Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 10 - Evidence, March 10, 2011

OTTAWA, Thursday, March 10, 2011

The Standing Senate Committee on Transport and Communications met this day at 9:00 a.m. to study Bill C-42, An Act to amend the Aeronautics Act.

Senator Dennis Dawson (chair) in the chair.


The Chair: Honourable senators, I would like to call the meeting of the Standing Senate Committee on Transport and Communications to order and thank you all for being here today.

This morning, we begin the study of Bill C-42, An Act to amend the Aeronautics Act.


We are pleased to welcome the Honourable Vic Toews, Minister of Public Safety; Graham Flack, Associate Deputy Minister; Chris Gregory, Director, North America; and Paul Shuttle, Executive Director and Senior General Counsel, Legal Services.

Hon. Vic Toews, P.C., M.P., Minister of Public Safety: Thank you for the invitation to be here today. It is a great pleasure to appear before the committee to assist in you in your deliberations on Bill C-42, An Act to amend the Aeronautics Act.

My remarks begin with the observation that our government appreciates the spirit of cooperation demonstrated in the other place, which has helped to strengthen the legislation before us in several ways. I am confident that we can continue to work together in the same spirit of cooperation to help ensure that Bill C-42 is passed into law in the most timely and expeditious way possible. The bill is important for a number of reasons.

First, Bill C-42 will ensure that Canadians who travel by air can continue to access southern destinations in the best way possible. Second, it will contribute to North American aviation security, a goal that we all share. These are important benefits but, just as important, is the need to protect individual privacy rights and to ensure that we balance the need for increased security with the need to protect the values and civil liberties, which have made this the great country it is today. This is the balance that Bill C-42 achieves, one that our government has been committed to achieving since we were first elected in 2006.

Allow me to explain briefly how Bill C-42 will achieve that balance and to address several misconceptions I have heard about Bill C-42. In essence Bill C-42 is a complement to what was done by the Liberal government in 2001 as part of Canada's response to the tragic events of September 11. In the wake of the 9/11 attacks, the government of the day amended the Aeronautics Act so that Canadian airline companies could provide the Americans with passenger information for all flights scheduled to land in that country. Specifically, Parliament amended section 4.83 of the Aeronautics Act to allow air carriers to share passenger information without requiring informed consent as normally required by Canadian law. Bill C-42 proposes to amend the same section of the Aeronautics Act so that Canadian airlines can provide the Americans with information for flights that overfly American airspace on their way to destinations such as Mexico and the Caribbean. This is in accordance with the Transportation Security Administration's Secure Flight Program; Final Rule, which was published in 2008 in response to the recommendations of The 9/11 Commission Report and the Intelligence Reform and Terrorism Prevention Act of 2004.

There are obvious security reasons why this is necessary. As the Secure Flight Program; Final Rules notes, flights that overfly the United States have the potential to cause harm due to their proximity to locations that may be potential terrorist targets, such as major metropolitan areas and critical infrastructure. Our friends and allies south of the border have the legal right under international law, as we have, to know who is coming into their country, by land, sea or airspace.

The Chicago Convention, to which Canada is a party, requires compliance with:

. . . the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory . . .

The legal basis for requiring passenger information for all flights that overfly American airspace is therefore strong.

Bill C-42 will allow Canadian airlines to comply with international and American law. It will provide Canadian airlines with continued access to southern destinations without forcing them to circumvent U.S. airspace. It will build on a number of initiatives already under way with our international partners to improve aviation security.

One misconception I have heard recently is that compliance with the U.S. Secure Flight Program; Final Rule would force Canadians to give the American government personal information, such as race, religion or ethnic identifiers. This is wrong. The U.S. Secure Flight Program is specific whereby it stipulates that airline companies must provide the American government with a passenger name, date of birth, gender, redress number and other information such as certain passport and itinerary information, if it is available.

For passport information, the U.S. Secure Flight Program; Final Rule is specific that air carriers must transmit to the Transportation Security Administration the passport number, country of issuance and expiry date. Itinerary information includes non-personal information such as flight number, departure time and arrival time. The fully itemized list is on page 64,024 of the U.S. Secure Flight Program.

Nowhere in the U.S. Secure Flight Program is there mention of any requirement for airlines to provide information such as race or religion. There is no requirement to provide information such as address, phone numbers, credit card numbers, frequent flyer numbers or meal or seat preferences.

Another misconception I have heard is that Bill C-42 would require Canadian airlines to pass along passenger information that could be matched against the no-fly list and arbitrarily and indiscriminately forwarded to police or immigration officials. The U.S. Secure Flight Program is specific in stating that the purpose of collecting passenger information is to guard against possible aviation and national security threats. We have written confirmation from the Americans that passenger information will not be forwarded to other agencies except in extremely limited circumstances and then only for aviation or national security purposes.

