Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 3 - Evidence - March 16, 2004
OTTAWA, Tuesday, March 16, 2004
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-7, to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety, met this day at 9:36 a.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Transport and Communications is now in session. Today, we begin our study of Bill C-7, to amend certain Acts of Canada and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety, which was referred to the committee by the Senate on Thursday, March 11, 2004.
Before we start our formal hearing of witnesses, I would note that a practice has developed in some Senate committees when dealing with certain bills to pass a motion at the beginning of the hearings to indicate that there will be no attempt to dispose of the bill in committee until all scheduled witnesses have been heard — in other words, no votes until we have finished hearing the testimony. I have discussed that with members of the steering committee, who agree that this would be a useful practice for us to adopt in this case. Perhaps the committee would be interested in adopting a motion along the lines of the following:
That with respect to Bill C-7, to amend certain Acts of Canada and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety, the Chair shall receive no motions dealing with the final disposition of the bill in committee prior to the completion of the hearing of all scheduled witnesses.
Would anyone like to move that motion?
Senator Phalen: I so move.
The Chairman: All in favour?
Hon. Senators: Agreed.
The Chairman: Opposed?
Motion carried.
Thank you very much. It does tend to make the work of the committee smoother and more effective when we do this. I am grateful to you.
[Translation]
It gives me great pleasure at this time to invite our witnesses to the table. I would just like to clarify for the benefit of senators that almost anyone can come and give testimony on certain aspects of the bill. This is a very complex piece of draft legislation, one that involves many departments and fields. We will start by hearing from a few "main'' witnesses.
We will begin with Mr. Read, Ms. Besser, Mr. Clark and Ms. Normoyle, whom I invite to come forward.
[English]
Since this bill is quite large and complex, these officials will be providing us with a technical briefing in advance of our hearings on Thursday, when we shall hear from the Commissioner of the RCMP, the Privacy Commissioner, the Canadian Bar Association, the Muslim Lawyers Association, the International Civil Liberties Monitoring Group and other groups. We will hear from the Deputy Prime Minister and the Minister of Transport at a later meeting. We also expect to hear from the director of CSIS, the Airport Transport Association of Canada, and Air Canada.
This is, if you will, our committee's opportunity to get the expert briefing on this bill before we start hearing witnesses from the public.
Witnesses, welcome to the committee. Please proceed.
Mr. John A. Read, Director General, Transport Dangerous Goods, Transport Canada: Honourable senators, the number of onlookers in the room this morning reflects the fact that this bill amends 23 acts of Parliament. Several of the people present may come forward to answer specific questions on certain matters. If I were to call someone forward, I would introduce him or her to you at that time.
My general opening remarks are applicable to the entire bill and certainly to the Transport Canada portions of the bill.
I will not read the summary included in the bill; it is a good summary and gives some quick indications of what each part is about. Instead, my remarks will be general. I want to distinguish between response to safety concerns and response to security concerns. We often get that kind of question and you will have a better feel for the bill, I believe, if I make that distinction.
To assist in distinguishing "safety'' from "security,'' I have a characterization of those terms.
For "safety,'' the phrase I use is as follows: "If everyone tries to do the right thing, and we have an incident, that is a safety problem.''
For "security,'' it is a little different: "If at least one person tries to do the wrong thing, whether or not we have a serious problem, that is a security concern.'' There is a difference between the ways we do things.
The Minister of Transport is responsible for administering 40 acts of Parliament, and he shares responsibility for approximately 18 more. Many of those address safety, which is our bread and butter. It is safety for transportation by road, rail, marine or air. I am making reference to "safety,'' so I can make the comparison with "security'' when I get to the conclusion.
For today's purposes, I will characterize safety by referring to accidents and observing that most people would agree that if we had no accidents, we would have a safe system. In reality, what we seek to ensure is an acceptable level of safety, meaning that although we cannot reasonably expect to reduce the number of accidents to zero, we must reduce them to an acceptable level.
How is that done? First and foremost, by having an understanding of what could go wrong and what the consequences could be. We conduct considerable research into the design of transport vehicles, rail cars, aircraft, trucks, et cetera, their operation and the training of the operators. In addition, considerable research is conducted on the causes of accidents.
Such results provide, among other things, the ability to make useful predictions. Because one can predict with some confidence how a transport system would perform in light of given conditions, laws and regulations can be proposed to improve safety. Transport Canada has a long history of improving safety based on predictable types of accidents and their generally predictable consequences.
When we turn to security issues such as dealing with minor vandalism and theft, it is similar to dealing with traditional safety issues. However, terrorist events are in a class by themselves. Whereas accidents and their consequences are statistically predictable over time, terrorist events are not.
With respect to safety, when everyone wants things to work correctly, you can maintain a high level of safety by random inspections and by audits. With respect to security, when at least one person wants something to fail spectacularly, you have to inspect everything to avoid that failure.
Not too long ago, air travel was an enjoyable adventure. Today, all objects that persons intend to carry on to an aircraft must be screened, and the atmosphere is different. Screening all objects is a reasonable response to bombs and to armed hijackers. The theory was, keep the bombs and weapons off the aircraft and the aircraft will not be threatened.
However, terrorist acts are not predictable. Five people working together, essentially without weapons, captured an aircraft and committed suicide by flying the aircraft into a building. In doing so, they committed multiple murders. As we all know, it was not just one aircraft that was captured and used in this fashion. We must consider that a major, unpredicted terrorist event could be attempted in Canada.
We would like to prevent such an event, but if we were to fail, we would like to be prepared so that we may properly respond. I have two examples to illustrate these two goals when we consider security.
