsel to stay away from the specifics of the protocols inside the measures because we could be subjecting ourselves — and I do not know exactly how to word it — to some legal action if in fact we divulged the detail of the measures.

Senator Day: Was that an oral statement to you and therefore you had to determine what you could or could not answer, or did you receive something specifically in writing from someone?

Mr. Fleshman: No, sir, it was an oral discussion we had.

Senator Day: How did you satisfy yourself that the person who told you this was a lawyer? You do not know the person's name.

Mr. Fleshman: I do not have that name handy, sir.

Senator Day: Was it a man or woman?

Mr. Fleshman: It was a man.

Senator Day: An employee of Air Canada?

Mr. Fleshman: Yes, sir.

Senator Day: Working in Montreal or Toronto?

Mr. Fleshman: Montreal.

Senator Day: You met with this person?

Mr. Fleshman: No, sir.

Senator Day: It was on the phone.

Mr. Fleshman: Yes, sir.

Senator Day: Were you satisfied that the person on the other end of the phone was a lawyer, and was who he said he was?

Mr. Fleshman: Yes, sir.

Senator Day: How did you determine that?

Mr. Fleshman: I determined that based on the other people in the room with him, sir, that I happen to know first hand.

Senator Day: Who were they?

Mr. Fleshman: To tell you the truth, I cannot remember exactly who was in the room.

Senator Day: When did the meeting take place?

Mr. Fleshman: On Friday.

Senator Day: Friday past. You were here in Toronto?

Mr. Fleshman: Yes, sir.

Senator Day: Did you have a list of the questions we wanted to ask?

Mr. Fleshman: Yes, sir, I did.

Senator Day: The lawyer did as well?

Mr. Fleshman: I am not sure that the lawyer had the questions, sir.

Senator Day: Did the lawyer know generally what you were going to be asked?

Mr. Fleshman: Yes, sir, I believe so.

Senator Day: Based on that, the lawyer told you not to answer any questions with respect to process?

Mr. Fleshman: The lawyer told us to be concerned about the measures within the protocols that talk about divulging and disclosing, because the general message was that, if we do talk about any detail, that we potentially diminish the effect of the procedures. That is the last thing that we want to do.

Our hearts are in the same place as all of your hearts. We want it to be the safest airline in the world. We want the entire air transportation system to be the safest in the world. We want customers to come swarming back to us.

I do not want to end up with legal action against me for violating the protocols that are outlined in this measure. We feel that, if we divulge any of these measures, we are actually minimizing the effect of the whole intent of the procedures.

Senator Day: This was the advice you received from your legal counsel?

Mr. Fleshman: Yes, sir.

Senator Day: The only other question I have is in relation to the fact that you said that you were satisfied with the procedures set out by Transport Canada, that you are meeting all of the regulations in relation to the various questions asked of you. You are satisfied that everything is okay because you are meeting these protocols that you cannot talk about?

Mr. Fleshman: We work closely with Transport Canada on a daily basis. They are part of this security community at the airport. We are in constant discussion about following the protocols. Trust me, sir, if we are off by a step, we are notified immediately, and we get in and resolve it.

Senator Day: Are any Transport Canada employees present at these various screening locations?

Mr. Fleshman: From time to time, sir, there are, yes. That happens more now than ever.

Senator Day: Do they do a periodic check to ensure that you are following the protocols? Is that how you are satisfied that you are following the protocols?

Mr. Fleshman: Yes, sir.

Senator Day: They are happy with what you are doing?

Mr. Fleshman: Yes, sir.

Senator Day: On other thing this committee would be interested to know is whether you keep statistics that you can share with us in relation to the screening. What do you find periodically? How many people do you turn back? How many people require extra inspection?

Mr. Fleshman: We do not actually have statistics. We do not keep statistics on that.

Senator Day: Transport Canada does not require you to keep statistics?

Mr. Fleshman: Not in terms of how many people we send to a secondary check or how many people we send to an electronic sniffer and that sort of thing. We have no idea.

Senator Day: You keep no logs at all of baggage that you inspect or baggage that generates a positive alarm?

Mr. Fleshman: Logs regarding alarms are kept at the checkpoint. We do not keep any records of how many bags we check per customer and things like that.

The Chairman: On a given day, you would not know how many bags you checked. If you were asked for numbers from last week, Air Canada would have no way of knowing how many of bags were checked.

Mr. Fleshman: We would say we checked every bag, sir. Every bag went through the X-ray unit.

The Chairman: That is the question. Did you X-ray every bag that went on a Air Canada plane last week?

Mr. Fleshman: We X-rayed every bag that went through the security checkpoint — the passenger screening point.

The Chairman: Did every bag that went on a Air Canada plane go through the passenger-screening checkpoint?

Mr. Fleshman: I am sorry, sir, but that gets back to the issue we are not allowed to talk about.

