Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 20 - Evidence (December 11 meeting)


OTTAWA, Tuesday, December 11, 2001

The Standing Senate Committee on Transport and Communications met today at 9:32 a.m. to study Bill C-44, an Act to amend the Aeronautics Act.

Senator Lise Bacon (Chairman) chaired the meeting.

[Translation]

The Chairman: I would like to welcome you to this meeting to consider Bill C-44, an Act to amend the Aeronautics Act. This bill comprises subsection 4.83 of Bill C-42, the Public Safety Act, and has been taken from it to constitute a separate piece of legislation.

The purpose of the proposed legislation is to enable Canadian air carriers to comply with American legislation in American airspace. As a result of recent legislative amendments, the United States now require information about passengers and crew members before they are allowed to land on U.S. territory. Cross-border flights would still be possible without the proposed changes but there would be considerable delays incurred. Because of the date the American legislative amendments come into effect, it is important that Canada amend its legislation as soon as possible.

[English]

For Canadian carriers to be allowed to comply with the American requirement, they must be relieved of certain requirements of one part of our privacy legislation, the Personal Information Protection and the Electronic Documents Act. This is what Bill C-44 does. The text of the bill is very short, only one clause. While the goal of the bill is reasonable, there are nevertheless privacy issues that we must consider. It is notable that an amendment was made in the House of Commons to further restrict how the information that has been collected may be used and disclosed.

For our review, we will hear this morning from Transport Canada, followed by representatives of the air carriers. Questions will follow each presentation.

We will now hear from Transport Canada. Please proceed, Mr. Elliott.

[Translation]

Mr. William Elliott, Assistant Deputy Minister, Safety and Security Group, Transport Canada: We are pleased to appear before you today to discuss this important bill.

[English]

The Aeronautics Act, which this bill would amend, is administered by the Minister of Transport. Its provisions address civil aviation safety and security and, more broadly, the promotion of aeronautics.

As you are aware, as a result of the terrorist attacks on the United States on September 11, the United States adopted the Aviation and Transportation Security Act. Among other things, the act establishes requirements respecting the provision of information on passengers and crew on-board flights entering the United States from outside of the United States.

Currently, the Canadian Personal Information Protection and Electronic Documents Act would not permit Canadian carriers to provide the information required by the Americans. In keeping with the Minister of Transport's role in the promotion of aeronautics, the minister supports this bill as it would, notwithstanding the Personal Information Protection and Electronic Documents Act, permit the reporting of required information to the United States authorities. Similarly, the act could allow, subject to regulations, for the providing of passenger and crew information to other countries.

The bill is structured so that information required by the laws of a foreign state could be provided to the foreign state if the type or class of information and the foreign state are authorized by regulation.

I believe honourable senators have been provided with a proposed draft regulation. The draft regulation identifies information that may be provided automatically relating to passengers and crew, and information that may be provided upon request concerning individuals. This latter category of information is often referred to as the passenger name record, or PNR.

I can inform you, honourable senators, that the Privacy Commissioner reviewed the provisions of Bill C-44 as it was first introduced in the other place and made certain proposals to the Minister of Transport. Those consultations resulted in an amendment being introduced at the committee stage of the other place. The Privacy Commissioner has given that amendment his approval. The purpose of the amendment was to ensure that any information passed on to the United States competent authority could only be returned to a Canadian government department for the purposes of national security, public safety or defence.

The intent of the bill is to enable Canadian air operators to comply with evolving security practices and legal requirements that are being established around the world, particularly in light of the tragic events of September 11, 2001, in the United States of America. The proposed amendment would enhance the ability of Canadian carriers to work with our partners in other countries to take positive steps to deter and detect terrorists. This is in the best interests of aviation security and of an efficient civil aviation transportation system.

Madam Chairman and honourable senators, we would be pleased to respond to any questions you may have on the bill.

The Chairman: What is the situation today. I believe some passenger manifest information is already provided to American authorities. What is sent, who sends it, how is it sent, and when is it sent?

Mr. John A. Read, Director General, Transport Dangerous Goods, Safety and Security Group, Transport Canada: The situation is interesting in that, under the Aeronautics Act, when one of our Canadian aircraft enters American air space, they are required to comply with those portions of American law that will conflict with Canadian law insofar as aeronautics are concerned. Today, when a Canadian aircraft enters American air space, they can legally provide all the data that the United States is now announcing they would like to have. The major concern is that the United States has made it clear to us that they wish this information in at least a minimum time before the plane departs from Canada. The number that we have heard, which is not formal or official, is that they would like an initial report four hours before the plane is due to arrive in the United States. If at the time of departure there needs to be a final tune-up to the answer, then that would be made.

Today the information that the U.S. requires can be obtained legally as the plane enters U.S. air space. We need to make this change in order to comply with the time frame they require. They point to the example of a plane flying from Vancouver to Seattle, where there is almost no time to even review any data they would receive, should they get the data when the plane takes off, because the flight time is 20 or 30 minutes. Today, the information is provided in that fashion. The information is also provided while on the ground in Canada through pre-clearance. Therefore, there are two ways in which data is now given to the United States quite legitimately.

The Chairman: If I understand correctly, some basic information is described in Schedule 1 of the regulations. Information provided on request is described in Schedule 2 of the regulations. Does "PNR" stand for "passenger name record"?

Mr. Read: Yes. Unfortunately, the term "passenger name record" is not defined. Now that the United States has enacted their aeronautics security act, there will be representations to the International Air Transport Association and the International Civil Aviation Organization, both of which would like to have a definition of "passenger name record." It would be easier for everyone if we knew exactly what was in a passenger name record.

As you pointed out, pursuant to the American legislation, basic information must be provided for every person, and that is the basic passport information. There is then the second category of "passenger name record." For every passenger, a file is automatically created. It contains information regarding how you paid for your ticket, the destination of the ticket and other such information. If you book through a travel agent, more information may be collected, such as who you are travelling with, whether you require special meals or have special needs and whether you are carrying excess baggage - whatever information is collected in the normal course of confirming you as a passenger.

The PNR contains five mandatory fields, including the passenger's name, a contact phone number and the destination. I cannot remember the other two. In addition to the five mandatory fields, there are several other non-mandatory fields. There are half a dozen reservation systems throughout the world that register passengers for flights. In the process of doing that, they gather certain information. This information is notionally called the "passenger name record"; it is the record with your information.

Senator LaPierre: Do the Americans want that information?

Mr. Read: The American legislation requires that, before a plane lands in the U.S., they have the basic data, that being the passport information. It also provides that, upon request, they be given the passenger name record for a specific person. That is what they are requiring.

We have structured the draft regulations in two parts. There is Schedule 1 and Schedule 2. Schedule 1 is the basic passport information. It is called advance passenger information. It is essentially an identification of the person. Schedule 2 of the regulations lists the elements that we believe the United States will want as a passenger name record. Although they have not yet formally given us their list, they have indicated that what is contained in Schedule 2 is their list. That list was built from the arrangements and agreements now being made with respect to pre-clearance. The data elements you see in Schedule 2 are those involved in pre-clearance.

The Chairman: Does Canada require such information from foreign carriers?

Mr. Read: Canada is prepared to require such information. Recently, Canada amended immigration and customs legislation to allow them to access information concerning passengers before their plane arrives in Canada. They have not yet finalized their regulations to specify the data elements they wish to receive.

Senator Oliver: I basically agree with this legislation. I think it is important and I know the reason it was brought forward. Last week, Senator Finestone and I were in New York at the site of the attack. It is awesome to see, and very chilling.

I do have some concerns, however, with regard to civil and human rights. In particular, since I am a Black person, I am very concerned about the problems of racial profiling.

Mr. Elliott, what mechanisms are in place in this simple statute to ensure that an individual or a member of a particular group will not be specifically profiled and that information will not be given in an attempt to castigate a particular individual or group? Where are the protections? Where is the oversight?

We have the Canadian Charter of Rights and Freedoms, human rights legislation and international covenants that protect these rights. How will those three things protect individuals from racial profiling under this legislation? In particular, what circumstances will trigger the necessity for additional information under Schedule 2 to be given to someone?

Ms Sherrill Besser, Senior Counsel, Legal Services, Transport Canada: Thank you for the question. I will answer specifically rather than generally talking about the Charter.

Our legislation says that the information can be provided only in accordance with our regulations. The information is being provided to a third country because of their laws. If we believe that a third country is targeting or profiling a particular group of people, we have the authority to remove that country from the regulations.