A flight from Toronto to Vancouver involves a large aircraft with a large fuel load. It will fly over several Canadian cities as well as close to several American cities. I can buy a ticket on the Internet, check in using an electronic kiosk, have only my possessions screened at the security point and, at the time of boarding, show any document with both my picture and the name I used to buy my ticket and I can board the aircraft. Under Canadian law, no one can examine who I am from a security point of view for this flight.
More generally, even if authorities knew the name of a suspected terrorist who may be in Canada and would like to ask an airline to check if that specific person has an airline reservation, it cannot be done under Canadian law. From a security point of view, we do not know who is flying and we are not allowed to know. Being in such a position is not helpful in trying to prevent terrorist attacks.
Consequently, Bill C-7 deals with the topic of assessing all persons to be on board an aircraft, just as all goods to be carried by passengers onto an aircraft are screened. That is for prevention.
Concerning response to a terrorist attack, the provision I will highlight in Bill C-7 is the interim order provision. An important element common to all interim order provisions is that they are only to be used for immediate response to an emergency.
Since an interim order is just a regulation, one might ask why we do not propose to make the regulation well in advance of the emergency, as we do for safety considerations. In response, I note that safety concerns are predictable and we can determine what regulations we should have in place before the safety failure occurs. Terrorist attacks are not predictable, and we cannot determine what regulations we should have in place until the nature of the event is clear.
As pointed out by Senator Day in his speech in the Senate, we may wish to protect a nuclear reactor, for example — Point Lepreau or Gentilly. If we were to protect Gentilly, it would not be appropriate to put regulations in place today to close the Seaway in advance of a credible threat.
Regarding the second example that was offered, we cannot add new dangerous diseases to the schedule of the Quarantine Act before they are identified, and most importantly, given the unpredictable nature of terrorist acts, we just might not be able to think of everything ahead of time. That is the one that worries us most.
In conclusion, having touched on interim orders, I note that four important questions are associated with these. First, why are interim orders needed? Second, why not use the Emergencies Act? Third, if the Emergencies Act is not appropriate, why not provide for parliamentary supervision of interim orders that is as complete as the parliamentary supervision provisions of the Emergencies Act? Fourth, what is the effect of an exemption under section 3 of the Statutory Instruments Act?
To answer each of those questions takes a certain amount of paper. We have prepared an issues paper that we can later present to address these questions, and we would speak to this at a later time or whenever the committee prefers.
The Chairman: If you have it now, then it can be circulated now.
Mr. Read: Thank you. This is just as I would offer for the opening remarks, which is that there is a grand distinction between safety and security; the fact that security has two aspects to it that are of intense interest to us. The first is prevention and the second is response. Our actions on September 11 were entirely response-driven. We were not involved in prevention.
I would like now to pass to my colleague from Public Safety and Emergency Preparedness Canada for his remarks.
[Translation]
Mr. John Clark, Deputy Director General, Policing Policy Directorate, Department of Public Safety and Emergency Preparedness: I would like to thank the committee for the opportunity to address the data-sharing regime in proposed section 4.82.
The first question that comes to mind is: Why is proposed section 4.82 needed? Essentially, it was designed to allow designated RCMP and CSIS officers to access air passenger information for inbound and outbound international flights as well as domestic flights. There are three main reasons why such access is necessary.
[English]
First, we have an air carrier protective program in Canada in which armed, plainclothes RCMP officers are placed on some high-risk flights. The RCMP requires access to passenger information to assist them in determining which flights need to be covered by these aircraft protective officers, and once a flight is selected, to assist in knowing who is on the aircraft to screen passengers' backgrounds for potential risks. Second, CSIS requires the information on passengers to assist in its investigation of threats to the security of Canada.
Third, the proposed access to passenger information will allow the RCMP and CSIS to prevent terrorism and to intercept dangerous persons boarding a plane.
[Translation]
How will it work? A small number of officials, designated by the RCMP Commissioner of Director of CSIS, would be able to access passenger information for specific purposes related to their agencies' mandates.
[English]
The RCMP or CSIS could access passenger information for transportation security purposes, and CSIS could access the information to investigate terrorist threats.
The RCMP would compare passenger information against restricted information contained in a subset of its databases to look for matches against two things: persons who have ties to a known terrorist group; and persons who may pose a risk to transportation security, for example, those with a history of violence.
In the course of analyzing passenger information for potential threats to transportation security, the designated RCMP officer may find a warrant for arrest of an individual for a serious crime listed in the proposed regulations. In such a case, proposed section 4.82 would allow the designated officer to share that information with a peace officer so that appropriate action could be taken.
In order to pursue its counterterrorism work and to contribute to transportation safety, CSIS needs to compare passenger information with restricted information about known or suspected terrorists, or those who may pose a threat to transportation security.
When the government developed this scheme, it gave serious thought to intrusiveness and to finding and striking the right balance between individual privacy rights and overall public safety. To respect privacy, information on travellers who pose no risk to transportation or national security would have to be destroyed, under this approach, within seven days. Designated officers from the RCMP or CSIS would be able to disclose passenger information to a third party under very limited circumstances. One example is disclosure to an aircraft protective officer — again, an armed, plainclothes RCMP officer on a flight — if the designated officer had reason to believe the information to be shared would assist the aircraft protective officer with his duties in protecting the flight.
Any time information is retained or disclosed, written records must be maintained by the RCMP and CSIS designated officers. Those records of retentions and disclosures would be made available for review by Canada's Privacy Commissioner. The RCMP would also be required to conduct an annual review of information retained by its designated officers under this regime. If retention were no longer required for purposes of transportation security or national security, the information would have to be destroyed.