Senator Banks: I will move to a different area and ask a question of Mr. Fernie. We have heard in our travels across the country at different points of entry into Canada, that in some ports there is the involvement of organized crime in cargo handling. That goes without saying. That is like saying the sky is blue, and the sun may come up tomorrow.

Do you, as a matter of corporate policy, fully cooperate with the various security forces that are at work here, including the CCRA, the OPP, the Peel Regional Police, CSIS, and the RCMP? There are probably more. Is it the policy of Air Canada to fully cooperate with them when they are conducting investigations into the possibility of crime being involved with the service aspect of the operation of an airport?

Mr. Fernie: Senator Banks, on a daily basis Air Canada cooperates with the law enforcement agencies and the intelligence agencies. We supply them with assistance in many cases. For example, if contraband is detected within our cargo facility, we work hand in hand and conduct parallel investigations with these authorities.

It is a trusted partnership that has been enhanced over the years, more so now than ever. It is a partnership where municipal and provincial government agencies must work hand in hand with the private sector, in this case, Air Canada. We are very proud, especially our branch, that we do work hand in hand.

If I may wander somewhat off topic, we work very closely with the Canada Customs and Revenue Agency and the RCMP dealing with the interdiction of narcotics from certain Caribbean countries. We entered into a letter of understanding where Air Canada, that is, corporate security and risk management, is very proactive in putting security measures in place to keep in check narcotics getting on our aircraft.

Again, we are held to various laws when the police ask for information. In some cases we cannot divulge that. They will have to get a search warrant.

In many cases, we conduct our own internal investigations dealing with cargo thefts by questionable employees, to whom you may be alluding. We are very proactive, and we are very proud of that.

Senator Banks: As I said, it is a given fact that it is the nature of organized crime — for narcotics and other things — that it needs to infiltrate people who service ships, planes and trucks. It is a question of degree.

One of the means that most police and security services employ to find that infiltration is infiltration. That is to say, they put people undercover operating in that service as an employee, unbeknownst to anyone.

Does Air Canada do that? You are a security guy. You must from time to time want to put a guy into a certain part of the operation to find out what is going on. You cannot do it because everyone knows you.

Mr. Fernie: We are the private sector. I can say that the police have conducted investigations within the Air Canada community. We cooperate with them. I must say that there may or there may not be those types of operations going on right now.

Senator Banks: Without being specific, have they ever put an undercover officer into Air Canada's service community?

Mr. Fernie: There have been incidents in the past. No comment about the present or the future, sir.

Senator Banks: I am not talking about any specific occasion. Does that sometimes happen? When requests are made for that to happen, either by you or by one of the various police services, is it Air Canada's policy to accede to those requests?

Mr. Fernie: We assess every police request. I would say that, in most cases, we fully cooperate with the authorities.

Senator Banks: Does that include putting into place an undercover person posing an Air Canada employee? Has that happened?

Mr. Fernie: It has happened in the past, yes, sir.

The Chairman: We have received sworn testimony to the effect that requests made by police services to the human resources department at Air Canada have been turned down. I am not talking about what is happening now; I am referring to the past.

Mr. Fernie: I have been with Air Canada corporate security, and requests have been made. I have been with them for three years and requests have been made.

The Chairman: In your experience, have those requests been turned down, sir?

Mr. Fernie: Some have, yes, sir.

Senator Forrestall: Why?

Mr. Fernie: That decision was based on our assessment of the situation. Depending on the situation, we either cooperate or we do not. In most cases, if not all cases, we fully cooperate with the police.

In some cases, the police do not have a knowledge of the airport environment. We are there to educate them with respect to the airport environment. In some cases, after we subjected them to our assessment, they decided not to go that route.

The Chairman: They decided, or they were turned down by Air Canada?

Mr. Fernie: Either way. They decided, or we turned it down.

Senator Forrestall: Do you do human resource profiling with respect to employees?

Mr. Fernie: We do a security background check on our employees, yes, sir.

Senator Forrestall: Do you use the technique of profiling in your employment practices?

Mr. Fernie: We do use some profiling. When there is an occurrence with one of our employees which raises our suspicions, we will enter into an investigation of that person. In some cases, we may refer matters to the authorities who have criminal jurisdiction.

Senator Meighen: If I have a criminal record, am I barred from employment with Air Canada or from employment in some specific areas of Air Canada's operations?

Mr. Fernie: No, sir, you are not. A criminal record under waiver matters, but it is not a reason that would cause a person not to be employed by Air Canada.

Senator Meighen: If I had a previous conviction for drug smuggling, would I be automatically be barred from employment with Air Canada?

Mr. Fernie: Automatically?

Senator Meighen: That is my question.

Mr. Fernie: No, sir.

Senator Meighen: Conceivably, I could be employed by Air Canada, having been convicted and having served my term.