On this subject, Ambassador Jacobson states in his November 30, 2010, letter to Merv Tweed, Chair of the Standing Committee on Transport, Infrastructure and Communities:

Secure flight information is not shared widely for law enforcement or for immigration purposes . . .

The letter continues:

Any information shared is limited to an individual or limited group of individuals for a specific investigative purpose related to terrorism or national security.

Ambassador Jacobson points out:

Since the inception of the Secure Flight Program, TSA has provided information about a traveler to federal law enforcement officials on only three occasions to further a terrorism or national security investigation. This is after hundreds of millions of passengers have flown under the same U.S. Secure Flight Program.

Honourable senators, our government is committed to working with our international partners to help strengthen aviation security. We are committed to protecting the safety and security of Canadians and to cracking down on terrorists, wherever they may be. However, we are also committed to upholding the values and beliefs that have made this the great country it is today. We need to stay safe, but we also need to uphold and strengthen the vital cornerstones of our way of life, such as due process, the rule of law and the preservation of individual civil liberties, the Charter of Rights and Freedoms and privacy rights. In that vein, I am proud to note that our government supported an amendment to Bill C-42 that will mandate a review of the legislation commencing two years following Royal Assent and to be completed one year after that.

I also want to highlight the amendment supported by our government that stipulates that passenger information will not be passed to any other government other than the U.S. government, for overflights. This means that parliamentary approval will be required should another country request passenger information for overflights.

As well, our government has supported an amendment that will stipulate in the act that airlines must notify passengers that their information will be shared with the Transportation Security Administration for all flights that overfly American airspace.

Honourable senators, Bill C-42 is necessary. It is vitally important to our national airlines. It is vitally important to the Canadian public and to our tourism industry. I know that all senators understand how important it is for Canada to continue to work with our international partners to help further strengthen aviation security.

Senator Housakos: Minister, when the bill was before the House of Commons committee, it was amended to create a statutory review of the act by the House of Commons alone. Being one of the constituent parts of Parliament, the Senate has long insisted on its right to be included in any statutory review process. Under normal circumstances, an amendment would be brought forward to correct this oversight by the Commons. However, we do understand, given the pressing nature of the legislation and the political uncertainty in the House of Commons, that it would be unwise for us to risk sending the bill back to that chamber at this time. Would you undertake to support a Senate bill that would include our chamber in the review of the act?

Mr. Toews: Yes, that issue has been brought to my attention. That was an oversight and should not have occurred. I would support a private member's bill to ensure that the Senate has a part in that review, as it properly should.

Senator Fox: Minister, this may be a picayune point, but you mentioned, ``redress number.'' I am not sure I understand redress number.

Chris Gregory, Director, North America, Public Safety Canada: The redress number is related to the Traveler Redress Inquiry Program, called TRIP. In the past, there have been some unfortunate situations of people being misidentified or people that might share a name with someone on the U.S. no-fly list. In those cases where a traveller has had some troubles getting through airports, the Department of Homeland Security welcomes people to go to their website and fill out some personal information. DHS then sends them a letter with a particular number on it, and that is the redress number. That number then facilitates travel in the future.

Senator Fox: That was leading into my second question. What happens to a Canadian citizen who ends up on the no-fly list and ought not to be there? I guess that is part of the answer.

Mr. Toews: That is a good part of answer.

Mr. Gregory: In any cases with which I am familiar, it has been people who are not actually on the no-fly list. Before this program came into being, airlines had the U.S. no-fly list, and it was the responsibility of airlines to do the matching between the passenger manifests and the U.S. no-fly list.

One reason this program is being implemented is according to the U.S. government, the airlines were not doing a good job of the matching process. Sometimes where an initial or a name was close to a name on the list, they would err on the side of caution, phone up DHS, and then there would be a process to confirm that the person was in fact not the person on the list. Sometimes they were younger people. We heard anecdotally about Boy Scouts been denied boarding.

Those people are not on the list. It sometimes takes some time under the old system to confirm that that person is not on list. Under the new system, the U.S. government is confident, and they have tested it domestically now for some time, that, with their computers and their algorithms, they will significantly fewer cases of misidentification so this situation where people may have had troubles in the past will not happen in the future.

Senator Fox: Let us assume there is a case of mistaken identity. I get to the airport and I am refused access because I assume that the airline now knows that I am on some kind of list, but I am misidentified. How long would it take for a Canadian citizen to be able to obtain redress? Would the Canadian government be of any help to them in that regard?