[Translation]
The data-sharing regime is intended to provide the agencies with access to air passenger information that is required to protect the safety of Canadians in an evolving security environment.
[English]
Ms. Debra Normoyle, Head, Immigration Enforcement, Canada Border Services Agency: Honourable senators, the Canada Border Services Agency is pleased to appear before your committee to provide support for this very important proposed legislation.
The Canada Border Services Agency was created on December 12, 2003 and is part of the new portfolio of Public Safety and Emergency Preparedness, which includes national security and border services, as well as emergency preparedness, crisis management, corrections, policing oversight and crime prevention.
The Canada Border Services Agency reports to the Minister of Public Safety and Emergency Preparedness. The Canada Border Services Agency brings together all major players involved in facilitating and managing the movement of goods and people into Canada. It integrates several key functions previously spread among three organizations: the intelligence, interdiction and enforcement programs from Citizenship and Immigration Canada; the customs program from the Canada Customs and Revenue Agency; and the import inspection at ports of entry program from the Canadian Food Inspection Agency. The Governor in Council transferred the control and supervision of the intelligence interdiction and enforcement programs from Citizenship and Immigration Canada to the Canada Border Services Agency. Similarly, the control and supervision of the Canada Border Services Agency were transferred to the Minister of Public Safety and Emergency Preparedness Canada.
Border security concerns are a primary focus of the Canada Border Services Agency, whereas immigration policy and immigration application processing remain the jurisdiction of Citizenship and Immigration Canada.
We wish to briefly highlight those aspects of the bill that pertain to programs undertaken by the Canada Border Services Agency and, in particular, the border protection aspects relevant to the agency. The tragic events of September 11, 2001, have made us all more keenly aware of the need for effective measures to help protect the safety and security of Canadians. At the same time, Canadians need to be assured that concerns for a balance between privacy rights and vigilance are being addressed. The Canada Border Services Agency recognizes, and is committed to achieving, these objectives.
One of the most effective ways to secure our borders is to identify and intercept persons posing security risks as early as possible and as far away from Canada as possible. To do this and to sustain our border security initiatives, the Canada Border Services Agency needs the capacity to exchange information with key partners. The Canada Border Services Agency is a key partner with our domestic agencies and internationally with the U.S. and other allies in the fight against terrorism.
Under the Smart Border Declaration Action Plan signed by then foreign affairs minister John Manley and U.S. Secretary of Homeland Security Tom Ridge on December 12, 2001, the Canadian government made a commitment to share information with the U.S. to stop security threats from entering or remaining in our respective countries. The ability to share this information will allow us to sustain our border security initiatives, which, in turn, will allow us to sustain Canada's economic security.
Protecting the physical safety and security of Canadians, the economy of Canada and the privacy rights of Canadians are priorities for the Government of Canada. We are moving forward in a deliberate and thoughtful fashion, recognizing the need to achieve all three objectives. We want to ensure that we continue to have all necessary tools to address future security threats while at the same time respecting privacy rights.
Clause 72 of Bill C-7 creates a proposed section 150.1 in the Immigration and Refugee Protection Act that authorizes the making of regulations with regard to the collection, retention, disposal and disclosure of information for purposes of the act while ensuring that the process remains transparent and open to the appropriate levels of scrutiny. It also addresses the disclosure of information for the purposes of national security, the defence of Canada and the conduct of international affairs. This is consistent with other provisions in Bill C-7.
Bill C-7 provides for the creation of conditions to govern and/or restrict the purposes for which the Canada Border Services Agency may collect, retain, dispose of and disclose information. This is an important provision of the bill that will help to ensure that the privacy rights are protected, without restricting the government's legal authority to act to address security threats.
Any proposed regulations related to the sharing of information will go before the responsible committees of both the House of Commons and the Senate. The committees may opt to hold public hearings that would allow input from the public and other interested groups on these regulations. Such scrutiny will serve to increase transparency and overall accountability.
Bill C-7 is one of many initiatives the government has undertaken to better protect Canadians since the events of September 11, 2001. Canada and Canadians will benefit from information-sharing, as we will also have access to information that other countries have. This will increase our capacity to screen out terrorists, war criminals, human smugglers, traffickers and other serious criminals. It will also give us the tools we need to keep Canada safe while safeguarding individual rights to privacy.
Senator Corbin: May we have copies of the statements just made? It is pretty hard to follow everything.
The Chairman: I was making inquiries about that. It is my understanding that we do not yet have fully translated versions of all your documents. We would be grateful to have anything you have.
[Translation]
Senator Corbin: I am bilingual, but I would like a copy of the text.
The Chairman: You are more than just bilingual, Senator Corbin. I would say that you are perfectly bilingual.
[English]
Mr. Read: We will provide you with what we have now and will provide bilingual copies later today.
The Chairman: Please furnish us with what you have today and then send the translated copies later.
Mr. Read: We apologize. We were told it was not necessary. Perhaps someone did not tell us the exact state of events.
The Chairman: Committees vary and committee members vary. This committee really likes paper.
Mr. Read: We will provide them for you in both languages today.
The Chairman: I see documents appearing as we speak.
Senator Andreychuk: The last exchange points out how difficult and complex this bill is. It takes into account so many objectives. That is one of my concerns.
Mr. Read, you pointed out that you are trying to address safety and security. Security is very different from safety issues. We should approach them differently. In this act, we are trying to cover everything, from a SARS situation, a plane exploding, a nuclear power plant being attacked or water being contaminated to a certain group of people being targeted. The last statement said we are even going after war criminals under this proposed legislation, not just terrorists and nefarious activity.