Senator Oliver: Am I correct that currently there is only one country in the regulations?

Ms Besser: Yes.

Senator Oliver: How does another country get in? What is the test?

Ms Besser: If, for example, Great Britain passed a law similar to the law of the United States, we could add Great Britain to the list of countries that would be entitled to receive this information. We would only do that if we felt comfortable that Great Britain would apply their law with regard for values that we as Canadians consider essential. That is the protection we included - access in accordance with our regulations.

The data elements can be restricted as well on a country basis. We would not provide information about any passenger who, to use your example, is Black, or is Muslim or Jewish. We would not provide that information because that would be contrary to our values as Canadians.

Senator Oliver: How will the Canadian Charter of Rights and Freedoms, human rights legislation and international covenants protect Canadians under this legislation?

Ms Besser: There is nothing in proposed section 4.83 or in the regulations that is discriminatory. We are protected against discrimination for immutable characteristics. There is nothing that discriminates.

Mr. Read: Further to my earlier comment, currently the United States can and does collect all of this information.

Senator Oliver: Even the information in Schedule 2?

Mr. Read: Yes. Currently, when a Canadian aircraft enters foreign air space, it is required, under Canadian law, to respect the laws of that foreign state when they are in conflict with regard to aeronautics. When a Canadian aircraft enters American air space, it must comply with American law. We are doing that today and providing all this information. Even in the absence of this bill, they will be providing all this information.

For protection, we must depend upon the United States, which also has a very good record of protecting the privacy of individuals. They have stated in their act that they are gathering this information uniquely for the purpose of transportation security.

They will gather the information regardless of this bill. We are doing this so that our airlines will not be delayed by a notional four-hour rule when going into the United States. We are not giving anyone anything that they cannot already gather. We are merely giving it to them now in a formalized structure. They have a formal act of Congress that establishes the conditions under which they will gather the information and what it will be used for.

The more interesting question that then comes up, which was the subject of the concerns of the Privacy Commissioner and which I think touches on your question, is whether this information could be repatriated into Canada. He said that if that were possible, he would like some restriction on how it could be repatriated. That was the subject of the amendment to the bill in the other place. The Privacy Commissioner recommended to the Minister of Transport that it be allowable to return this data to a government institution only if it is to be used for the purposes of national defence, national security or public safety. That was accepted and that is the current situation.

Senator Oliver: You are senior officials from Transport Canada. You and your personnel will be implementing and dealing with this bill should it become law. What criteria will you use in your department for determining which agencies of a foreign government are so-called competent authorities? What tests will you apply?

Mr. Read: It is normal practice in international affairs to register a competent authority with authorities such as the International Civil Aviation Organization and the International Atomic Energy Agency. It is essentially a technical term. For the International Atomic Energy Agency, the Government of Canada has two competent authorities registered internationally. One is Transport Canada, for the transportation of radioactive material, and the other is the Canadian Nuclear Safety Commission, for the safety of packaging.

The competent authority in Canada for aviation is Transport Canada. The competent authority in Canada for marine safety is also Transport Canada. The phrase "competent authority" is well known within the transportation community. It refers to an international body where we have deposed the name of the competent authority. It is clear in the American act what their competent authority is. It is their commissioner of customs.

We have heard this question before and have discussed the possibility of putting in the regulations, in addition to the name of the country, the name of the competent authority.

Senator Oliver: Why did you not do that?

Mr. Read: We have a proposed regulation that is now being consulted on. The first comment on this regulation that I heard is, "Why do you not name the competent authority in the regulations?" I think it is a good idea. There is nothing to prevent us from doing that and I expect we will be doing so.

Senator Finestone: I have some very strong concerns. I think that, in the circumstances, we might be doing the right thing, but I want to be sure. Please explain to me what is meant by "government institution."

Ms Besser: A government institution is defined in the Privacy Act as including government departments and all the entities that are set out in the schedule to the Privacy Act. I could list some of them for you.

Senator Finestone: I do not want a long list. Mr. Read said there is nothing new, that this information is already gathered and that we are merely formalizing what they have already gathered about us. I know records are kept on all of us, about our shopping habits, our eating habits and everything else, but what do you mean when you say that this is nothing new, that the United States already gathers this information and we are merely formalizing the process and the information can be given to a government institution? What institution is that? Is it the CIA?

Mr. Elliott: To clarify, the information in the passenger name record is commonly gathered by carriers, including Canadian carriers, and by reservation systems. Information is currently being provided to American authorities by Canadian carriers in the United States. To my knowledge, the information is not being provided in Canada by Canadian carriers to U.S. officials since to do so would be a contravention of Canadian law.

Senator Finestone: Back up, Mr. Elliott. You say they already have this information, that it is not legal in Canada but that they can do it through the American system. What do you mean?

Mr. Elliott: I did not mean to say that the gathering of information by Canadian carriers is contrary to Canadian law. Canadian law prohibits the provision of that information, in the case in question, to American authorities. That is Canadian law applicable in Canada. When Air Canada, for example, is operating in the United States, they are subject to American law. Therefore, they can now provide information to American authorities when they are in the United States. Carriers are now being asked to provide that information to American authorities in advance of flights leaving Canada.

Senator Finestone: I understand that. Air Canada is a fully owned Canadian carrier. Is it correct that, if I purchase a return ticket in Canada for travel into the United States, when I board in the United States for my return to Canada the American authorities will have the right to information that they would not be entitled to if I were travelling between Toronto and Montreal?

Mr. Read: Yes.

Senator Finestone: Therefore, it is already okay and it is reasonable in the circumstances.

Mr. Elliott: Yes, that is our view.

Senator Finestone: Who has the right to that information? Can Canadians demand to see and have a copy of all the information the Americans have about us?

Mr. Elliott: I do not believe we can competently answer with regard to the access regime in the United States of America.

Senator Finestone: There will be a file compiled on each passenger, to which the U.S. authorities will be given access. Who owns this file; is it Canada or United States? Does it become the property of the CIA or CSIS?

Mr. Elliott: The Government of Canada does not have this information. Passenger name record information is gathered by carriers and by reservations systems. The proposed regime is for carriers and reservation systems to provide information to the U.S. authorities. Under the U.S. legislation, the information is gathered for purposes of aviation safety. It can be shared, pursuant to the U.S. legislation, with other federal agencies, but it is restricted for the purpose of protecting national security.

Senator Finestone: Mr. Elliott, I agree that this is a good idea and reasonable in the circumstances. However, we place a value on rights and freedoms, and particularly on privacy. Loss of privacy can be a threat to democracy. Our questions are pertinent and important. I was glad that the Privacy Commissioner brought concerns to your attention. Once your privacy is lost, you cannot recover it.

We need to ensure that what we are doing, given the present circumstances in which we live and the heightened fears of citizens, is proportional and reasonable and right, having regard to the fact that privacy rights are not absolute. Can we be sure that this is okay?

I thought it was okay until you said that they have all this information anyway. You do not obtain permission from passengers to release that information. Is that reasonable in the circumstances?

I am much happier to know that that information, which is on my passport and in many other places, is being provided by Canadians for Canadians, by right. It makes me very uncomfortable to know that they already do it.I was comfortable with this bill until I heard that.

Mr. Elliott: The uses to which information can be put by the Government of Canada or institutions of the Government of Canada was the subject of the amendment introduced as a result of discussions with the Privacy Commissioner. There are restrictions on the use of that information by the government or government institutions. As we have indicated, it can be used only for the purpose of protecting national security or public safety, or for the purposes of defence.

With respect to the well-founded concerns about information provided to foreign jurisdictions, in this case the United States of America, as my colleague has indicated, Canadian carriers are required to abide by the laws of the United States of America when operating in the United States of America.

Senator Finestone: Is that so in all countries?

Mr. Elliott: Yes.

The agreements that we are formulating with the Americans about what information should be provided by Canada will create the fields of information that will be provided in all circumstances. There are discussions ongoing at the international level of civil aviation to try to create a common standard of PNR in order that there will be a common understanding of that term.

The regulations under the proposed act, as it would be amended, would provide that only information prescribed in the regulations could be provided pursuant to the Aeronautics Act and only to jurisdictions that are also prescribed in the regulations. Those regulations and our legislation are, of course, subject to the Charter, the Privacy Act and the other pieces of legislation and the protections contained therein that were referred to earlier.