Mr. Gregory: The citizen would be encouraged to contact DHS directly either through the embassy or through the consulate or through the website, and that would not take a matter of hours or days. It would take weeks, likely — I would rather be conservative in terms of my answer — to confirm that in fact you are not the person on the list. In 99.99 per cent of the cases, that would be the situation. It would be a Canadian citizen who is not the on the list but rather shares a name.

Senator Fox: Do I have access to any help from the Canadian government should that situation occur, or is it purely between the Canadian citizen and the U.S. authorities?

Mr. Gregory: You can always contact your member of parliament, senator. I am sure they can be of assistance in terms of your contacting the U.S. embassy. As a government official, I have sometimes been in contact with the U.S. embassy, but to get a TRIP number, a Canadian citizen would have to fill out the TRIP form, mail it to DHS, let that process take its course and receive their redress number. It is a basic process. They want to ensure that it is a different person with a different birth date, confirmed, and they send you a letter.

Senator Fox: Do I not get Minister Toew's cellphone number so I can call him up?

Mr. Gregory: You do not.

Mr. Toews: In your case, senator, I would make my cellphone available to you.

Senator Fox: I hope it would not be needed.

Senator Marshall: Welcome, minister and officials. A good portion of your opening remarks covered the issue of privacy, which is something of concern to all Canadians. Were there discussions with the Privacy Commissioner concerning this bill, or would she automatically review it? I am interested in hearing whether she had any comments on the proposed legislation.

Mr. Toews: Senator Marshall, there were discussions with the Privacy Commissioner. One of the first issues that we wanted to cover was to ensure that the Privacy Commissioner did not have concerns with the legislation.

Graham Flack, Associate Deputy Minister, Public Safety Canada: The challenge is that, while we recognize that the U.S. has full sovereignty over their airspace, the Canadian government has negotiated with the United States to limit the impact of this sovereignty. For example, if you fly from Toronto to Halifax, you overfly U.S. airspace. The U.S. has agreed to an exemption for these Canada-to-Canada flights. That is an example of how we negotiated with the United States.

I think there is wide recognition that if this is the information that the United States wants, then the United States has the legal authority to demand this information or refuse the overflight.

The Privacy Commissioner attempted to lay out, as the minister did in his remarks, the safeguards that the United States has put in place, which they face from their own advocates for privacy within the U.S. government, including a form of Privacy Commissioner that exists within the Department of Homeland Security. That is why you see in the rule that there is a range of things they are not collecting that may be of some interest to intelligence agencies, but, in the interests of limiting privacy, they focused down the list. There were consultations to lay this out. In response to representations to the United States, we have achieved some success in limiting the application of it, for example, in Canada-to-Canada overflights being exempted from the rule.

Senator Marshall: In the past, information has been provided to the U.S. Have there been any issues arising from what has been done in the past?

Mr. Flack: There are two issues. This bill deals with overflights. A more detailed regime applies if you are flying to the United States and landing in the United States. We have a significant history with that regime.

The challenge our airlines face is that in order to overfly the United States legally, they will be required, when this rule comes into place, to provide this information to the United States. Under our privacy legislation, under PIPEDA, the Personal Information Protection and Electronic Documents Act, they would be barred from providing some of this information. They find themselves in a conundrum between violating U.S. law and violating Canadian law, and their only recourse would be to change the routing of the aircraft to stop it overflying the United States, which is a geographic challenge for Canada.

Senator Moore: Thank you, Minister, and other witnesses, for being here this morning.

As you may know, I spoke about this bill yesterday in the Senate. I ended my remarks by saying it is not an easy thing to balance the privacy issues with the national security issues.

You mentioned that the information goes to the U.S. Transportation Security Administration, but they cannot pass it on to anyone else except in situations regarding possible aviation and national security threats.

Do you have any sense of how strictly that may be applied? Someone can take that information and say the person is a possible threat. Everything is a possible threat. Having been there, the psyche of the United States post-9/11 is raw. Do you have any sense of how strictly that may be applied, Minister?

Mr. Toews: Some of our discussions with the Americans indicate clearly their sensitivity to sharing information for other types of law enforcement purposes. They are mindful of that. As has been mentioned here, it is not simply from our own government's expression of concern but internally, they have other advocates who are concerned about how widely information of this nature is shared.

The indications are that they take this quite seriously. The comments of Ambassador Jacobson indicate that the use of this information to other law enforcement agencies out of what we would call the mainstream national security kind of agencies has been very limited, and I think indicates the seriousness by which they are taking this responsibility.