Mr. Fernie: We must comply with the waiver laws of Canada and various other countries. As you know, senator, a criminal conviction is no reason to deny a person employment.

The Chairman: Are you familiar with the Transport Canada regulations regarding the granting of passes?

Mr. Fernie: Somewhat, yes, sir.

The Chairman: Don't prior drug conviction preclude someone from getting a pass?

Mr. Fernie: I cannot answer that, sir.

The Chairman: Thank you.

Senator Meighen: That is interesting. I happened to be fishing last week, and the person guiding me was precluded from becoming a warden on the river because he once hit someone in a bar. Yet, I hear now that a convicted drug smuggler is not automatically barred from employment with Air Canada. Did I understand correctly?

Mr. Fernie: Could you repeat the scenario, sir?

Senator Meighen: I am drawing a comparison. I was fishing on a river, guided by an individual who could act as a guide but not as a warden because he had a criminal conviction for assaulting someone in a bar. He is barred. He cannot be a warden. However, I hear from you that anyone who has a conviction as a drug smuggler is not automatic barred from employment with Air Canada in the cargo area, for example. I hear you saying that there is no bar whatsoever. The job application would be judged as if there had been no conviction.

Mr. Fernie: Sir, on the mere fact that a person has a criminal record —

Senator Meighen: Drug smuggling.

Mr. Fernie: Drug smuggling may or may not bar someone from seeking employment with Air Canada.

Senator Meighen: Obtaining, not seeking.

Mr. Fernie: We would definitely, as a corporate citizen, scrutinize that individual very closely.

Senator Meighen: Do you take that responsibility on yourself? Would the scrutiny take place under your aegis or would you call in a police force?

Mr. Fernie: It is done solely by us. If the person divulges that he has a conviction — he volunteers that information to us — we may question him on the circumstances.

Senator Meighen: Do you feel more competent than a police force to make that judgment?

Mr. Fernie: If matters such as that are referred to our office, yes.

Senator Meighen: Would it matter where in Air Canada I was applying for work as a convicted drug smuggler? Would there be different treatment based on what section in Air Canada I wanted to work? If I were applying to work in the cargo area, would I be less or more likely to get employment than if I were seeking employment as a passenger agent?

Mr. Fernie: You would definitely be scrutinized.

Senator Meighen: That was not the question. The question was: Would I be less likely to obtain employment if I were seeking it in the cargo area than if I were seeking it as a passenger agent?

Mr. Fernie: If someone has voluntarily disclosed a criminal conviction for drug smuggling, we would definitely have a hard look at that individual. We would definitely take a closer look at his or her references.

Senator Meighen: A closer look than —

Mr. Fernie: Than someone who has no criminal record.

Senator Meighen: Again, you did not answer my question. Where does smuggling take place? Does it not take place in the shipment of cargo?

Mr. Fernie: It can, sir, yes.

Senator Meighen: Does it not take place primarily there?

Mr. Fernie: No, sir.

Senator Meighen: There is another place where it happens more frequently?

Mr. Fernie: Yes, sir.

Senator Meighen: If I were applying as a convicted drug smuggler for employment in that other place — and forgive me because I assumed the cargo area would be the logical place — would my previous conviction for drug smuggling make it less likely that I would be employed in that other place than in a place where there was not much opportunity for smuggling?

Mr. Fernie: Senator, I can only reply to that question by saying that, under labour laws, a conviction of a criminal offence does not preclude employment anywhere in Canada. If an individual has applied and has voluntarily submitted to Air Canada the admission that he or she has a conviction for the importation of a narcotic, we would definitely have a harder look at that individual.

Senator Meighen: That is wonderfully reassuring. I do not think your statement is correct. If I am convicted of a criminal offence, I cannot practice as a lawyer. However, if I am a convicted drug smuggler I can practice my trade with Air Canada, subject to your scrutiny.

Mr. Fernie: I am not saying that, sir. That person may be, as you put it, practicing his or her trade. The person has been convicted and has served time or has paid his or her debt to society. That is why we have waiver laws. If this person gives us information that he or she was convicted of the importation of narcotics, rest assured that our branch would definitely scrutinize that individual more so than we would a lawyer.

Senator Meighen: I could not practice as a lawyer if I were convicted of a criminal offence.

Mr. Fleshman: To summarize what Mr. Fernie is saying: We will adhere to the laws of Canada as we consider people for employment.

It is difficult to answer the speculative question as you have posed it. The issue is whether we would hire the person in this speculative situation. We take our hiring practices seriously. We take our commitment to the public and to the government seriously. We manage responsibly.

Senator Banks: I want to ensure that I understand the answers to Senator Meighen's questions, and the reasons for the answers to Senator Meighen's questions. Part of the answer to his question is that there are circumstances in which Air Canada may employ in its baggage handling system a convicted drug smuggler. That is part of the answer that you have so far given.