In effect, we will have a regime that will restrict the kinds of data that can be provided. Our law, including our regulations, will have a direct influence on what information is requested and gathered, in this case by the United States of America, but potentially more broadly.

Senator Finestone: So the Charter holds?

Mr. Elliott: Yes.

Senator Gustafson: Am I correct that the purpose of this bill is for the security of passengers?

Mr. Elliott: As well as crew members.

Senator Gustafson: Does it apply to private planes?

Mr. Read: It applies to all planes.

Senator Gustafson: Does this all go out the window in the case of defence and security? I live about 50 miles from a line of missiles that are set up to shoot down any enemy that tries to enter the United States, and those missiles might drop on my farm.

In the case of defence, the four-hour rule would not apply either way, would it?

Mr. Elliott: I am not sure I completely understand the question. The Aeronautics Act, which this bill proposes to amend, does not deal with military aircraft. It applies only to civil aviation.

Senator Gustafson: That is what I wanted to know. In other words, this all goes out the window in the case of an attack, which is what we are talking about. We are talking about terrorism. We are operating under a different set of rules today than we were four months ago. We have changed our focus.

The Chairman: Is your concern that the Americans can attack us, or that we can attack them?

Senator Gustafson: I want to be sure that the Americans can save us.

Mr. Elliott: As I said, this applies only to civil aircraft. The regime is meant to provide authorities with advance notice of who is coming to their country.

Senator Gustafson: What about people travelling by air from other countries into Canada?

Mr. Elliott: This bill does not deal with aircraft or people coming into Canada. There is another piece of legislation that allows Canadian immigration authorities to gather information in advance on people coming to Canada.

Senator Gustafson: If it is so important to have this legislation to appease the Americans, it is also important to know who is coming into Canada from other countries. Once they are on the North American continent, who knows where they will go.

Mr. Elliott: I agree that it is important for Canadian authorities to get that advance information as well. There are already some legislative provisions and regulations under development that will allow for that. That legislation is under the authority of ministers other than the Minister of Transport. It is largely customs and immigration authorities that are concerned about people coming into the country.

Senator Gustafson: Your use of the word "development" leads me to believe that you are not satisfied with what we have now. If you people do not know what the rules are, we certainly do not.

Mr. Elliott: Perhaps I could just clarify. My understanding is that the immigration legislative authority exists currently. What are being developed are regulations under the Immigration Act. I am not intimately familiar with the immigration legislation or regulatory proposals.

[Translation]

Senator Biron: You have in fact answered the main part of the question I wanted to ask you. The information the United Stsates will receive beforehand, as a result of this security measure, will be information about the passengers, That is the only difference since in any event they receive information when the passengers go through immigration. With this new initiative, information will be sent by computer to immigration officers about passengers considered suspicious so that appropriate security measures may be taken.

The Chairman: Can you confirm that?

Mr. Elliott: Yes, I can confirm that.

[English]

Senator Spivak: At first blush, there did not seem to be many questions here, but there are quite a few.

In this automatic information, following on Senator Gustafson's question, if someone comes here on a visitor's visa and then takes a flight to the United States, is that basic information automatically transmitted through Schedule 1 or not?

Mr. Elliott: That is the proposal, yes.

Senator Spivak: That is automatic. A system should be in place already. It seems to me that we should know who is coming into Canada, because Canada is a launching pad, according to the experts on anti-terrorism, and there are more terrorist cells in Canada than in any other country, except perhaps the United States.

You told us that you do not have information on everyone coming here, that you do not have advance information of people coming into Canada. It is quite easy to get into Canada, we know that already.

Mr. Elliott: Perhaps I could clarify. I indicated that this bill does not deal with that question. In fact, issues relating to people coming into Canada are largely the responsibility of ministers and departments responsible for immigration and customs. They do have legislation, but I am not the appropriate official to speak to customs and immigration legislation.

Senator Spivak: I understand that.

Senator LaPierre: Could I ask a question of clarification? When someone arrives in the United States of America, the application of their regulations is done by departments responsible for immigration and customs, just like in Canada. Is that right? I want to know whether that is true.

Mr. Elliott: The information that is proposed -

Senator LaPierre: I am not talking about this information. You seem to be making a distinction about the responsibility of the Citizenship and Immigration Department in Canada when people come here. You make a distinction that the Americans may have another system that does not involve the immigration services. Am I wrong? That is very important.

Mr. Elliott: I guess I can agree with the factual basis as you explain it. The American legislation talks about information being provided to U.S. Customs, and it provides for the sharing of information. Certainly one of the authorities that information would be shared with in appropriate circumstances is the U.S. Immigration authorities.

Senator LaPierre: And the CIA and the FBI and everybody else on the planet. Thank you.

Senator Spivak: My question has to do with the information provided on request. I was born in Poland. I was an anti-Vietnam War protester. I know that that information exists.

I do not look like an Arab at the moment, but suppose I did and that information was requested about me. How would the Canadian government refuse to give the information? I know that records exist. How does the Canadian Charter of Rights and Freedoms apply in terms of the information that might be requested?

Furthermore, what if an individual were detained, where no one knew anything about the person, and the individual had no right to a lawyer or anything else? That is what is happening in the United States.

The Chairman: We are not going to dictate to the United States what to do in its own territory.

Senator LaPierre: They are dictating to us.

Senator Spivak: What about the Canadian citizen in my example? Information has been requested, the plane lands, and the person is detained. What happens in that event?

The Chairman: The U.S. government can do whatever it wants to do.

Senator Spivak: With a Canadian citizen? That is what I am asking the witness.

The Chairman: With the information that we give them.

Senator Spivak: The information we give them could lead to that. How does the Canadian Charter of Rights and Freedoms apply?

Mr. Elliott: The only information that could be provided pursuant to the proposed amendment to the Aeronautics Act is information prescribed by Canadian regulations under the Aeronautics Act. The proposal set out in Schedule 2 of the draft regulations sets out 29 different fields of information. The sorts of information the honourable senator has raised concerns about are not on that list. Anything that would go on that list, because it is a Canadian regulation, would be subject to the Charter. If it offended the Charter, the regulation and therefore the ability to provide the information could be struck down.

Senator LaPierre: Let us understand each other. This is a pernicious bill. It is completely unnecessary. It is being brought forward largely because we are being blackmailed. The government has fallen to the blackmail of the Americans who have threatened to strip-search every Canadian who arrives in the United States if the authorities do not have this information, and also to spend hours searching their luggage. I do not expect you to answer that. However, I do expect you to understand essentially that the process of that has great danger for our country. You do not seem to understand that, with all due respect.

I want to know about the four hours. What does that mean? Do you have to provide the Americans the information four hours before the plane leaves Canada?

Mr. Elliott: That is their request, as I understand it, yes.

Senator LaPierre: You have accepted that? Yes or no? It is a simple question. Did you accept it or not?

Mr. Elliott: My difficulty, Madam Chairman, is I am not sure, first, that it is up to me or the officials to accept that or not accept it. I have not accepted it. Discussions are ongoing with the Americans. Those discussions are contingent on what Parliament does with this proposed legislation and what the Governor in Council may do with respect to regulations.The short answer to the honourable senator's question is no.

Senator LaPierre: Why did you bring up the four hours if you have no view on the matter and it is not included in the law or in the regulations? I am sorry. This is important.

[Translation]

The Chairman: Explanations were given on that point earlier. Further explanation can be provided, should you so wish.

Senator LaPierre: I want to know why they brought up the "four hours"

The Chairman: He never said "four hours"

Senator LaPierre: They chose "four hours", and then he told me essentially that it is not his responsibility to answer that question . That is what he just said to me.

The Chairman: You will have to ask the minister that question. Keep some questions for the minister. That is a policy question. Officials cannot give you an answer on policy issues.

[English]

Senator LaPierre: The four hours does not appear in the regulations and does not appear in the law?

Mr. Elliott: That is correct.

Senator LaPierre: You have told us that in Canada we do not have the kind of law that they have in the United States.

Mr. Elliott: No. I indicated that there is legislation dealing with immigration, for one thing, that does deal with the provision of advance information on passengers and crew members to Canadian authorities.

Senator LaPierre: Does the American law also allow them to ask for more or other information? Am I right that they seem to have left it open to ask for more information?