Mr. Gregory: The other element is the fact that they would only be in a position to share with any other agency if a name was a direct hit on a name that appears on their no-fly or selectee list. It is not just a general judgment about whether or not someone may be a national security threat. That person would already have had to go through the process of being named to their no-fly list, for them to know that they have the information. If they are not on a no-fly list or selectee list, then that information and the name disappears from their system after seven days without their knowing it was there. There is a hard trigger.

Senator Moore: Minister, you mentioned that you have written confirmation from the U.S. Could you table that letter with the committee, please?

Mr. Toews: Yes, we will.

Senator Moore: Mr. Gregory, you mentioned the period of seven days. How confident are you that the information will then be expunged from the U.S. retrieval system?

Mr. Gregory: The confidence I have that it would be expunged comes from their final rule. It is what they have said they will do as is contained in their law-making process.

Senator Moore: It is in the Secure Flight Program; Final Rule.

Mr. Gregory: Yes. It is akin to our Gazette process, to our regulatory-making process. It is something that they have said that they have done, and they have a system of checks and balances. It would be up to you to decide whether or not you think they will do that, but I can take that at face value as being something that they clearly state in their law and in their paperwork.

Mr. Flack: You asked why they picked seven days and not another length of time. The information we had from the United States was that in the event you actually had an incident, where an aircraft was overflying and the aircraft was successfully hijacked and crashed, they wanted to have the legal authority to be able to preserve the information for that immediate post-investigation period to understand if there were other risks in place. They could have picked another number but they thought seven days would give them enough time in the aftermath of an incident to perhaps match who the other passengers were and whether people were linked to other flights, et cetera.

Senator Moore: That makes sense.

Mr. Toews: I do have that letter that we referred to from Ambassador Jacobson, and I will leave it for the clerk. Unfortunately, I just have one copy, in English only.

Senator Moore: Is it agreed that we can accept that letter?

The Chair: For practical purposes, we will table it but not distribute it until it has been translated.

Senator Moore: In view of the fact that the United States does not have any diplomatic ties with Cuba, if we are all flying from Ottawa to Cuba and we have to give our information to the transportation people in the United States, is that viewed negatively. Do our names pop up on a list of Cuban sympathizers or something? Would that happen, or with respect to any other state with which the United States may not have proper diplomatic relations?

Mr. Flack: The final rule says the information can be retained only in the event that there is a threat to aviation security or to national security. The best evidence we have is that, of the tens of millions of passengers, only three names have been moved to law enforcement.

Senator Moore, I am aware of concerns about whether there might be an attempt to track businessmen, for example, doing business with Cuba. Legally, the rule does not permit them to do that, nor is there evidence in the practice to date, with this tiny number they have referred, that they would do that. In fact, the numbers indicate that general violations such as an outstanding arrest warrant have not been the focus of what the U.S. rules picked up. It is focused on national security and an immediate threat to aviation security.

Senator Moore: Mr. Gregory, when you gave a briefing to the Canada-United States Inter-Parliamentary Group several weeks ago, I asked a question about reciprocity and the U.S. authorities providing similar information for American passengers coming into Canadian airspace. This began in 2007. We were told this would happen, that the United States was leaning toward this process and that we could expect they would put in place an information and screening system. Did we start to put together our own screening system at that time?

Mr. Gregory: No, we did not, for overflights.

Senator Moore: We have no capacity if this agreement provided for it to receive and to correlate or process that information from American passengers.

Mr. Gregory: We do not. Developing such a system would be very expensive and timely. As you can see from the U.S. timeline, they had a congressional mandate in 2004 to develop a system. It took them three years to figure out how they might do that, to issue their first regulatory notice. It took them another year to receive those comments and tweak it. It is now three years later, and they are close to implementing. The Government of Canada has not decided to implement a system for overflights. No other country in the world has decided to implement a system similar to this at this time.

Mr. Flack: We have two of the three pieces. For flights coming into Canada, we collect, as do most countries in the world, API, advance passenger information, and PNR, passenger name record, information that is screened so it can help our customs officers do assessments of which persons to send to secondary. There is cooperation with the United States on that. That is on the inbound flights landing in Canada.

Canada also has a no-fly list for individuals embarking in Canada, which is the second piece. The third piece though, overflight, we have not put in place, nor am I aware of discussions to look at that.

Senator Moore: I expect I know the answer to this question, but I will ask it just to put it on the record. Do we seek full reciprocity with a country like the United States or any other countries we may be talking to with regard to such issues and decide we do not have the capacity?