Is the reason for you saying that here today only because you are worried about what the implications of labour law would be if you were to say that Air Canada would, under no circumstances, employ a convicted drug smuggler in the baggage handling area of its operation; or is Air Canada simply being munificent and trying to rehabilitate convicted drug smugglers?

Mr. Fernie: Senator Banks, Air Canada, in the hiring of employees, is compliant with all federal statutes and labour statutes in Canada. We are proud of that, and we will continue to do that.

Some individuals have a history of criminal activity but they fall under the same guidelines as everyone else applying for work.

Senator Banks: We are talking about drug smuggling in particular.

Mr. Fleshman: I personally am not in a position to speculate on that exact scenario or answer, from the legal aspect, about what we would do corporately. My opinion is that we evaluate the employee as a potential employee as a whole. That particular part of that individual's life would be considered against others factors. I would argue that there are many other people who are not convicted drug smugglers, and I will just leave it at that.

Senator Banks: Would you undertake, please, to let us know, the circumstances in which you would hire such a person. I know it is hypothetical, but Canadians would be happier to hear that Air Canada's corporate policy is that they would not, without equivocation, engage a convicted drug smuggler to work in the baggage handling area or the other place.

I would feel fairly confident and comfortable if the personnel office tell us the reason that they do not want to say they would never do that is because of fear of contravention of the labour laws as opposed to any other reason.

Thank you very much.

Senator Meighen: Are you able to tell me whether, in the past, your employee ranks have been infiltrated by organized crime? In your opinion, is organized crime presently endeavouring to infiltrate your ranks?

Mr. Fleshman: At this point in time, I have no knowledge of any infiltration or the fact that anyone is trying to infiltrate.

Senator Meighen: Is your answer that you have no knowledge of any past infiltration or any present attempt to infiltrate?

Mr. Fleshman: That is the answer; I have no knowledge of either past or present attempts to infiltrate.

The Chairman: That is in your capacity as General Manager, Customer Service. How about Mr. Fernie?

Mr. Fernie: Yes, I do have knowledge of that. An incident was well publicized two years ago, in 2000, in which the Royal Canadian Mounted Police and Air Canada corporate security entered into a joint investigation dealing with internal complicity in the importation of narcotics out of Jamaica. A number of arrests were made of both civilian and Air Canada employees.

They are before the court currently. I cannot really discuss the matter, Mr. Chairman.

The Chairman: How many employees are there in the area for which you are responsible, Mr. Fernie?

Mr. Fernie: Within the central region, there are only two investigators — Neil Armstrong and myself. We have offices in Vancouver and Montreal.

We bring people together to eliminate a problem. For example, the drug investigation that I alluded to minutes ago occurred because of seizures by Canada Customs from our aircraft. We entered into an investigation ourselves and it was Air Canada who brought the RCMP and the various agencies together. It came to what I felt was a successful conclusion. These matters are before the court.

We do our own internal profiling dealing with drug smuggling or any other criminal activity. Again, we are the private sector. Air Canada employs a number of retired RCMP officers. My background in the RCMP was drug enforcement and, when we see signs similar to what we saw in our previous lives, we bring a package to the police authorities so that they will, hopefully, enter into a major investigation. We have had examples of that over the last three years.

The Chairman: You and another individual take care of how many airports?

Mr. Fernie: Within our central division, we look after Manitoba and Ontario, a portion of our U.S. site, the Caribbean, Mexico and South America.

The Chairman: That would be a total of roughly 20 to 25 airports.

Mr. Fernie: It is in excess of that, sir.

The Chairman: How many airports is it, please?

Mr. Fernie: I would say that it is about 30 to 35 airports.

The Chairman: There are two of you to cover 30 to 35 airports?

Mr. Fernie: Yes. Again, we work with the authorities and assist them when required. We also seek out the assistance of our management staff and other personnel.

The Chairman: Do you audit Air Canada's procedures?

Mr. Fernie: Yes, we do our security audits at various airports that we attend.

Mr. Fleshman: That is not just a security requirement. Airport staff perform audits at each of our airports. We audit ourselves and we audit our security contractors.

The Chairman: Could you be more specific, Mr. Fleshman?

Mr. Fleshman: Generally, we audit the bag acceptance process that takes place with our agents and we audit the security checkpoint operation to ensure that the contractors are meeting Transport Canada requirements. To point out what Iain was saying, we work in conjunction with the law enforcement groups at a particular airport as well as with Transport Canada. We do not look at it as a community requirement, because it is not specifically an individual organization's requirement.

The Chairman: On the subject of the audits, information about an audit, which related to 32 airports, was made public last November in the United States. During that period of time, auditors were able to get guns through the screening checkpoints for 30 per cent of their tests, knives for 70 per cent of their tests, and fake bombs for 60 per cent of their tests. These tests were conducted by transportation department officials in the United States at 32 airports.