Mr. Elliott: The American statute talks about passenger name records and does refer to other information. Section 115.2(f) provides for such other information as the undersecretary, in consultation with the commissioner of customs, determines is reasonably necessary to ensure aviation safety.

Senator LaPierre: Does this law authorize that process, or can we refuse to answer their questions?

Mr. Elliott: Pursuant to the proposed amendment and regulations, the only information that could be provided is the information prescribed by the regulation. If a request were made by U.S. authorities for information not prescribed in Canadian regulations, that information could not be provided.

Senator LaPierre: Thank you very much. It is not an answer, but that is fine.

The Chairman: You can ask those questions of the minister, who will be here tomorrow.

[Translation]

Senator Gill: I would just like to come back to what Senator Oliver said. I think everyone agrees that the world has changed since September 11. I have the impression that Bill C-44 is a result of September 11. Everyone knows that members of the Senate and the Commons went to New York. When they went there, I imagine the first question they asked was whether they were safer than before. Circumstances have changed, and that is very clear.

My question is a follow up to Senator Lapierre's. Carriers have lobbied the government to be able to communicate information prior to the arrival of passengers. There was a significant economic impact, and carriers decided that something had to be done. In any event, as Senator Biron pointed out, whether Bill C-44 comes into effect or not, such information has to be provided. It is a question of national jurisdiction. It is the same situation everywhere, whatever the country. We have to provide the information to the people asking for it. As a result, the carriers pressured the government. From the information you have, is that or is it not the case?

[English]

Mr. Elliott: Yes, that is the case, senator. In our view, the provision of such information under the terms requested by the Americans and set out in the American legislation, with the safeguards proposed in our legislation and regulations, is reasonable and in the best interests of security in North America.

Senator Oliver: In drafting this bill and the regulations, did you consult with other government departments, particularly Citizenship and Immigration and the Canada Customs and Revenue Agency?

Mr. Read: We are in discussion with those two departments with respect to regulations. In Bill C-42, which will eventually come to this place, there are other provisions on data on passengers on a case-by-case basis, again directly linked to terrorist events. Under those regulations, there would be data specified and there are discussions among the three departments. Immigration is also talking about passenger records for people coming into the country and the customs agency is talking about regulations. The concept is to have a definition of "passenger name record" harmonized across the three departments.

Senator Oliver: Will Bill C-42, which we have not yet received, in any way conflict with Schedules 1 and 2 of this bill?

Mr. Read: No. Currently they would be exactly the same, but they may become slightly different if the Americans put a slightly different cast on things. In Canada, it is our goal that the regulations dealing with passenger name records for all three departments will be the same, for events in Canada. For what the United States wants, it may be different. We do not necessarily need to follow the United States for what we will be do in Canada. There could be two slightly different versions, but the hope is, internationally, to establish a common definition for passenger name record.

Senator Oliver: Page 2 of Mr. Elliot's brief reads:

The bill is structured so that information required by the laws of a foreign state could be provided to the foreign state if the type or class of information and the foreign state are authorized by regulation.

Do you in fact have an option? If the Americans say, "We want this information," do you have an option?

Mr. Read: Under the Aeronautics Act, the Minister of Transport has several responsibilities, one of which is to promote aviation. It is not his objective to close down aviation. Four hours is a notional time. It could be two hours or one hour. The point is that it be before departing Canada.

Senator LaPierre: You said something else which is most significant. Did you say that this information will be supplied before the plane leaves Canada?

Mr. Read: The point -

Senator LaPierre: Just answer my question. You confuse me. Before the plane leaves Canada, this information will be provided to the Americans, yes or no?

Mr. Read: It is expected that -

Senator LaPierre: Thank you.

Mr. Read: - that is what the Americans want -

Senator LaPierre: Thank you.

Senator Oliver: - and that is what this bill will permit, yes.

Senator LaPierre: Thank you.

Senator Biron: Under this legislation, if the government of the United States requested my medical records, you would refuse?

Mr. Read: They currently do not fall under the regulations. We would refuse and the air carrier, one would hope, does not have them.

Senator Gustafson: We are dealing with North American perimeter security. Has Mexico been asked for the same information?

Mr. Read: All countries in the world have been asked.

Senator Finestone: I accept this amendment, but that does not mean I am comfortable with it. What are the sanctions if someone provides their medical record? If a malevolent person provides their race, age, creed, information and that information is handed out and gets into the hands of the CIA, for example, what are the provisions envisaged for going counter to the Charter? Is it a criminal cause? Is it a civil penalty? What are the penalties? Are there any sanctions or penalties envisaged on either side of the border?

Ms Besser: I will go back a step. Under the Personal Information Protection and Electronic Documents Act, organizations are only allowed to disseminate information in accordance with the principles laid out in that schedule.

Senator Finestone: Under the principles laid out in Bill C-6, if I understand and remember them, I have to give permission; I have to knowingly provide that information. I am talking about information that has been given about me, maliciously or unintended or intended, to which I did not knowingly agree.

Ms Besser: To comply with the requirements of the American legislation, the air carriers need to be exempt from certain provisions of Bill C-6 in terms of the disclosure, but the air carriers would not have information about you that a third party provided maliciously. The air carriers would have the information about whether you paid by credit card or whether you requested a window seat. They would basically have the information set out in schedule 2 to the regulations.

If Bill C-6 is contravened or if someone believes it is contravened, there is a process under the proposed legislation for the Privacy Commissioner to investigate.

Senator Finestone: It does click in and fall into place, and it would be civil, not criminal. Thank you very much.

[Translation]

The Chairman: Thank you for the explanations you provided to the committee. We shall probably hear the minister tomorrow, which will give you the opportunity to speak with us again.

[English]

We now have Mr. Clifford Mackay and Mr. Robert Davidson. We will hear from you gentlemen, and then we will ask our questions. Welcome to the committee.

Mr. J. Clifford Mackay, President and Chief Executive Officer, Air Transport Association of Canada: I have a brief statement and then I would ask for your indulgence to say a few more words about a particular Canadian bent about which I think the committee needs to be aware.

Bill C-44 is intended to release the airlines from a potential legal vulnerability we have that could arise as we comply with state security agencies that demand information about our passengers around the world. The bill exempts air carriers from the provision of the Personal Information Protection and Electronic Documents Act and the Privacy Act. That is Bill C-6. Without this exemption, it was thought by our lawyers that carriers might be sued by passengers for releasing information those passengers provided in the process of purchasing their tickets.

In recent weeks, the United States in particular has been pressing Canadian carriers to release various kinds of information as part of its greatly increased security efforts. Carriers want to comply and participate with this security effort. Passage of this bill will ensure we are able to do so.

I believe it was already indicated in previous conversation that the implications of not doing so could be quite dramatic on our business and certainly dramatic for inconvenience for our passengers. Therefore, we are obviously eager to comply to the degree we can.

I would like to add one other point, which is peculiar to the Canadian situation. I know members of this committee know the kind of air travel that takes place between Canada and the United States is quite different from the normal "international pattern." With open skies, we have flights to more than 100 destinations in the U.S. Many of these destinations are small and do not have immigration and customs facilities. Therefore, we have a particular problem with all of this.

Other foreign carriers tend to fly into the major hubs from around the world. All of these services are available at these hubs; in other words, there is a place to communicate that information.

We have a particular problem. In many cases, we pre-clear in Toronto or Vancouver, or wherever, and fly into a small city in the U.S. Our difficulty is this: To whom do we send the information? What happens to it at the other end? If there are departure procedures that the U.S. authorities are now considering imposing, how do we comply with them when there is no authority at the other end to comply with them?

We have raised this issue with American authorities directly, and my colleagues are in Washington today to discuss the issue further. We need a deal with the U.S. authorities that is somewhat different from the deal they are talking about for the whole world, because we have a different kind of travel pattern with the United States.

I wanted to raise this issue because it is a uniquely Canadian problem about which you should be aware. However, it does not address the specifics of Bill C-44.

Mr. Robert A. Davidson, Assistant Director, Facilitation Services, International Air Transport Association: In my position at the International Air Transport Association, I am asked to travel all over the world. I work with airlines and customs and immigration agencies in matters involving clearance of passengers and goods across the international borders. Our membership, which is made up of 274 of the world's scheduled airlines, comprises many if not most of the service provided to Canada, both from within the North American continent as well as from abroad.