My difficulty is that it was hard to understand in this bill what you are doing with each provision. They seem to have been made to cover everything, so that it is difficult for Canadians to understand what their rights will be after this bill is finished. You say you want to cover all these things, but this bill was in this form right after September 11. It was one of the three initiatives from the government.
Would you not agree that, originally, it was intended only for the security issues and now has been expanded to cover just about anything that could happen?
Mr. Read: You were correct in observing that I did talk of safety, and the point I was trying to make was Transport is very sophisticated in dealing with safety, if I can say that about us. We have been working on safety for a long time. Because safety is so predictable, we can put in place requirements such that railway tank cars will last certain periods. We know exactly how to deal with them, how to deal with couplers, keeping aircraft in the skies and the rest.
Terrorism is a new threat that faces us, and we cannot predict how people will respond under it, how the terrorists will react or how we will be subject to potential problems.
After September 11, the biggest lesson that we learned in Transport Canada — and I speak from experience, as I was the person sitting in the chair controlling the events on that day, when we discovered that we had one aircraft entering our airspace every 90 seconds — was that we had to make decisions immediately. Fortunately, our Minister of Transport had the ability at that time to control airspace, so we had the tool needed to respond immediately. Within 60 minutes of the second plane flying into the tower, we had turned aircraft back to Europe; we had designated landing spots in Atlantic Canada; we had diverted all the air traffic; and we had notified Customs, Immigration and the RCMP. We had all departments mobilized. We had the tool that we needed at the time.
We then sat down afterwards, and everyone said, "You know, for example, under the Quarantine Act, if we had a release of smallpox in Europe, we might want to react instantly to add smallpox to the list under the schedule, and we would not have time to spend 24 or 48 hours or whatever length of time going through the regulatory process.'' That was the birth of this interim orders concept, which is not unique and not new, because it already exists in two acts of Parliament: the Aeronautics Act and the Canadian Environmental Protection Act. We wanted that in place so that we could respond to terrorism. We cannot predict, and we are not ready to predict to you, that there will be an attack on a subway system in Canada and therefore we will do the following; or there will be an attack on trains, so we will do the following; or there will be an attack on aircraft of the following sort, a chemical attack or a man-held rocket attack. All of those things are unknown to us, and the point is you cannot put yourself into a defensive posture ahead of time, as I indicated, for example, with the Gentilly nuclear reactor. If we have a serious threat of attack by sea and we close an area of two miles, it closes the Seaway. You do not want to do that. If we had a threat that someone was to set up a bomb in Bayshore Shopping Centre and we want to put guards at the doors, we do not want to do that today. We want to do that when the threat exists.
We are sitting here with the difficulty of wanting to prevent things, and Bill C-36 focused more on trying to prevent events, interdicting terrorists. This bill focuses, in general, more on response. If something has happened, we also should be prepared to respond.
Senator Andreychuk: That is precisely what I am saying. We overreacted or reacted appropriately — I am not making that judgment — on September 11. We responded with Bill C-36. This bill seems to say the next attack could be on a subway, as in Spain. The next attack could be anything that anyone's mind may conjure. Therefore, you want to be in a position of readiness to respond instantly, should someone reasonably believe that there is an imminent issue. It is that broad. That person is a minister.
We will not know exactly all of the information upon which a minister makes that interim order and that decision. My concern is why there are not some further mechanisms in the orders to make them more succinct. You cannot cover everything in the world, but you cannot give a minister carte blanche to do anything to us at any time because it might be in the best interests of our safety and security. That is absolute power that does not occur in democracies. It occurs in dictatorial regimes, being that pervasive, as you put it, without some kind of parliamentary scrutiny or accountability or clauses that are more specifically stated. They are too vague, in other words.
Mr. Read: To be very specific on this point of what could be done under an interim order, an interim order is a regulation. You can only make an interim order if the act under which you are making it could make it as a regulation. There are things that are under the control of the Quarantine Act. You can only make a regulation — interim order — with respect to the regulatory power of the Quarantine Act. You could not, under the Quarantine Act, regulate subway systems. Therefore, you could not put an interim order in place under the Quarantine Act to regulate the subway systems. There is tight restriction on what can you do in each act. It is based on the regulatory authority of each act. Therefore, it cannot be broad.
The second point, which we can discuss later, perhaps, because it will take some work to go through the Emergencies Act to show you, is that we have as much or more parliamentary supervision of interim orders as we do under regulations made under the Emergencies Act.
Senator Andreychuk: I would like to leave my questions on that because, with respect, I disagree that a regulation and an interim order are the same. They may be alike in some ways. I would like to cover the specific orders.
With respect to administration, your scrutiny of airline passengers is pervasive and information can be passed on to other countries, and my point was that the next attack might not be on an airline. It could be a subway, a bus or a ship; therefore, this pervasiveness in the air traffic system with respect to how we retrieve information worries me. The classic case, we said over and over again, is Arar.
If we are talking about safety and security for Canadians, why have we put into the Immigration and Refugee Protection Act Part 11, which was in, then out and has been in a couple of times, that the disclosure of information is for the purpose of national security — the defence of Canada — and now it says "or the conduct of international affairs''?
This bill contains measures that go way beyond security, defence and safety issues. We now have interesting ways to provide information to third parties. This goes beyond the contemplation of the main act.
Mr. Read: I would quickly make the point again that, for security, one must look at all objects that a passenger carries on board an aircraft. Similarly, one must look at all the people who board an aircraft. How we do that is up for discussion, but the necessity of doing that is critical.