Do you have figures on the success rates of your audits?

Mr. Fernie: I believe you are referring to the infiltration test conducted by FAA inspectors.

The Chairman: Yes, I am.

Mr. Fernie: You would have to direct that question to Transport Canada's inspectors. We know that they do infiltration tests at our various screens and they keep a record of the results.

The Chairman: Do you do infiltration tests when you do an audit? Perhaps you could describe an audit.

Mr. Fernie: We do not do our own infiltration tests. Transport Canada deals with a weapon of some sort — perhaps a handgun. We are not authorized to carry weapons, so we do not have that power. We will do our testing as if we were passengers to know if our people at the various sites in the U.S. and in Canada are complying with the measures.

The Chairman: We heard testimony that false positives occur from detection machines as often as 25 per cent of the time. Is that your experience when you do audits?

Mr. Fernie: I cannot answer that question.

The Chairman: On what grounds?

Mr. Fernie: I have no knowledge of that. I do not know what the failure rate is.

The Chairman: Is there someone at Air Canada who knows the percentage rate of failure?

Mr. Fernie: I do not know who could answer that.

The Chairman: As to the effectiveness of X-ray detection, during the period of time when that was your responsibility, how frequently did you find the equipment functioning or malfunctioning?

Mr. Fernie: That would come under the responsibility of Mr. Claus Hoff in Toronto, and he reports directly to Mr. Fleshman. He would have those records, or indications of the rates of failure. We do receive reports from Transport Canada with respect to their infiltration tests where our screeners fail to meet or comply with the emergency measures. We do receive reports from them of a failure.

Mr. Fleshman: It is not a percentage of failure, but we are apprised of failures immediately. We then work with our contractors to understand the reasons and to resolve the failures. It is not as if we are at 99.99 per cent acceptable. We are involved with the individual failures. For example, Air Canada will board roughly 27,000 customers at Pearson today. We do not factor the failure on a percentage pass-fail situation. We look at the individual situation to know what caused it. There is a thorough review of the situation.

The Chairman: For the record, how many passengers do you board on an average day at Pearson?

Mr. Fleshman: Right now, it is between 26,000 and 35,000. That is just Air Canada, Jazz and Tango.

The Chairman: Do you have another one that you want to tell us about?

Could you also tell us approximately how many Air Canada employees are airside on a given day?

Mr. Fleshman: There are in the neighbourhood of 2,500 employees.

The Chairman: How many would be flight crew on a given day?

Mr. Fleshman: We have about 350 departures; double that to know the number of pilots; multiply that number by two to take in inbound and outbound flights; and add the flight attendants, which would be an average of 5 per departure.

The Chairman: What is the total number of employees?

Mr. Fleshman: At Pearson, it is in the neighbourhood of 3,500 to 3,600. That includes our people organization that works just off-site, but they are included in the numbers — people looking after technical operations, grounds equipment, cargo, et cetera.

The Chairman: Would the total include contract personnel, such as food suppliers?

Mr. Fleshman: No, they are not in that number.

The Chairman: In addition to that, do you have any estimates of the number of food suppliers that might be directly involved with Air Canada?

Mr. Fleshman: We have one supplier, but I do not know how many employees they have.

The Chairman: Could you obtain that information for us?

Mr. Fleshman: I believe that I could.

Senator Meighen: For the record, is your supplier Cara?

The Chairman: What about other contract employees?

Mr. Fleshman: We have contracts with Consolidated for fuelling and with the airport authority for de-icing. However, I have no idea of the number of employees they have.

The Chairman: What about maintenance?

Mr. Fleshman: We do our own maintenance.

The Chairman: When you refer to maintenance, does that fall come under the airside category? Are those people included in the number you gave us for airside?

Mr. Fleshman: Yes. I presume that you are referring to aircraft maintenance people.

The Chairman: Yes. Do you have other maintenance responsibilities?

Mr. Fleshman: We have ground support, equipment maintenance and building maintenance. We have different areas of maintenance.

The Chairman: Is that all in-house?

Mr. Fleshman: Most of it is in-house.

The Chairman: Is most of it airside?

Mr. Fleshman: Most of those employees have access to airside, yes.

The Chairman: Are there any other questions?

Senator Atkins: Could you compare the pre- and post-9/11 passenger loads?

Mr. Fleshman: I am speaking of the peak summer numbers. Thursday will be our largest day this month. We are close to returning to the pre-9/11 volumes at Pearson for Air Canada.

Senator Atkins: Does that impact on other support services for the airline? After 9/11 you had cutbacks.

Mr. Fleshman: All of our vendors have experienced the same financial constraints that we have.

Senator Atkins: Are you back to pre-9/11 volume?

Mr. Fleshman: Yes.