The issue of electronic data exchange between carriers and governments is rapidly becoming one of the key topics with which our industry must wrestle. While the issues surrounding exchange of information are not new, in fact, I was one of five airline representatives who joined with the U.S. Customs Service and U.S. Immigration in 1989 to start designing the U.S. Advance Passenger Information System that became operational in the third quarter of 1990.

Many of the concerns being raised today are new. The data privacy issues and the personal privacy issues have come up in the last several years and are of significant concern. As Mr. MacKay said, this bill provides our members with a legal safeguard as they seek to comply with foreign government requirements. As you have learned from the previous witnesses, this issue will not be solely a U.S. issue in the days, months and years to come. Legislation is in place and regulations are being drafted to bring advance passenger information to Canada. The same applies in the United Kingdom. At least in the trans-Atlantic markets, we will see advance passenger information going in both directions.

IATA has for years supported the concept of electronic data interchange as a method by which states could enhance their border integrity, ensure aviation security and facilitate and simplify border control practices for the vast majority of travellers. In fact, in 1993, IATA joined with the World Customs Organization in negotiating and approving a set of best practice guidelines that states are obligated to follow as they move into the development of advance passenger information schemes. Those guidelines are still the standard in place today.

Having said that IATA supports the concept of exchanging information, there are some concerns we need to address as we move forward. Simply imposing rules that dictate the automatic data provision does not automatically remove or obviate legislation that is in place in other countries in the world. Just because one country wants the information does not mean we need or can ignore other restrictions.

Mandatory collection and transmission of excessive amounts of information for its own sake without a parallel commitment to providing an enhanced process and using the information wisely is not a solution. Seeking to develop stand-alone systems that meet only one state's needs and systems not compatible with other states' systems is a costly enterprise for the industry, confusing for travellers and a huge waste of available resource.

In the aftermath of September 11, we are acutely aware of pressures being brought to bear on you from various quarters in the general population, the media, to do something, anything, to make flying safer and to make your borders more secure. While momentum is on our side, people support many of the things being considered. We believe that our most important task is to ensure that the choices and the decisions we make now and in the next six months in response to the horrendous events in New York and in Washington make sense, that they are designed not only to resolve today's problems but also can be used by a broader audience or group of states to form the solutions for problems yet to come.

With that, I would like to add that, from an operational standpoint, I have an extensive background in airline systems. During many of the questions that you asked the previous panel of witnesses, I was hoping that you would raise some of the same questions with me, because I might be able to provide you a little more information from the airline perspective and resolve some of your concerns and answer some of the questions that you still have.

The Chairman: Do you see what is proposed as a major change from today as a significant imposition, or is it a relatively minor concern?

Mr. Mackay: The bill itself is relatively minor. However, if you look behind it - this is the point Mr. Davidson was making - what one must to do is understand the nature of the information requests coming from other states, and that is the more important question. The bill is facilitative in the sense that it at least allows us to provide information, because, at the moment, we are caught on the horns of this dilemma. If we do not, we are going to significantly impact our customers and ourselves, but if we do, it is quite vague as to whether we are in fact complying with Canadian law. The bill is important in that sense.

To answer your questions, perhaps I would ask Mr. Davidson to say a few words.

Mr. Davidson: In actuality, I agree. This is not a significant change. If we look at the numbers being provided by the U.S. authorities, currently, before the movement that came from the Commissioner of Customs in a letter to 58 airlines on November 19, demanding they provide information or face the enhanced security screening of passengers well in advance of the effective date of the legislation that you heard about, the Security Act, which actually comes into effect on January 18 or 19, the information that airlines are being asked to provide to the U.S. is being provided. This is one of the key issues about the advanced passenger information. No information that is being collected by airlines and transmitted to the U.S. authorities today is information that you do not voluntarily give to the U.S. authorities when you cross the border. It is information that is contained in the machine-readable zone of your passport: your last name, first name, country that issued the document, the document number, date of birth, and your sex. That is the information that is asked for.

Regarding the additional information that was raised in another question by Senator Gustafson, what the government may add to that list is a visa number or a U.S. resident alien card number, and dates of expiration. Those are the additional elements being considered for part of the API program today.

The other point I need to make is that the legislation and provision of advance passenger information to the United States do not apply to pre-cleared flights leaving from Canada. Under the existing system, the U.S. has no technology in place to accept information four hours in advance. We have been asking to have real-time, so that we would gather information from a passenger, as he or she checked in, and we would send it to the authorities in the United States. They would run it against their combined lookout list and would send us back a message saying, yes, this person is okay to board, or no, refer this person to the consulate. Today, there is no physical structure. They cannot do that. Therefore, the airlines cannot provide information four hours in advance.

In a pre-cleared flight, when an individual checks in, that person goes directly from the airline check-in desk to a U.S. agent, who captures his or her information. There is effectively no value to a pre-cleared flight. I am not sure what the numbers are, but pre-cleared flights cannot afford the vast majority of movement to the United States.

Mr. Mackay: This is one of the unique issues I was talking about. We do not have clarity on this from the American authorities.

The Chairman: Do you see any difficulties with the PNR records the United States speaks about? We are told the content of a PNR is not standardized. I would like to have your views.

Mr. Davidson: This was one of those questions earlier that I was just clawing to answer. A passenger name record is simply an electronic file that is created in the airline reservation system to let us know who the passenger is and when he or she wants to travel.

That record is formed by the airline, if the airline books the reservation, or perhaps it is done by your travel agent, or it is created when an individual books on-line, but that normally is created by the airline. Passenger name record does not need a definition because a passenger name record is simply the airline reservation system's electronic record of who you are and when you are going to travel.

As you were told, there are five mandatory data elements. The first is the name of the passenger - for example, Davidson, R., Mr. - which is not useful in tracking who I am. The second element is a phone contact. It may be an office number, a residential number or a secretary's phone number. The third element is the name of the person who called to make the reservation, the "received from." That individual is not necessarily tied to the passenger. The fourth element is the passenger's itinerary, that is, where the passenger is travelling, when and how. The fifth element is the form of payment, cash, credit card, or agency cheque. Quite often, an individual pays a travel agent a fee in cash, but the travel agent then reverts the funds to the airline in the form of an agency cheque. Those are the five mandatory data elements required to create a passenger name record and close it into the system.

Depending upon who creates the record, there will be more or less information. Quite often, travel agencies do not want airlines to have much information about the passenger for fear that the airline will call them and offer them a better deal and cancel the travel agency's record. That information is jealously guarded. Quite often, the phone contact is the travel agent's phone and the contact is the travel agent itself. Quite often, the information that is in a PNR has less than no value to anyone.

Schedule 2 of the regulation contains a wish list of 29 items. I sat down several months back with Revenue Canada, as well as with Transport, and discussed the list of 29 items. I explained to them that, of the 29, none of them was absolutely assured to be in any PNR. In a passenger name record, or PNR, of that list of 29, about nine of those items would never, ever be found in a passenger name record. Instead, that is information that the airlines create or capture during check-in, and it is information that is maintained in what is known as a departure control system, or a DCS. The airline's DCS and its reservations system quite frequently are wholly separated, and only certain elements from the DCS will be overwritten to the passenger name report. Frequently, of that list, many of the issues or items would never be found in a passenger name record.

Some one raised the issue of a traveller's personal information. If the U.S. government asked an airline to provide information from the passenger name record, the question was, "Well, what if I came from a former Communist country or have a medical record?" First, the airline would not have access to that information, nor would it want access to that information. Also, under no circumstances would an airline ever allow itself to be forced to forward such information simply because it would then be held liable by the traveller. Trust me, airlines do not want to gather or transmit any more information than that which is absolutely mandatory. It is expensive, it requires data storage space, and it takes the airlines further and further into the enforcement role rather than the transport role that they want to be in. The issue of airlines providing too much information is certainly one that our industry never wants to become involved in.

Mr. Mackay: Just to add to that, we are not terribly concerned about the accuracy of the information that passengers provide us, other than the need for accuracy for business transactional purposes. If a passenger wants to provide us with a name that is not quite correct, we do not run around and try to verify that name. We accept it for what it is.

Senator Finestone: What if the name differs from what is on the passport?

Mr. Mackay: If it differs from the passport, an alarm bell will go off. However, if an individual comes in to us and says, "My name is Robert C. Davidson," and not Robert A. Davidson, we will not run around to try to verify that in any way. We require the information solely to provide a service and to facilitate a transaction. We are not in the business of verifying information for security reasons.