Mr. Toews: In this particular case, I think we could insist upon the same standard. I am sure the Americans would comply on the same basis that we are complying with their laws. For example, the issue of overflight of American airspace when the flight is going from one Canadian point to another Canadian point was negotiated and, for some reason, the Americans believe it is not inconsistent with their national security interest. I assume that if we wanted to have an overflight program, the Americans would insist on a similar type of provision so that if they were flying from Minneapolis to New York and cut across Southern Ontario, they would have that same exemption. It would hardly lie in our mouths to say that no, we would request that you provide us with that information in that case.

Mr. Flack: To add to the minister's point, the challenge in Canada is that under our existing privacy legislation the airlines are faced with this dilemma of not being able to share the information. Our understanding is under the U.S. laws the airlines do have the capacity to share that information. In a sense, reciprocity would not require a change in the U.S. legislation. Were Canada to put these rules in place, as we could, the U.S. carriers, as we understand it, would have the legal capacity to share the information right away. There would not be a need for a U.S. legislative change to facilitate reciprocity.

Senator Moore: I have a question concerning Bill C-42. My seatmate, Senator Banks, and I re-read this section. I made a statement and you did here, Mr. Minister that this information is going only to the U.S. Transportation Security Administration. Clause 4.83(1) reads:

. . . despite subsection 7(3) of that Act, an operator of an aircraft departing from Canada that is due to land in a foreign state or fly over the United States and land outside Canada —

This is the important part:

— or of a Canadian aircraft departing from any place outside Canada that is due to land in a foreign state or fly over the United States may, in accordance with the regulations, provide to a competent authority in that foreign state . . .

This reads that if a Canadian is flying Air Canada from Frankfurt to London, his or her information must be given to the foreign authorities. It does not read to me that it is exclusively to the United States. Is that so?

Paul Shuttle, Executive Director and Senior General Counsel, Legal Services, Public Safety Canada: Senator, you are right in terms of the framework as initially enacted by Parliament in 2004. The statute referred to ``foreign state.'' However, under section 4.83(3) the Governor-in-Council can specify to which foreign state this applies.

In the current prescription — it is not in the statute, it is in regulations — the only foreign state so prescribed is the United States. As the law of Canada reads today, it is only the United States to which this provision applies.

Senator Moore: That is a regulation.

Mr. Shuttle: As you see in the clause that you just read, there is the phrase ``foreign state'' and that applies in the two clauses to aircraft departing from Canada to land in some foreign state, which, as currently reads, is only the United States, or departing from a third country, say, France, going to the United States. That is the departing from a foreign country to land in the foreign country. However, the only state to which this currently applies is the United States for landing. Then it is hardwired into the provision for overflight. The statute says it is the United States. For landing, the regulations say that it is the United States.

Senator Moore: Why would you not put that in the statute? How does anyone know that he or she has to go to a regulation to dig out that information? I think it is such an important component of what we are trying to achieve. When you read the statute, it does not direct you to refer to page such and such. How do we know to look to the regulations?

Mr. Toews: It is probably outside of my knowledge about why that was done by the prior government. That was not our decision. Our decision simply deals with the overflights. We have specifically put into the legislation that the overflights deal with the United States. If there is another country with which we want to share that information the statute needs to be amended.

Originally, as passed by then Liberal government, that was done through regulation.

Senator Moore: How do you fix that? Can you change the Order-in-Council?

Mr. Toews: No; you would have to bring statutory amendments to change that, although that is not really the subject of this particular bill.

Senator Moore: No, but are you are satisfied that under the regulation it is clear that this providing of information applies only between Canada and the United States?

Mr. Toews: My understanding — and my officials can correct me if I am wrong because if I am wrong I want to know — is that in respect of any overflight from Canada to a foreign country, the only country we are allowed to share this information with is the United States. That is specifically on the basis of the legislation. If we want to change and add countries on the overflights it must come back to Parliament again.

Senator Moore: Good; that is what I wanted to get clear.

Mr. Shuttle, can you provide us with a copy of that regulation and submit it to the clerk?

Mr. Shuttle: Yes, I can; it is the regulations concerning information required by foreign states. It is Statutes and Regulations 2002-47, SOR/202-47. You will see it in Schedule 3. I will leave a copy of that with the clerk.

Senator Moore: Thank you.

Minister, in summing up, do you think you have been able to get the balance here? I know that you were not assigned an easy task. However, do you think you have been able to have the respect — as much as you can get — in terms of the United States authorities and what they are seeking here and what you want to preserve for our sovereignty and privacy?

Mr. Toews: I noted your comments in the Senate yesterday. I think they were thoughtful comments. You hit the particular issues and concerns.

In terms of the balance, I believe that our officials aggressively advanced our case to the extent that we could. We achieved, I think, more than other countries could have achieved, given the close relationship that we have enjoyed with the United States.