Senator Day: In relation to your corporate position in the interpretation of section 4.8(1) of the Aeronautics Act, did you have a discussion with Transport Canada? Does Transport Canada share your position or that of the Air Transport Safety Agency?

Mr. Fleshman: I am not aware of that. I did not personally talk to anyone at Transport Canada and I am not aware that corporate had a discussion with them either.

Senator Day: When you discussed this at the meeting on Friday, was there any discussion about Transport Canada's position in respect of the interpretation of that section?

Mr. Fleshman: I do not recall us having any discussion about that at all.

Senator Banks: I was confused by your answer to the chairman's question and I am sure it is just because I did not hear. On one occasion you said 2,500 and then you said 3,500. Is it 2,500 airside and 3,500 allside?

Mr. Fleshman: I took the question as how many people on a given day are employed. On a given day, roughly one- third of our employees are on their days off because it is a 24/7 schedule. I would like to point out that those are my best estimates, based on some organizations that are outside of my direct responsibility.

The Chairman: We understand that and we were not expecting specific or precise answers.

Senator Banks: I have one last question, Mr. Fleshman, which I am sorry to have to ask. You are obviously a responsible management person or the company would not have sent you here. However, it bothers me that Mr. Fernie is aware of instances in which there have been attempts at infiltration by organized crime of your workforce and that you, according to what you said, are not aware. I am assuming that you will bring yourself up-to-date on that information, because it disturbs me. I am hopeful that it disturbs you.

Mr. Fleshman: Yes, I did not know. My role has changed since, I believe, the time to which Mr. Fernie was referring, but we will be talking.

Mr. Fernie: Senator Banks, on that note, Mr. Fleshman's predecessor was fully briefed of those types of situations. Due to the integrity of the police investigation, I elected to tell one senior management person, and that was Mr. Fleshman's predecessor.

Senator Banks: Thank you for that comment.

The Chairman: Does the committee have any further questions for this witness?

Senator Meighen: What measures, if any, have you taken since 9/11 with respect to passes for your employees?

Mr. Fleshman: Are you referring to passes on board airplanes or passes to access the work area?

Senator Meighen: I am talking about Air Canada employees, all of whom have security badges dangling on their necks. You have employees who work airside and some who work in the terminal.

Mr. Fleshman: We have multiple definitions of employees.

Senator Meighen: You also have multiple types of passes.

Mr. Fleshman: I thought that you might be referring to flight passes for travel.

Senator Meighen: I am not looking for a freebee.

Mr. Fleshman: All of our security badges are provided by the airport authority. When we go through the process of employing anyone, including myself, that employee has to go through the background checks, as prescribed in the Transport Canada Regulations. Until a person has that pass, they either need to work outside of the secured area or, at times, they can be escorted within the secured area.

Senator Meighen: Presumably, there are different passes for different areas.

Mr. Fleshman: Yes. Prior to my current position, I could not arbitrarily access a checkpoint at Terminal 3 when, in fact, I had no business there.

There are some restrictions on passes such that employees are allowed access to only the areas where their work is conducted.

Senator Meighen: What technical improvements, if any, have been made to these various passes post-September 11?

Mr. Fleshman: None that I know of. However, I would point out that the technical conventions that we were once afforded prior to September 11 are no longer in place. There is human intervention to reinforce the procedures outlined.

Senator Meighen: Help me, chairman. What is the terminology used to describe a chip or whatever is inserted into a pass?

The Chairman: I think it is, ``a chip inserted into a pass.''

Senator Meighen: Do you have ones that can be deactivated and activated at will?

The Chairman: Employees have a pass that is commonly referred to as a ``dumb pass'' but they also have card keys that allow access to a variety of different areas. Is that correct?

New Speaker: Yes, that was my reference. In the past, we were able to program access in. I do not have that with me, but it was part of the pass. Since 9/11, that has been turned off.

Senator Meighen: What happens to your pass, Mr. Fleshman, if tomorrow morning you decide to go and work for WestJet?

Mr. Fleshman: I would have to reapply with the airport.

Senator Meighen: I was thinking more about your Air Canada pass, if you were to move to Calgary and work for WestJet.

Mr. Fleshman: We have a process to follow when an employee leaves whereby all of these things, including passes, are accounted for.

Senator Meighen: Are passes always recovered the day after an employee leaves?

Mr. Fleshman: To the best of my knowledge, sir, it is part of our protocol. If, in fact, that does not happen, we are relentless in rectifying the situation, and we also report it to the airport authority. The airport authority has a list of passes that have not been accounted for.

Senator Meighen: Is that by number?

Mr. Fleshman: I do not know exactly how they are tracked or monitored.

Senator Meighen: Do all passes have a photo ID on them?

Mr. Fleshman: I believe so. Mine does. It is not a good one though.

Senator Meighen: When you go through a pass check, does a person verify your number against the invalid numbers?