The other point, broadly, is that we want to cooperate and provide information, but we do not want to become some sort of a research agency for either Canadian or other intelligence and security agencies. If they want to take this information and use it for their own purposes, as long as it is within the law, we will comply, but we do not want to become their research agency.

The Chairman: Would the proposed regime give the U.S. carriers an advantage over Canadian carriers in transborder operations?

Mr. Mackay: Not in any direct way, assuming, of course, that we as Canadian operators were able to comply with the requirements in the same way that the U. S. carriers are. If we cannot, there is a huge problem, because they will be able to facilitate their passenger flows and we will not. Assuming that playing field is level, there should be no competitive advantage one way or the other.

Senator Oliver: As everyone has said, this is a simple piece of legislation with one basic clause and, on the face of it, is not difficult to understand. However, behind it, are some important and fundamental issues and questions, none of which either of you have discussed. Those questions relate to a Canadian citizen's basic civil, human, legal and constitutional rights and their rights as enshrined in certain international covenants and charters.

I will ask you the question I asked the other witnesses with respect to racial profiling. What protection is there for Canadian citizens against racial profiling as a result of this bill?

Mr. Mackay: This bill does not in any way obviate our members from respecting the Charter. Under the Charter, we cannot ask those questions, and we will not ask those questions. A person's race is irrelevant to us; there is no need for that information to affect the transaction that we are talking about here. We simply would not do it. It would immediately expose us to a Charter issue, and we have no interest in being exposed to any Charter issue in Canada.

Mr. Davidson: Once again, I should like to emphasize the point that the information that is collected and transmitted under the existing advance passenger information system is the information that is currently found on the biographical page of a passport. On that page, there is no indication as to the race or religious affiliation of the passport holder.

Senator LaPierre: Your picture does.

Mr. Davidson: There is no transmission of passport. You give up all that available information that is on that front page of your passport at the time you walk up to the U.S. inspection desk. We are not obligated to collect any more, nor are we obligated to transmit any more information than that which you are carrying on your passport. Trust me. Several authorities have been moving to try to expand the amount of data that is obligatory under the API system through the world customs organization, and I personally have been involved in those discussions, and I continue to fight. We do not want to be held responsible for collecting any information about you that a government has not already collected and confirmed as accurate. We believe that if a government collects data from you and prints that information in your passport, then that is safe for us to trust as accurate. We do not want to be forced to ask you a question, record your answer and send that off. That is how we believe we can protect your rights under the Charter, because we are only going to provide the information that you have voluntarily submitted or you would voluntarily submit when you arrived in the territory.

Senator Oliver: Mr. Mackay looked outside the box, if you will, and raised some other potential problems that he and his association are now having, which is troubling and which does go to the areas that interest me: human rights, constitutional rights, legal rights and so on. What if this information, which you so quickly say is already been collected, is collected and is sent to someplace in the United States where they do not have these offices? What happens to our private information, and what happens to our constitutional and human rights if that information becomes accessible to someone who can abuse it? That is a serious problem, as I understand it.

Mr. Davidson: That is a simple answer structurally.

Senator Oliver: It is a serious problem, and you say it is simple.

Mr. Davidson: Structurally, all information that is sent to the United States regarding inbound passengers is sent to a single location.

Senator Oliver: Did you hear what Mr. Mackay raised as the issue today about where you send this information now?

Mr. Davidson: All advance passenger information is sent directly to Newington, Virginia, to the U.S. Customs computer center. From there, the information is massaged through what is known as the Inter-Agency Border Inspection System, IABIS, which is the merged U.S. lookout list. The information comes in and it is vetted against that list to find out if anyone of interest is on-board a flight. That information is then sent through the U.S. immigration secured lines, either to the airport or to the office that controls the port of entry. Structurally, there is no way that a carrier could send IABIS data to an office in Minot, North Dakota.

Mr. Mackay: This is absolutely correct. The problem we are worried about is that the American authorities have indicated to us that they are not only going to increase the amount of data required for people coming into the country, and we have been talking about that, but they are intending to move to departure control. In other words, when you leave the United States, like in some other countries around the world, you will have to go through a process of verification as to who you are, et cetera, when you leave. That is similar to the process an individual would go through when he or she enters the United States.

Our concern, because of the unique travel patterns between Canada and the U.S., is that many of the people who depart from the U.S. on our flights do not depart from centres that have established customs and immigration capacity. The issue for us is what kind of arrangement we can make with the Americans, because we do not believe they will expand their customs and immigration capacity simply to facilitate us. What unique arrangements can we make with them, arrangements that will serve their purposes but allow us to do our business in an effective way under the open skies arrangement we have with the United States of America? That is the issue.

The other issue is that the Americans, unlike ourselves, have a computer-aided passenger profiling system. That system has been part of their normal security screening system for quite some time. The information that we provide to them, garnered through our passports and whatnot, goes to a central location. One of its many uses is to screen for passengers with particular profiles, and not simply for terrorism reasons; they are concerned about drug interdiction and these types of things, as well. It is a standard procedure in the U.S. that has been ongoing for a long time, and it is one of the many uses for this information.

Senator Oliver: Do the Canadian computers use the same program as well?

Mr. Mackay: No, we do not do computer-aided profiling in Canada. I have to make one fundamental point here. As a matter of practicality, when you make a decision to go to another country you are making a decision to follow their prescribed entry and exit procedures; frankly, the choice that we all have as individuals is whether or not to go. You can say the same thing about China, Japan and other countries. That is the reality of what we are dealing with, and it is not something we can change.

Senator Oliver: Mr. Mackay, I was interested, since Mr. Davidson answered my question first about records and you agreed with him - but the record is clear because I made notes. You raised the following questions as concerns: "Who do you send this information to? How do you comply? Will the information get into the hands of people who can use our private Canadian information for wrongful uses?" You raised these issues, and now you are backing away from them, but the record is clear.

Mr. Mackay: I must apologize. What I did not articulate as well as I should have is the concern with the exit provisions that we are being advised they will impose. We do not know how to make that system work because there are no people at the exit points that can be part of this system. That is the issue here.

Senator Gustafson: There are many people who, in their youth, got into some trouble and, as a result, have a record. It is not an easy matter to have the record cleared. Many Canadians have a criminal record. Is our government capable of helping these people with respect to any difficulty they might experience at border crossings? Many of them are good people who made a mistake back in their youth.

Mr. Davidson, you have experience in travelling to different countries. Will we need to set up a new department to deal with these kinds of things, in this age of communication? Is it a serious problem? Someone wanting to cross the border into the U.S., say, who hands over his or her passport for examination will have more information found about them than our government can learn. What can we do about this?

Mr. Davidson: Senator Gustafson, if I could come up with the answer to your question I think I could possibly retire. Particularly in the last three months, we are witnessing governments around the world looking for reasons to keep people out. If for any reason anyone in this room has a criminal record that is on record in the United States, then we are not going to the United States. However, if the violation took place in Canada then the United States does not have access to that and that is not information that will ever be exchanged, either through advanced passenger information or through PNR access because we do not have access to that.

Senator Gustafson: Let us say that someone had an impaired driving conviction 20 years ago and that information got out.

Mr. Mackay: We do not have the record.

Senator Finestone: Who would have that record?

Mr. Mackay: We do not have that information at all, and frankly we do not want that information.

Senator Finestone: Why would they?

Senator Gustafson: If the individual had been in the U.S. and the impaired driving conviction took place there, they have that record. Who will go to bat for that individual? His fine has been paid. He will have trouble at the border.

Mr. Davidson: That is not an issue that is impacted by this program. If an individual has a record, it will be determined when the person arrives at the border, when his or her name is run through the system, whether the airline provides it in advance or not.

Senator Gustafson: This does apply indirectly to what we are talking about. Are we doing anything to clean up the records for good people who have proven themselves?

Mr. Mackay: The short answer is that we have no idea. We simply are not part of that process in any way. The only information we have is what we are given by our passengers.

Senator Gustafson: During my many years as a member of Parliament, several of those matters came to my attention. I worked on many such cases. They required many letters back and forth. In the end, we are never really sure whether someone has gone into the communications of that other country and cleared it up.

Mr. Mackay: We simply do not know.

Senator Gustafson: The answer therefore is to make sure you do not make any mistakes in your life.

Senator LaPierre: I am about to make a mistake. If I understood correctly, gentlemen, you favour this bill?

Mr. Mackay: That is correct.