Because Canada is facing international terrorism — this is not a problem local to Canada — Canada must participate with other countries in sharing information on international terrorism. That is the essential gem at the centre of this.
Senator Phalen: Transport Canada stated before the House of Commons committee that this bill also clarifies the provisions that cover requests for information made to air carriers from other countries. Is it correct to say that other countries may request airline passenger information if the flight is destined for that country? If so, do they receive passenger information directly from the air carrier or from Transport Canada, CSIS or the RCMP? I am confused about just who can give that information.
Mr. Read: We do not have that information. The airline provides the information directly to the other country. Bill C-44 amended the Aeronautics Act to permit an airline landing in a country that requires this data to provide that information before the aircraft departs Canada. The information is restricted to 34 data elements. Those are the same data elements that you will find at the back of this bill. Currently, only one country has asked for that data, so the regulations show only one country and that is the United States. The only country to which airlines can provide data is the United States and they are limited to those 34 data elements.
Senator Phalen: Are there any safeguards on the use, disclosure and retention of information when it is disclosed to other countries?
Mr. Read: The situation in the United States is that this information must be presented when the aircraft arrives there. That is their law concerning their sovereign territory. They decided that people who want to enter their country must provide certain information.
We have permitted the information to be provided before arrival in the United States, obviating the need for the aircraft to sit on the runway for a half-hour while the data is processed. We have no control over what the Americans do with it. It is a condition of entry for people wishing to go to that country.
Senator Phalen: Under what conditions would they be allowed to release that information?
Mr. Read: Do you refer to the United States?
Senator Phalen: Yes. What must happen to allow someone to release information on that person? What must he have done? How serious is it?
Mr. Read: The objective is the same as in Canada. They wish to know, for example, in an extreme case, if there is an international terrorist on board a flight. They wish to know that before the plane arrives in the United States.
As Ms. Normoyle pointed out, we want to know who is coming into Canada while the aircraft is still as far away as possible.
Senator Phalen: How serious would the offence be? Are you saying the person would have to be a known terrorist before you would release information?
Mr. Read: We do not have the information, senator. The airline has the information. The United States requires information on all persons entering their country. The persons must present that information upon arrival or they may not enter the country. That is a condition of entry. We have here a facilitation matter. You either provide the information before you leave Canada or when you arrive in the United States. If you provide it when you arrive in the United States, you must wait until it is processed.
Bill C-44 said the information could be provided before you leave Canada. It is like the pre-clearance that we have in Canada. We do the screening of persons and baggage in Canada. When you arrive in the U.S., you get off the plane and go about your business. This is the same idea. These data, which could be provided in the United States, is provided instead by the airline from Canada and processed by the U.S., as they would have processed it in any case, in the end.
The Chairman: The question is beyond the purview of this bill but it does help our general understanding of the situation. Without this information, the Americans will not let the plane into their country. Once they have this information — quite a lot of information — are there any safeguards on their use of that information?
Senator Andreychuk: What do they do with it?
The Chairman: Do they match it up with FBI information? How does it work? Do we know?
Mr. Read: The question involves the concept that we can control what happens in other countries. To enter Russia, one would have to provide certain data. That might be unpleasant, but nevertheless, control of what Russia did with the data they collect is beyond us. To suggest we could control what the U.S. does with the data is not right.
What they intend to do with the data — as you see publicly — is create a final centralized system called CAPPS 2. That stands for computer-assisted passenger pre-screening. The objective is to place people in one of three categories. One of those categories would lead to refusal of permission to board the aircraft. The second category requires more complete screening. The third category is to be treated like everyone else, with normal screening and boarding of the aircraft.
They will use algorithms, as they call them, to assess all the data. They would not give us the algorithms. We asked them how they deal with it and they said they do not even tell most departments in the U.S. government what they do. At the end of their analysis, passengers are coded red, orange or green. They do not do anything else with the data, other than come to one of those conclusions. They will not tell us about the rules or the algorithms whereby they draw their conclusions. We know roughly how it is done. We do not know how they do the scoring.
Senator LaPierre: What do we do with the information that we collect from the Americans who enter our country? They may be terrorists. Do we have the same rigid way of looking at the Americans? Terrorism was born in the United States. Consequently, we must protect ourselves from the terrorism that exists in the United States. Do you gather information from every American who comes into Canada? Do you put it into a machine? What do you do with it?
Mr. Read: That is a question for the immigration enforcement people. Yes, we check all people who come into Canada to see if there are international terrorists.
Senator LaPierre: Do you put that information into a computer? Do you target people? Do you do what the Americans do?
Mr. Read: We do not have a program such as the Americans are developing under CAPPS 2. I will ask Ms. Normoyle to elaborate.
Senator LaPierre: If I understood correctly, Ms. Normoyle wants us to do the same thing?
Ms. Normoyle: No, that is not correct. Are you referring to Part 11?
Senator LaPierre: I am referring to whatever you described to us, in which the privacy rights of the Canadian people are being abused by this intolerable act, madam.
The Chairman: Senator LaPierre?
Senator LaPierre: Have I gone overboard again?
The Chairman: I think we really must distinguish here between what Americans do in the United States, which is their sovereign right to do — they have the right to set up conditions for entry into their country — and what we do here.
Senator LaPierre: If the actions of the United States will hurt and humiliate our citizens, then we should do the same thing to them when they enter Canada. We do not because we are scared stiff.
The Chairman: We do. Do we not plan to collect data on incoming flights as well as outgoing flights?