Mr. Fleshman: Yes, I believe that is what they are doing.

Senator Meighen: Is there a human who checks your face against the picture and checks the number against a list of numbers?

Mr. Fleshman: I am not sure what that list is, sir. I hate to be blunt, but I presume that is what they are doing.

The Chairman: Mr. Fernie, would you to like to give us the theory now?

Mr. Fernie: The GTAA has compiled a list of passes that have been lost or not turned in. They are kept at various checkpoints where personnel can gain access to airside. A security guard verifies the photograph is the person holding the pass and checks it with that list.

The Chairman: Mr. Fernie, have you ever gone through a checkpoint and not had the number on your pass checked?

Mr. Fernie: No, sir, because they know who I am.

The Chairman: Do you think Air Canada employees have their passes checked against the number every time?

Mr. Fernie: From my observation, yes, they do.

Senator Meighen: You said that there is a person checking passes. Is this person an employee of Air Canada?

Mr. Fleshman: No.

Senator Meighen: Who would he or she be an employee of, the GTAA?

Mr. Fleshman: Right now it is done by one of our security firms. Whether the individuals are under the employment of the airport authority or of the airline, they are under the employment of the airport authority.

Senator Meighen: Are there any plans to improve the technology of the passes that you have now?

Mr. Fleshman: That is covered under the umbrella of things I mentioned earlier, as we migrate to the facility that is scheduled to open in October 2003. As to whether some technologies come on board prior to that, many discussions have taken place. I do not want to speculate on where the airport will go with that.

Senator Meighen: Are all of the swab machines, for want of a better machine, being utilized now?

Mr. Fleshman: I do not know about scanners, but all of the serviceable ones are being utilized.

Senator Meighen: How many are there, approximately?

Mr. Fleshman: I do not recall.

Senator Meighen: At what percentage of access points are they available?

Mr. Fleshman: One hundred per cent at Terminal 2 and Terminal 1.

Senator Meighen: That covers Air Canada,

Mr. Fleshman: I cannot answer for Terminal 3, yet.

The Chairman: Are your Tango operations in Terminal 3?

Mr. Fleshman: Yes, they are. I just do not recall seeing them, sir.

The Chairman: Gentlemen, I thank you for appearing before the committee today. We expect to hear from you again, and we look forward to that opportunity.

We will now hear from Mr. Audcent.

Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Good morning, honourable senators.

The Chairman: Mr. Audcent, you are well-known to all of us. Could you give us a brief description of what we are hearing when the witnesses tell us that they cannot testify because of section 4.8(1) of the Aeronautics Act? Could you describe the obligations of witnesses when they appear before parliamentary committees?

Mr. Audcent: Certainly, Mr. Chairman.

The issue was drawn to my attention late last week. I will begin with section 4.8 of the Aeronautics Act, which states:

No person other than the Minister shall disclose to any other person the substance of any order that has been made by the Minister under subsection 4.3(2) in respect of aviation security unless the disclosure is required by law or is necessary to give effect to the order.

When I took cognizance of that, I realized that it obviously has to be balanced with the obligations that witnesses have before parliamentary committees. The committee is a body of the Senate, and today's proceedings are, therefore, proceedings in Parliament. Witnesses have an obligation to speak.

In order to attribute authority, the best I can do is to refer to the Report from the Select Committee on the Official Secrets Acts, U.K. 1939, in which it was reported that:

``Nothing said in such can be treated as an offence by the ordinary courts''...It is a question of jurisdiction and not merely of personal privilege. Words spoken in the House of Commons are cognizable by the House alone and exclusively.

Privileges enjoyed by either House of Parliament or by the members of either House in their capacity as members can be abrogated only by express words in a statute.

I should like to point out that the reference is to the U.K. House of Commons, but we have the same privileges in Canada. In addition, the Senate of Canada has the same privileges as the House of Commons of Canada; ergo, this statement is applicable.

I would also point out that parliamentary law provides that the privileges of members also apply to officials and to witnesses. Anything that the witnesses say in your official committee proceedings are protected and cannot be taken cognizance of in any court or place outside of Parliament.

I have one final comment. I am not aware of the issue of the inter-relationship between section 4.8(1) of the Aeronautics Act and parliamentary privilege ever being examined. However, I am aware of three cases where parliamentary privilege came into conflict with public security secrecy laws. One of those cases was in respect of the Official Secrets Act in the United Kingdom; one was in respect of the Official Secrets Act in Canada; and one was in respect of a regular Canadian statute.

In each case, it was parliamentary privilege that trumped the statutory law. Therefore, the witnesses are protected when they speak to you.

Senator Banks: They are protected, but if they are unwilling, notwithstanding the protection, to answer a question fully, is there any compulsion that we enjoy doing that?