Senator LaPierre: I understand that you want this bill passed.

Mr. Mackay: Correct.

Senator LaPierre: Is the reason you want it passed because your planes may not land in the United States?

Mr. Mackay: I think we will be able to land, but we may take quite some time putting people on and off the aircraft.

Mr. Davidson: We support this bill because we honestly believe that provision of accurate information among trusted stakeholders in the transport operation is the only way to move forward. We believe that without this kind of information we will be constantly behind the clearance curve. We will not have effective use of our airports or effective aviation security. The experiences of those who are travelling to different countries will not be good.

However, we believe that the situation must be controlled. All the applicable safeguards must be put into place. To enable Canada to ensure its own border integrity, and to enable Air Canada to get information about a known terrorist who may be moving toward one of its aircraft, an exchange of information on lookout lists of terrorists must be built into the system.

This legislation recognizes the direction in which the world is moving. However, it will permit this exchange of information only with the observation of our rules. That is why we support Bill C-44. It consents to something that is coming, and coming in Canada itself, but on the condition that privacy and rights are respected. For that, the actions of the government under this bill should be commended.

Senator LaPierre: Schedule 1 is made up of five elements. That is what you provide now?

Mr. Davidson: Yes.

Senator LaPierre: This is called my personal user record.

Schedule 2 is made up of 29 elements. Will we have to provide that?

Mr. Davidson: No. That is the list of information that could conceivably be contained in a passenger name record.

Senator LaPierre: Do not do like the bureaucrats and wrap me up in circles. There are 29 demands here. Anyone with any intelligence knows that these demands are here. They are part and parcel of the personal user record. An authority may demand these data elements, and an individual will have to supply them if demanded, yes or no?

Mr. Davidson: The regulations, as drafted, say that these are data elements they could ask for if they were present in the passenger name record.

Senator LaPierre: What do you mean, "if they were present"?

Mr. Davidson: In Canada, the legislation specifies the information the government can request. If something is not listed in the regulation, the government cannot ask for it. They have identified 29 elements that they believe would be found in the PNR. The regulations, as they are being drafted, stipulate that if any of these data elements are available in the name record we can ask you to provide them. The regulations, as being drafted, do not say that we must gather all this information and we must provide it.

Senator LaPierre: Element 8 is a notation that the passenger's ticket for the flight is a one-way ticket. That is in the record already.

Mr. Davidson: No, sir. There would never be such a notation. The only thing in a record would be the itinerary, which would say that this person is holding -

Senator LaPierre: If the Americans ask for element number 8, you must provide it?

Mr. Davidson: No. Again, the regulation says that it need be provided only if it were available in the record. We would not have it available in the record. This is one that I told the authorities, in consultation, would never be there.

Mr. Mackay: Currently in the United States, a number of major airlines provide access to their PNR information to U.S. authorities. However, it is on an as-is basis. You cannot provide information that you never received from your customers. If it is not there, it is not there, and they cannot require us to provide something we do not have. That is the distinction.

Senator LaPierre: Why is it on the list if they do not require it? How can you be so naive?

Mr. Mackay: This is a wish list.

Senator LaPierre: It is a wish list in an official document?

Mr. Mackay: It says that if you do have the information you must provide it.

Senator LaPierre: Do you foresee a time when they will require us to get the information and provide it?

Mr. Mackay: There is always a risk; I do not disagree. However, we have made the point repeatedly that that is nearly impossible because of the variety of services that are offered and the variety of ways in which transactions take place in the industry.

Senator LaPierre: With all due respect, open skies no longer exists, anymore than does the longest undefended border on the planet. Consequently, if the Americans demand it, we shall give it to them or they will blackmail us into doing so.

Did I understand you correctly to say that every pre-cleared flight is not subject to this?

Mr. Davidson: They are not subject to the provision of advance passenger information.

Senator LaPierre: Are 90 per cent of the flights going to the United States pre-cleared?

Mr. Mackay: That number is probably slightly high.

Senator LaPierre: This bill is completely unnecessary then.

Mr. Davidson: Unfortunately, no, senator. The bill also addresses the passenger name record issue, which is supplementary in security. That is the issue with which we are all incredibly concerned.

It is important to note that this is not only a U.S. issue. Schedule 2 is the list of information that Revenue Canada has advised the airline industry it will be requiring for flights to Canada. Schedule 1 is the list of information that Citizenship and Immigration Canada has advised the industry will be required for flights into Canada. This bill seeks to harmonize what the U.S. government and the Canadian governments will ask for, if available. That is a step in the right direction. At least we have a common list rather than each country coming up with its own, which would be very confusing.

Senator Spivak: This will involve the expenditure of some money. It is an axiom with regard to terrorism that the terrorists get smarter and smarter. Regardless of what safeguards we put in place, they will find ways to overcome them.

Do you really think this legislation will prevent terrorists from getting into the United States? They can read. They know the laws.

Mr. Davidson: Although this may sound incredibly cynical, I believe that, as currently structured, advance passenger information has little or nothing to do with security enhancement. It is an enforcement tool. However, it will enhance security once we get to real-time API, that is, when the airline checks you in, gathers your information, sends it off for clearance and the results are sent back. Australia does that today. That becomes a truly useful security tool. It identifies people who should not be on an airplane and people who should not come to your territory.

Senator Oliver: If a terrorist has a false passport, as most of them do, it will mean nothing.

Mr. Davidson: Canada is working toward enhanced security for passports.

Senator Spivak: El Al, which is the model for airline security, relies not on electronic measures but on passenger profiling. They actually interview the passengers and have methods by which they identify risks.

Senator Finestone: They interview everyone who travels on their planes.

Senator Spivak: They particularly interview those people and give them more time. We are spending a lot of money on this; I wonder if it will achieve the objectives that the government thinks it will achieve.

Many are criticizing - Clayton Ruby, for one, has criticized the proposed anti-terrorist legislation. We are getting a whole series of legislation.

Mr. Mackay: This is not a panacea; it will not be the one thing that fixes it. I think that point has been made. We are talking about tens of millions of people moving around the world, in and out of Canada and in and out of the United States. We absolutely need to move forward with the best technology we can get so that we can focus on those areas of the highest risk. If we try to make a one-size-fits-all solution here, we will grind the worldwide air transportation system to a complete halt. That has enormous implications economically and socially.

There is no good answer to your question other than it is absolutely true that this one measure will not fix it all, but it is a piece of a bigger puzzle. It has to be brought together.

Senator Spivak: What worries me is that while we are dealing with these things the real issues are being set aside - for instance, the missile defence system that President Bush is talking about that will change the sky. In the meantime, some guy in a rowboat with a nuclear bomb will destroy New York.

Mr. Davidson: We fully agree with the point. The value we see in API today is that it gives the government an opportunity to pre-screen people and to recognize that minute percentage of travellers for which there may be a legitimate concern. It allows us to refocus that diminishing human resource into areas where it does the most good. That helps us to enhance border security because we are using our available people in a more efficient way. We are not wasting a lot of time with the 99.95 per cent of visitors to Canada who are legitimate and who will offer no concerns.

Senator Spivak: What sort of consultation is taking place among the departments to ensure that you have the best expert advice on these anti-terrorist measures? If you look at the United States, much of it, in my opinion, is just political stuff.

The Chairman: You should have asked this question to our previous witnesses.

Senator Spivak: You are right. I am asking about the consultation.

Mr. Mackay: We are not directly involved in the consultation that goes on interdepartmentally because we are not part of the government; however, we are aware that a lot of consultation does go on. There is ongoing consultation within the industry. There are advisory structures to do that, not only here in Canada but also internationally.

My colleague Mr. Everson who deals with this file on a daily basis is in Washington today precisely for that reason. He is at a meeting of customs authorities from the U.S, Canada and Europe to talk about these issues of harmonizing data and to make sure that we are not reinventing wheels.

Senator Spivak: We do not have a homeland securities office though?

Mr. Mackay: No, we do not.

Mr. Davidson: We are constantly involved in consultations and have been asked to join with a range of agencies. Whether these agencies are speaking to one another, we do not know, but I have been in meetings where several agencies have been around the table meeting with us.

The Chairman: Would they be government agencies?

Mr. Davidson: Canadian government agencies such as Revenue Canada, Citizenship and Immigration, and Transport.

Senator Finestone: They are departments not agencies.

Mr. Davidson: Departments, excuse me.