Mr. Read: We do. I would like to make the point that we were the first to refuse carte blanche to the Americans. We are allowing 34 data elements. The U.S. has been in negotiation with the European Community, which has gotten up in arms and has reduced what they will give to the 34 data elements. They did that after we did. We were in the forefront of resisting giving information to the United States. Those 34 data elements were in front of this committee two years ago and reviewed, and they were not things such as what is your religion and so forth. You can look at them; they are in the back of the book. Nothing in there fits into this category of profiling on religious grounds, et cetera. Those are 34 data elements on which we led in dealing with the United States. The European Community has now followed.
Senator Graham: I have to declare a geographic conflict here, Madam Chair, since Mr. Read comes from the same part of this beautiful country that I do — for Senator Phalen's information. He is a Caper, too. For those who do not know, that is someone who comes from Cape Breton, and we are very proud of the work that Mr. Read and his colleagues have done in the public service over the years.
My question relates to the fact that the Minister of Transport sponsored the bill in this session of Parliament. Considering that the key goals of the proposed legislation are to increase the government's capacity to protect citizens, to prevent terrorist acts and to respond swiftly should a threat arise, why did the Minister of Transport move to introduce the bill in the third session of the Thirty-seventh Parliament and not the Minister of Public Safety and Emergency Preparedness? Maybe it is just because the office of the Minister of Public Safety and Emergency Preparedness held by the Deputy Prime Minister did not exist in previous incarnations of this bill in other sessions of Parliament. Is that the case? Why should it be the Minister of Transport and not the Minister of Public Safety and Emergency Preparedness, who seems to have a broader oversight in matters relating to this bill?
Mr. Read: That is a good suggestion. On the other hand, only a few small portions of the bill are to be directly administered by the public safety and emergency preparedness department. However, I do not know the true answer, but I suspect it was, as you suggested, a case of inertia. The Minister of Transport has sponsored this bill from the time it was Bill C-42. I suspect there was no grand thought other than the fact it has always been this way.
Senator Graham: How much consultation with carriers such as Air Canada and other stakeholders would you have had before the proposed legislation was brought forward?
Mr. Read: I cannot give you the number of times, but we met often with the Air Transport Association of Canada and with air carriers, and particularly with some of the experts from Air Canada, with respect to the data they have and how we could use them.
Senator Graham: Can you tell us how this proposed legislation compares to what might be termed similar legislation in other countries, and has an attempt been made to make it even better or to harmonize it with legislation in other countries?
Mr. Read: All countries are having difficulty dealing with terrorist events. As I said, we all have a history of dealing with security events. Terrorist events are something different and entirely unpredictable. I have read the U.S. legislation that came out immediately after September 11, which was the Patriot Act, and it is a big stick with which they can beat everyone. It is more severe than anything we have done. They have also put in place other things subsequent to that.
The reasons we want to put this proposed legislation in place are clear, and we have to do something about assessing persons boarding aircraft. Currently, there is nothing.
The interim order provisions are here for response purposes, and if you look at each of them, you will find they are not focused on individuals. They are focused on other things, such as the Quarantine Act or closing the Seaway or matters that are currently unpredictable. We are not the most aggressive in the world, but we are also not the least aggressive. For the moment, we are well placed and there are other things we will have to consider as well.
Senator Graham: At hearings in the other place, the Shipping Federation of Canada talked about September 11 and the fact it necessitated huge capital expenditures at Canadian ports so that they can be perceived as safe ports by U.S. authorities. That was the main goal at one particular time. Everyone wanted to satisfy the U.S.
Then it was pointed out that the Canadian Marine Act prohibited port authorities from receiving appropriations from Parliament. However, U.S. ports receive money from the federal government. Has that changed in Canada?
Mr. Read: That is Part 12 of Bill C-7.
Senator Graham: It provides a remedy for that.
Mr. Read: It removes for a three-year period that restriction on providing funding to ports, and it is here to allow for funding for ports to assist in marine security. The Prime Minister has spoken about that as recently as yesterday, that it was his intention to assist in the funding of port security. The bill includes the provision that would get past the restriction you have just pointed out.
Senator Graham: Some individuals who appeared before the committee have suggested that the bill lacks parliamentary oversight and that we should have annual reports from all ministers regarding their implementation and administration of the act. They would be submitted on an annual basis to the appropriate parliamentary committees, and eventually to Parliament as a whole, and perhaps witnesses would examine ministers responsible and their officials with respect to their administration. Are there any plans for that? Has there been discussion about having an annual report from the ministers responsible?
Mr. Read: Some reports are already prepared on some of these acts. I do not want to get too deeply into proposed section 4.82, but it does talk about annual reports with respect to information that is retained beyond seven days. There is the Main Estimates process in which ministers can be questioned on their activities. There certainly is the right of a committee to ask for us to return next year to give you a briefing on what has happened with the legislation over the past year.
No provision is explicitly stated within the bill, but nothing in the bill says we could never do this.
Senator Beaudoin: This bill is like the son of Bill C-36, with the same weaknesses. It is one thing to give more power to a minister. It is one thing to have more bylaws and regulations. I do not have any problem with that.
However, a minister may never take the place of a court of justice. I agree a minister may have more power, but he does not have the legislative power of the state in his own hands.
This is certainly unconstitutional. If you permit a minister to do something, it must be clear-cut in the statute. If you restrict the power of an individual or a company to have access to a court of justice, you are violating the Constitution.
Right away, I say that the minister may have more power. We have done that often. However, we cannot say in a statute that a minister will do what only a court of justice may do. We have that under the Charter of Rights and Freedoms. We are bound by the Charter. Even the emergency statutes must comply with the Charter of Rights and Freedoms.