Mr. Audcent: The committee has the power to summon witnesses and, when witnesses are before it, to order those witnesses to answer their questions. However, the enforcement procedures belong to the Senate.

Senator Meighen: What enforcement procedures are available to the Senate, as a whole?

Mr. Audcent: I will answer that with a generic comment: It amounts to contempt proceedings.

Senator Day: The public policy reason for section 4.8, as I would understand your comment, would be to protect the general public by not divulging certain security procedures, whereas we seem to be focusing on protecting the witnesses by parliamentary privilege. We are balancing the public policy issue that is in the Aeronautics Act versus protecting the witness. If we decided to subpoena witnesses to give testimony, we could assure them that, by virtue of parliamentary privilege, they will not get themselves into any hot water. However, we would still have the other public policy issue of the information that they may give.

Mr. Audcent: That is exactly right, Senator Day. There is a difference between the legal position and the policy decision. I would refer you to the House of Commons debates, March 17, 1978, where the Honourable S.R. Basford referred to the need to, as he said:

...strike a balance between the imperative public interest that the national security and integrity of the state ought not to be imperilled and the equally imperative public interest that members of this House should enjoy a freedom of speech commensurate with the necessity of fulfilling our obligations.

Senator Atkins: From what you have heard in the last hour, was it appropriate for them to use section 4.8 to the extent that they did?

The Chairman: I am not sure that is a question that can be put to counsel. It is a question for the committee to determine.

Senator Atkins: I was thinking it was a legal question.

The Chairman: It is fair to say that he is here to advise us in matters of the law, but matters of policy are for us to discuss.

There may be other questions for Mr. Audcent. He also has a copy of this material available for senators if they would like to see it in writing.

The question before us is a simple one. We were presented with, while it was not articulated, an argument that is, essentially, ``Trust them because things are in good hands.'' If we were to trust them, they would ensure that the system is a safe one. The question facing this committee, which we need to consider in the coming days and weeks, is whether that answer is sufficient and whether the public good would be better protected by having a more thorough disclosure of the systems that are in place.

I should qualify that by saying that I do not believe that anyone on this committee is interested in going into details that might specifically jeopardize security or that might cause problems in the protection of the public. We know that a great deal of this information is currently on the public record. People who want to do serious damage to public safety in Canada are sophisticated and have access to the information already. The people who do not currently have the information are the travelling public. Should the public be entitled to know what sorts of measures are being taken to provide them with proper security and protection?

Senator Meighen: Comparisons with other jurisdictions are often invidious, but it is fair to say that the Americans have an even greater concern than we do over security measures, and the openness of their process seems to go far beyond our own.

The Chairman: Without question, the openness of their process goes far beyond our own. I would characterize it, basically, as them saying that there is a problem; steps are being taken to deal with the problem. They have taken a number of steps and will take others in the future to deal with the problem.

They are approaching it in a mature and reasonable fashion. The public can then make its own judgments about whether it is being well served. Currently, it is very difficult for the public to make a judgment at all. Certainly, I believe this committee is having difficulty making a judgment about it.

Senator LaPierre: There is also something else, Mr. Chairman, and this is why I walked out, sir. It was an insult. This committee is not a little road show. It is an official committee of the Parliament of Canada and of the Canadian people through the Parliament of Canada. I found their answers to the questions that you were asking in good faith, insulting to you as a person and as a senator, to the other senators who are here, and to the idea that a committee may inquire into public matters and be able to ascertain the information knowing perfectly well that the committee, as you have said, would not be asking questions that would endanger the public good and the public security of the Canadian people. This is why I was distressed.

Had I stayed, sir, I would have been much ruder.

The Chairman: We have a group of witnesses waiting to speak to us in the other room, in camera. Before we move to that, are there any other comments or questions that members of this committee would like to make here?

Senator Banks: I am sure that this has been answered, but I am a not clear on this.

Mr. Audcent. I assume by what you said that no witness sitting here would be subject to any sanction on the basis of any answers that the witness gave us. Is there any possibility that Air Canada would be subject to any sanction by virtue of a witness' testimony before our committee?

Mr. Audcent: Honourable senators, I will give you the legal answer but, of course, not all sanctions are legal. According to the law, ``No person...shall disclose...'' The person would be committing an offence, not a corporation.

Senator Banks: Corporations are judged as persons.

Mr. Audcent: Corporations are judged as persons, but it would be the person giving the evidence. It would be the person who is making that judgment call as to whether to disclose.

Senator LaPierre: Could there be a contempt charge? When is a witness in contempt of the committee and of the Senate?

Mr. Audcent: That is a very valid question, senator. If you were dissatisfied that a question had not been answered, you could so report to the Senate; the Senate could hold contempt proceedings; and the Senate could find that there was contempt.

The Chairman: You may have missed it, but Mr. Audcent has a paper that he will provide to you on this subject.

The committee continued in camera.