The Privacy Commissioner has expressed some issues, but the fact is ultimately, this is a decision that is made unilaterally by the Americans. Our influence, in terms of achieving a balance, is not one that can be accomplished by coming to the table as an equal bargaining partner. This deals with their sovereign territory.

Do I think we could have got a better deal? No. I think we got an excellent deal. Perhaps, as I say, we got better than any other country could have achieved.

Senator Moore: Mr. Gregory, when you appeared before the Canada-United States Inter-Parliamentary Group you gave us information with regard to when this information must be given. Will you put that information on the record, please?

Mr. Gregory: According to the SFP Final Rule, airlines must submit the secure flight passenger data elements, which are name, date of birth, gender, redress number, certain passport information and certain itinerary information, 72 hours before a plane is scheduled to depart. They must then resubmit the passenger manifest 24 hours before a plane is scheduled to depart because changes always occur during that period of time. They are asked to submit the final list one hour before the plane is scheduled to depart because it might have changed in the moments before the gate closes.

Senator Moore: Mr. Gregory, you said, ``one hour before the gate closes.'' Is that right?

Mr. Gregory: No, it is one hour before the flight departs, which is when the gate closes, I believe.

Senator Moore: When do airlines flying into Canada have to submit their information?

Mr. Gregory: That is a good question; I do not know.

Senator Moore: You mentioned something about ``wheels up'' but I could not write as fast as you spoke. What is the time of that?

Mr. Gregory: It depends how far away the plane is when it leaves. For example, if it leaves from Paris, it is eight hours away. The timing varies.

Senator Moore: They have to provide it to us before the airplane departs the foreign airport.

Mr. Gregory: When the wheels are up immediately after takeoff, they must close that information, put it in an email and send it to the Government of Canada.

Mr. Toews: As I understand, in the case of information that we share with the Americans, we provide it before the plane leaves the ground, whereas Canada receives its information after the plane leaves the ground, which creates some issues that could bear examination.

Senator Moore: Perhaps if a foreign state minister comes to you to look for a similar agreement, we will insist on that.

The Chair: The regular members of the Transport Committee will understand that I was overly generous with our colleague today because he is the critic on the bill. We will get back to the regular timing of questions and answers starting with Senator Nancy Ruth.

Senator Nancy Ruth: Mr. Gregory, following up on your last comment, an airline departing Canada will collect this data and send it off. What happens to the data that is collected here? What do they do with it?

Mr. Gregory: What does Air Canada do with it?

Senator Nancy Ruth: Yes, Air Canada, as an example.

Mr. Gregory: After they have sent it to the United States, they receive a message from the U.S. to say, ``board'' or ``no board'' for all passengers. The airline then boards all passengers. I do not know how long Air Canada keeps the information in their systems but, presumably, they keep some of it for periods of time. They want to give their frequent flyers their points. However, that has nothing do to do with the American law or what we are talking about.

Senator Nancy Ruth: I am curious. What kind of regulation do we have in Canada such that Air Canada cannot transmit that information to some other agency within the country?

Mr. Toews: If an airline were to transmit such information to anyone without informed consent, the airline would breach our privacy laws. The law in place severely restricts the ability of airlines to share that information for any purpose other than a purpose specifically authorized by the passenger.

Bill C-42 gets around specific informed consent in respect of overflight information. Whether the passenger specifically provides consent, that information is provided. In the case where Air Canada receives this information in the course of its business so that passengers may buy their tickets and reserve their seats, Air Canada would not be allowed to share that information unless there has been some other specific authority to share it with a specific corporation or individual. That is my understanding of the law.

Senator Nancy Ruth: In your speech, you said:

We have written confirmation from the Americans that passenger information will not be forwarded to other agencies except in extremely limited circumstances and then only for aviation or national security purposes.

You pointed out that there have been three such cases. Were those three cases Canadian or were they three cases in general?

Mr. Gregory: We probably would have heard about it, senator, if they were Canadian. The U.S. Secure Flight Program was implemented domestically in early 2009. Those three cases happened for domestic flights or for flights from third countries into the United States. Certainly, I am not aware of any of them being Canadian.

Senator Nancy Ruth: How do we know when they are doing that? What kind of proof will we receive that they are not transmitting more than they say they will transmit? Where is the check for us?

Mr. Toews: For the most part, the check is in internal laws of the United States that govern their law enforcement agencies and their airlines. They face the same rigorous examination by advocacy groups and individuals that we face in Canada.