If you restrict access to the courts by individuals and companies, are you not encroaching on the powers of the court? How can you give more power to the minister without following what is contained in the division of powers between the courts and the minister? I want the question to be clear-cut.
Mr. Read: I am having difficulty with the question. I do not understand where restricting access of people to the courts comes up in the bill.
Senator Beaudoin: Is it not possible for the Minister of Justice to do things?
Senator Andreychuk: You need to put that question to the Minister of Justice; that is the problem.
Senator Beaudoin: I will put that question to the Minister of Justice. However, I understand that many people drafted this bill. In my opinion, it goes pretty far. For example, an interim order or an exemption must be made legislatively. You cannot invent an interim order. You must have the power to do something. All regulations in our legislation must be authorized by the statute. Regulations are a good thing; I have no problem with that, providing they are within the legislative statute. This is the first principle of the delegation of legislative powers.
The same thing is true of interim orders. The minister cannot invent his own decisions, those must be provided for in the statute. My impression is that we are inclined to give too much power to the minister and not enough to the courts. This is something to which I object.
Mr. Read: Now that I have understood the part of the question on the denial of access to the courts, I believe you are referring to Bill C-36.
It is not unusual for a minister to be given the ability to make regulations. We found 17 acts in which ministers have that authority.
With respect to interim orders, the bill is restricting the minister to the regulation-making authority that he has. He, or the Governor in Council, must be capable of making something a regulation before it can be made an interim order. You cannot do anything willy-nilly. You must stay within the scope of the regulatory authority of the act under which you are making the interim order. That must happen.
It is also important and useful to recognize that as soon as the interim order is made, it immediately stands referred to the Standing Joint Committee on the Scrutiny of Regulations. As per the amendment that was made last year, section 19.1 of the Statutory Instruments Act, they can examine that immediately and can move to have it revoked, should they so wish. There is immediate parliamentary supervision of an interim order; it instantly stands referred to a committee.
First, there is a strict boundary within which one can make the interim orders. One cannot make them about anything. They must be within the regulatory-making authority of that act. Once they are made, there are conditions. They must be approved by the Governor in Council in 14 days, published within 23 days — the whole scheme — and they are instantly referred to the Standing Joint Committee on the Scrutiny of Regulations, which can then take them apart should they wish to do so.
On September 11, we had 60 minutes between the time the first and second planes struck. That is a short timeframe. You cannot convince the people in the chain of events in 60 minutes, let alone have regulations enacted within 60 minutes. We must have a tool. We must be able to respond to terrorist events. These are tools I personally hope we will never use. We have them in two acts today. In the past 10 years, each has been used once. The Environmental Protection Act has added a chemical to a list, and Transport Canada implemented a recommendation of the Transportation Safety Board to have seatbelts for flight attendants.
Senator Beaudoin: I accept that the minister may have to make an emergency order, I agree with that. However, you cannot stop the access to tribunals.
Mr. Read: That is not in this bill, sir.
The Chairman: Further to Senator Beaudoin's point, however, this document that you gave us in regard to various elements of parliamentary oversight is very useful. Would it be possible to draw up a shorter document setting out the various avenues of legal appeal, to tribunals, for example, that are available under the various provisions of this proposed legislation? One does get a little lost going from subclause "X'' to subclause "J'' and then back to subclause "F.'' For example, those provisions that are appealed to the transportation safety tribunal, or a tribunal — I have forgotten, do you see what I mean? Could you do a chart for us setting that out?
Mr. Read: Are we speaking about an interim order that has been made or something else?
The Chairman: I am referring to anything in this bill.
If you read the provision on interim orders, particularly with the help of the document that you gave us, the procedure is fairly clear, although I would assume that anyone could still, after the fact, go to court and address the particular interim order in a civil case.
What I am looking for is a small chart explaining what avenues would be available under the various provisions to persons who believed that they should seek legal recourse. Is that possible? Can that be done?
Mr. Read: We will certainly have a go at it.
The Chairman: Thank you very much.
Would that help you, Senator Beaudoin?
Senator Beaudoin: Obviously, that is the answer.
We should have access to courts of justice at all times, whether it is an emergency or not. You may always go before a court. That is part of our principle or our system.
If we give more power to the minister — and I agree with that, I have no objection to that — please let the access to the court always remain. That is all I request. I am not sure, however, that that is in all parts of this bill.
Senator LaPierre: The summary indicates that the provision permits the minister to delegate to his or her deputy for the same purpose. How long is the delegation? Under what condition is the delegation made? Why is it made? If we have a security problem in our country, why in heavens is the minister not around?
Does it exist? I want to know under what conditions the minister may delegate to a non-elected official these immense powers that the bill seems to give to him or her?
Mr. Read: I wonder if I should wander into the area. Under the current bill, the minister can delegate authority to make interim orders to the deputy minister or, in fact, to any officer in the Ministry of Transport. We think that is much too generous. That is why we are bringing it back to only the deputy minister.
I think we were the only department that was forced to make decisions on September 11. We lived and experienced what other departments did not. If we had been unable to get to our minister for some reason, if it had been outside business hours or during a holiday when he was off somewhere and inaccessible, we would have needed access to someone. We are very nervous about being able to respond. We have lived this experience. We know we can be caught in a time period when we must act. It is critically important that someone always be accessible. If the deputy does issue an interim order, it dies in 90 days.
Senator LaPierre: There are close to 30 ministers in the government.
Senator Andreychuk: I there are about 60. They have junior ministers now. It is about 59.