Senator Finestone: The reason I asked for that clarification is that government roundtables at the bureaucratic level are not always the most efficient in transmitting information back up to where decisions are made at the political level.

You are the Assistant Director of Facilitation Services for IATA, which is land based in Montreal; is that right?

Mr. Davidson: Yes.

Senator Finestone: You have 274 member airlines.

Mr. Davidson: Yes, today. However, that changes almost daily.

Senator Finestone: To what extent does your responsibility in facilitating information flow to these other members? You have two that are wheeling and dealing here, Canada and the United States. You also mentioned Australia. How do you communicate to your overseas transporters, to give them the information they need to have before they can land in the United States or in Canada?

Mr. Davidson: Within my group, which is a small group, we have responsibility for immigration and customs efforts all over the world. To do that, we make use of airline facilitation representatives from our members who are tasked with watching developing legislation and then sending anything that emerges to us. Each morning when I come into my office I read the U.S. Federal Register to see if anything has been posted in the journal here in Canada, to see whether there are issues that my members need to know about. If something comes up, such as the letter from the U.S. customs authority that went out to 58 airlines, including five of the Canadian regionals, on November 19, I put together as much detailed information as I can and send that to all of our member airlines.

Senator Finestone: What was in that letter, please?

Mr. Davidson: That letter was dated November 19.

Senator Finestone: You have referred to it twice, so I think you ought to put on the record what is in it.

Mr. Davidson: This letter was from the U.S. Customs Commissioner, Robert Bonner, to the CEOs of the individual 58 airlines advising that, while the U.S. Security Act had a 60-day implementation period, U.S. customs authorities felt that provision of advanced passenger information prior to arrival was so critical that the customs agency in the United States was unilaterally imposing a mandate that carriers would provide that information by November 28 or 29 or their passengers would face enhanced screening. He went on to invite that particular carrier - these were individually addressed letters - to contact U.S. customs for further information. This letter was signed on November 19, with an effective date of Thursday, November 29.

Senator Finestone: Do you know whether it went into effect?

Mr. Davidson: It went into effect on November 29.

Senator Finestone: My next question is with respect to Schedule 2. I am told that the list it contains is a wish list and that it has no impact at this time, that it is something that has been designed by Revenue Canada as a kiss-kiss - if you want this then I want that. Is that accurate? Does this list contained in Schedule 2 have any impact?

Mr. Mackay: I would not characterize it that way. The PNR exists.

Senator Finestone: I understand the PNR. That is Schedule 1, is it not?

Mr. Mackay: No, Schedule 1 is the advanced passenger information. That is the stuff on your passport. Schedule 2 refers to the kind of information that may exist in our computer reservation systems. I apologize for the use of jargon, but we generally refer to that as the PNR.

Senator Finestone: Schedule 2 is the PNR.

Mr. Mackay: Yes, Schedule 2 is the PNR. It exists now.

Senator Finestone: This Schedule 2 exists?

Mr. Mackay: Some or all of the information that is listed in Schedule 2 will be in the computer reservation systems of different airlines. Different airlines, because they have different kinds of operations, do not always require all of that information. In some cases, as Mr. Davidson said, some of the information is never asked for by anyone and will therefore not exist. The purpose, as we understand, of Schedule 2 was to come up with a list of everything that could ever conceivably be put into a passenger name record.

Senator Finestone: Did Revenue Canada establish this? Did Transport Canada establish this? Did Customs and Immigration establish this? Who developed this list and to what extent would IATA consider this a proper kind of a PNR?

Mr. Davidson: This list was developed in consultation between U.S. authorities, primarily U.S. Customs but also the U.S. departments of Immigration, Agriculture and Environment, and Revenue Canada, Citizenship and Immigration Canada, and Canadian Customs.

This was an attempt to comply with Canadian regulation as Canada moved into its own advanced passenger information and PNR access regulation, which is coming, and which is legislated today.

The Canadian authorities could never legally accept data elements that were not specifically mentioned in the regulation. Therefore, this is a broad-based list between the two governments of all the elements that they could conceivably find in a PNR. In order to be able to say, "Airline X, give us a copy of your PNR," they had to list everything; otherwise, if there were one data element in that passenger name record that was not specified in the regulation, the airline would be forced to develop an electronic filter that would block that particular piece of information at great expense.

This was a way to comply with Canadian regulation. If it is not in the regulation, we cannot ask for it. If we cannot ask for it, then you must filter it out. This is an operational nightmare. IATA will never support mandatory fields to say that a PNR must contain these elements. We will say no, absolutely not, because again, not all of these elements are PNR elements. Many of the elements that are here are things found in different computer systems, such as the departure control system. We have tried to educate them, but again they have softened the blow by simply saying, "If the information is in the record, then we can ask for it." However, the United Kingdom in its legislation and, to the best of my knowledge, the regulations within Canada, have said the information in passenger name records would be requested only if it were present in the record. They would not mandate that the information be collected because of its impact on the travelling public.

Senator Finestone: I understand what you have just outlined. As I read through the 29, there is a degree of reasonableness relative to the travel agent or the airline. There is absolutely no reasonableness, in my view, for a notation. There are five notations in here that I would take great exception to. A notation that the passenger's ticket for the flight is a one-way ticket, that is important, yes, but that has to be voluntary information, I would presume. The notation that the ticket for the flight is valid for one year; that is what it says here. The question is this: At what point does that become a security question and at what point is it an invasion of my personal privacy?

I do not know the answer to that, Madam Chair, but if this is a wish list by Revenue Canada, by Citizenship and Immigration Canada, by the United States Customs and the United States Department of Agriculture, I think that there is reason to have some kind of question. These are serious questions. This is not frivolous. I am concerned because, yes, September 11 was a stunning, important, disturbing, upsetting time in the history of the world. However, that does not mean that my rights and your rights of privacy should be invaded.

Quite frankly, there is a time and a place for all these things because there is a difference between being safe and being free. I am concerned that this is the thin edge of the wedge.

Senator Oliver: I have one last question and it is for Mr. Davidson.

This bill is about reciprocity and standardization, about trying to equalize the opportunity between two borders. I want to ask you a question about CAPPS, which you told me stands for computer-aided profiling. It can, in fact, affect Canadian citizens.

Would you lay before this committee all of the data that is used to compile CAPPS? Where does the data come from, what is in it, and how is it comprised?

Mr. Davidson: I would love to do that but I do not have all of that information. If it would be of benefit, I could obtain it. The computer-assisted passenger profiling system was a development by the U.S. FAA. It became mandatory on all U.S. carriers about two years ago.

What it does is take a wide range of factors, such as whether your ticket was paid for in cash, whether you purchased a one-way ticket, whether you purchased your ticket within a week of travel, and things of that nature. The intent of CAPPS is to identify individuals not for exclusion from a country, but to identify individuals whose baggage you might want to look further into.

Senator Oliver: Will you lay that before this committee? It is extremely important.

Mr. Davidson: Again, this is in the U.S. I will check with our security department to see if I can get a copy of it and provide it to the clerk.

The Chairman: Can you provide that today?

Mr. Davidson: I will seek to do that.

The Chairman: We would appreciate that.

Senator Gustafson: I have what is really a statement.

Mr. Davidson, you are a part of the negotiations in this whole area, I take it, and you indicated that. The agricultural people of the U.S. are very concerned about food security. Are we doing anything?

We had the duster plane at Weyburn, Saskatchewan. I live 30 miles from that. In Saskatchewan, I thought no one would bother us. In that case, an individual spent five days in a hangar in Weyburn, Saskatchewan, with our flying people. The same thing happened in Regina. There was a person trying to buy the whole air business. It probably would have been sold.

There are some very serious issues here surrounding our food security. It boggles the mind, if you think about it.

Are we looking at these things?

Mr. Mackay: Under the Aeronautics Act, the Minister of Transport has the power to implement what is referred to as security measures. In this particular case, particularly with regard to crop dusting and small aircraft, there have been a number of changes in procedures for security measures.

At one point, when there was some indication that there was a significant threat, some of those operations were in fact grounded. However, the minister has all the powers under these things to move quickly.

In the broader context of aviation flight training, we are in fact working with the department and others to change some of the information requirements with regard to students who are enrolling, and this sort of thing, to advise people of these things. There are changes coming on that side under the Aeronautics Act.

The Chairman: Thank you for your presentation.

We will wait for further information from Mr. Davidson.

The committee adjourned.