The U.S. is an open and free democracy with similar values and types of checks and balances to those that we have in Canada. We have to take the ambassador at his word that the names of only three individuals have been shared with law enforcement agencies and for the specific purposes that he mentions. I would assume that there would be some fairly significant legal repercussions both civilly and criminally if that were not the case.

Senator Nancy Ruth: Thank you, minister. You talked about the costs of implementing such a system and that Canada has not done this at this time. Have any other countries approached Canada to date to ask for similar data?

Mr. Toews: I am not aware of any. I do not think any discussions to that effect are occurring, to my knowledge.

Senator Mercer: Thank you, minister and officials, for being here. I will follow up on Senator Nancy Ruth's question of the information gathered by an airline in Canada. Who receives that information in Canada? How long do they keep the information?

You have told us what happens with the Americans; and we have to take it on good faith that they will live up to their commitment. However, regarding the information collected in Canada, who receives it and how long is it kept?

Mr. Toews: I understand that this is purely a matter of contractual relationship between a passenger and the airline. That contractual relationship is governed by our privacy laws. For example, if you, as a senator, choose to take a flight to Winnipeg from Ottawa, your staff would provide certain information to the airline. Based on that information, you are issued a ticket, and you fly to Winnipeg. The airline keeps that information as a matter of private contract between you and the airline. The authorization that you provide when buying your ticket does not authorize the airline to provide that information to a third party, for example, a rental car company, unless you have specifically consented to the release of that information to the rental car company. When you are online and see the question, ``do you consent to receiving promotional material,'' et cetera, it is likely that the reply box has been checked already for you, so you have to uncheck that box so that the information is not shared with their promotional staff, et cetera.

I do not believe that anything restricts the airline company from retaining your information for its private purposes to which you have consented. That is my understanding of the privacy laws in Canada.

Senator Mercer: I am looking to the officials because I thought someone else wanted to comment. However, let us continue.

This is the only country in the world that requires this.

We know — all of us in this room and all of the people listening to us today — that the 9/11 terrorists did not originate in Canada. They came from within the United States. However, sometimes the Secretary of the Department of Homeland Security has trouble remembering that, as do some members of Congress.

If the terrorist threat becomes greater around the world — and we hope, it does not — more and more countries will look at what the Americans have done here and suggest that perhaps this is the way to go.

During this process, the American government has found three people of interest out of the hundreds of thousands of people that fly during a year. We have no idea what has happened to those people, if they have been prosecuted, and so on.

You said we do not have a similar system in place, and you talked about the prohibitive cost of such a system. Do we have at least a skeleton of a plan to do this, if worse comes to worst down the road?

Mr. Toews: Let us look at it from the point of view of other countries saying that they want to follow the American example. I am not exactly sure what would be the best example, but let us look at someone flying from Southern Ontario to Guatemala. I am not even sure if there are direct any flights. Usually, we stop in Miami or somewhere. Let us say that Mexico says they want exactly the same system.

The strength of the amendment that has been put into the legislation is that we, as parliamentarians, both the House of Commons and the Senate, would have to examine whether we are prepared to share information of this nature with Mexico. What safeguards are in place? We would have a full and robust discussion in both houses.

On reflection, I think it is a prudent amendment to have placed into the legislation. That discussion needs to take place in view of the privacy concerns that many of us have with respect to the sharing of information. I might not have a particular concern about sharing my information with the Americans, but I may have greater concerns with sharing it with some other countries, and I am not singling out Mexico. I am simply saying that, for that reason, the amendment is a prudent one and one I fully support.

With respect to it coming to us and we say, ``Look, we are concerned about this particular country because of lax boarding regulations and the like,'' we need to look at issues of providing that information to Canada prior to the wheels lifting off the ground so that the authorities can make decisions before the plane is in the air. It is always tougher to turn that plane around once it is in the air. Whether we would have to go as far as the Americans have gone is quite another thing.

With the discussion that we have having now with the Americans on the perimeter security, that affords us the opportunity, in looking at flights coming from overseas, to discuss what would be a reasonable approach for these planes coming into Canada and the United States. If we are to have some kind of perimeter security, in order to facilitate the movement of goods and people across the 49th parallel, or the equivalent in Eastern Canada, we will need laws or regulations that are basically substantively the same as the Americans. We will have that discussion sooner rather than later in terms of what safeguards we need. I am not convinced that we need to go as far as the Americans have gone with the overflight and some of their other points, but I am willing to have that discussion.

Senator Mercer: I have a point of clarification. The information that a Canadian airline collects — and the minister told us that because of our contract with the airline, they keep it — do I understand that they are allowed to keep that in perpetuity? Is there a limit on how long they keep that information?

Mr. Toews: I do not believe there is any law that would require a private company to purge itself of that kind of information. I do not believe there is any law.

Mr. Gregory: The law that provides guidance to companies on these matters is PIPEDA, the Personal Information Protection and Electronic Documents Act. Section 5 of that act refers readers to the schedule. The schedule lays out some basic principles that companies need to be aware of when they are handling personal information. One of them is that when you are collecting the information, you have to tell the person why you are collecting that information. If you share that information with someone else, you have to ask your customer for consent. You have to limit the collection to only those matters that are reasonable.

Senator Johnson: Minister, I think we have had a full discussion of this bill, and I believe your legislation is what we have to do. When we were denied full exemption by the United States originally, did we get a clear reason? They gave us a domestic reason, but not the international reason. Was there any specific reason?

Mr. Toews: Basically they told us, ``Look, this is the law of the United States. You got an exemption to some extent, and that is as far as we are willing to go.''

Senator Johnson: Have we heard of any more rules from Department of Homeland Security that might be coming our way with respect to this matter or matters relating to flyovers?

Mr. Toews: I am not aware of any related specifically to flyovers. Our relationship with the Americans is improving significantly. For example, when we had the incident of the bomber in Detroit and the failed bombing on Christmas Day, the immediate barriers that went down across our boundaries was significant in terms of the financial, economic, trade and travel repercussions. We felt those repercussions immediately. We did not see the same reaction last year or a few months ago when we had the problem with the Yemeni cargo plane and the explosives on that plane. As I have said publicly before, I received a phone call from the Under Secretary of Homeland Security almost immediately to advise us about what was happening, thanking us for our cooperation, and working together. We did not see the same kind of economic and other ramifications. By working closely with the United States on these issues while preserving our principles, we can move ahead in terms of trade, travel and security.

Senator Johnson: I agree, Mr. Minister.

Senator Meredith: Thank you, minister, for appearing. This question jumped out when Senator Nancy Ruth and Senator Mercer asked questions with respect to information gathering.

We look at how we will protect Canadians that are flying into the United States. What procedures are in place should a Canadian be identified as not being allowed to fly into the United States? How are they notified, and how do they clear their name?

Mr. Toews: The notification would be pretty quick: ``You are not getting onto the plane.'' The redress is what is troubling and concerning you. I think that is a legitimate concern. The Americans have set up a redress system. You would apply to the American agency. It is not our system. Other than the general assistance that a member of parliament or a senator can provide to that individual, the remedy is within the American system. You go online, fill out a form, and get the redress done that way.

Senator Meredith: We are not providing any kind of support to expedite it. For example, I am a travelling businessperson. I have travelled to Europe and now, unfortunately, my name has been flagged for some particular reason. There is no mechanism in place that will support a Canadian businessperson whose name has been flagged so he now cannot do his business.

Mr. Toews: The Canadian government could not set up a mechanism to assist a Canadian citizen in clearing his or her name. The redress system is an American system. Other than the general assistance that is provided through consular services or through your member of parliament or your senator, there is no system.

Senator MacDonald: Minister Toews, it is great to have you here this morning. I sponsored this bill in the Senate, so I am quite familiar and comfortable with the content of it.

Could you impress upon the committee what sense of urgency is attached to this bill concerning the American and Canadian aviation industries?

Mr. Toews: This is an urgent bill and that is why I appreciate Senator Housakos' comment that if there are amendments to be made, that they be made through a private member's bill rather than holding up this particular bill.

In my discussions with the Department of Homeland Security and Janet Napolitano directly, she indicated that the deadline is imminent. I am surprised that the impact has not been felt already. I think we have somehow gotten a period of grace of a month or so, but every indication was that this would be in full effect in the beginning of 2011. We are already on borrowed time in that respect.

Senator MacDonald: I assume the Canadian aviation industry is just as adamant?

Mr. Toews: They are absolutely supportive of this in every respect, and very concerned, given the devastation it would cause to their industry should this be implemented and they would not be allowed to provide that information.

The Chair: Thank you, Mr. Minister. We accept your cooperation. We know you have to leave. We know that you have offered that your officials can stay on after you leave.

Thank you, Mr. Minister.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-42, An Act to amend the Aeronautics Act?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, stand postponed?

Hon. Senators: Agreed.

The Chair: We have a nice short title this time. It is not complicated.

Shall clause 2 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill carry?

Hon. Senators: Agreed.

The Chair: Does the committee wish to consider appending observations to the report?

Hon. Senators: No.

The Chair: Is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: I will try to do that today if the clerk is ready to support me on that. Will someone move that we adjourn?

Senator Johnson: So moved.

The Chair: Thank you very much for your cooperation.

(The committee adjourned.)