Senator LaPierre: It is an enormous number. In fact, there are more ministers in the cabinet than there are members of the Conservative Party in the House of Commons. Let that be a lesson to you, dear madam.
The deputy minister is not responsible to the public. He is not responsible to anyone but the minister. Consequently, he can make an interim order to limit my rights. Ms. Normoyle gave me a long litany of how my rights can be limited on the fiat of someone who is not elected, and that can be imposed for 90 days without the minister being asked to agree or disagree. That is absurd nonsense. I am not in a banana republic. I am in the country of Canada, where the price of liberty is to take risks. The price of democracy is to take risks. I am not about to give you or your deputy minister carte blanche to limit my rights, fond though I may be of your deputy minister. I do not even know who he is, but that does not matter. The end result is disastrous for the liberties of Canadians. I can see that, within a certain time, the minister or another minister or the Prime Minister can be found to correct the situation, and not leave a civil servant, who is not responsible except through his minister, with a decision that greatly affects the rights of the Canadian people — so change the bill.
Mr. Read: I want to correct two things. First, the conditions and the manner of operation that Ms. Normoyle has described are not subject to interim order provisions at all. We are not proposing that interim order provisions be placed in the Immigration Act. All the situations she talked about are separate and apart from whatever would happen under interim orders.
Second, I misspoke earlier. I apologize for that. If the deputy does make an order, it is valid for one year, not 90 days.
Senator LaPierre: That is even worse.
Mr. Read: Well, for better or worse, I have to correct myself.
The Chairman: Senator LaPierre, in political terms, you may want to put that kind of question to the minister, rather than ask the poor public servants to carry it all.
Senator Day: May I have a point of clarification on my friend Senator LaPierre's questions?
When an act is amended and the reference in a particular act is to "the minister,'' does that refer to any minister of the Crown or the minister of that particular department?
Mr. Read: Most often, in the way the act is worded, you will see a definition at the beginning stating that "minister for the purposes of this act means,'' for example, the Minister of Transport.
Senator Day: If the Minister of Transport happened to be on the plane that was flying to New York that day, you could not go to another minister to impose an interim order; is that correct?
Mr. Read: That is correct.
Senator LaPierre: Surely the point or object of your question is to get another minister to be responsible.
Senator Day: The deputy minister is knowledgeable.
Senator LaPierre: He can advise the minister who is not knowledgeable.
Senator Day: All right. I yield.
Senator LaPierre: Madam Normoyle, is my country in a constant state of security alert? This bill seems to be more American than Canadian. It seems to suggest that I am in a constant state of alert, and consequently, I must sacrifice some of my rights in order to be safer. That is my first question.
Second, how do you train people at the borders to identify a person who may be a terrorist? We know now that people who look Arabic are targeted. We know that for a fact. Consequently, there seems to be a lack of training in the process. Those are my two questions, Madam, if you would be so kind as to respond.
Ms. Normoyle: The officers who work for the Canada Border Services Agency do not target individuals. They use objective criteria — assessment of passports, information on our FOSS system — to identify individuals who may be of concern as they try to enter Canada. We do not have a targeting policy.
Senator LaPierre: I know that you do not have a targeting policy, but in practice it takes place. Do not close your eyes to it.
Senator Day: Is that in this bill? Are you dealing with something in this bill or a general question?
Senator LaPierre: That is a general question.
Ms. Normoyle: No, we do not target people.
Senator LaPierre: I had two questions. That was an answer to only one.
The Chairman: That was the second question.
Senator LaPierre: Mr. Read bypassed the first question.
The Chairman: Senator LaPierre, you have asked your questions. The witnesses answered them as best they can. You are down for another round.
Senator Jaffer: Mr. Read, this bill is not just dealing with the transportation act. You said that Bill C-7 deals with 23 acts; is that not correct?
Mr. Read: That is right.
Senator Jaffer: You have given some examples. Besides the Quarantine Act, you were talking about your experience with the transportation act. Am I correct in saying that?
Mr. Read: I was speaking to interim orders. It was with respect to the 11 acts that contain interim order provisions. There are five other acts that are the responsibility of the Minister of Transport. I am speaking about 16 acts, but there are other acts that I have not addressed; that is correct.
Senator Jaffer: The chair asked you to do a chart; may I ask also that you give us a chart of all the acts involved?
Mr. Read: I assumed she meant all of the acts, all the parts, yes.
Senator Jaffer: Is it correct that Bill C-7 also helps the work of CSIS?
Mr. Clark: Yes. The act is designed to assist CSIS in its national security mandate. I understand that arrangements are underway to have the director of CSIS attend at this committee to give you insight into how this bill would be of assistance to his agency.
Senator Jaffer: I will hold my questions then for the political people and the person from CSIS. However, I would like to find out something from the immigration officials. From what I understand now, if you want to come to Canada, you go only to the Minister of Citizenship and Immigration. If there are problems with that person, then you go to someone else; I do not know the name of the deputy minister at the moment. How does that work? I am confused.
Ms. Normoyle: Are you talking about ports of entry?
Senator Jaffer: Yes.
Ms. Normoyle: You want to know what happens when a person arrives at a port of entry?
Senator Jaffer: If I apply from overseas to come to Canada, the application first goes to the Minister of Citizenship and Immigration; is that correct?
Ms. Normoyle: Yes.
Senator Jaffer: When does the second minister look at the documents? Is it after people arrive and you are trying to throw them out? I want to understand how the process will work. Once, it was all under one ministry, right?
Ms. Normoyle: Yes. We can have a colleague from Citizenship and Immigration speak to you about processing overseas.
Senator Jaffer: No. Forget about that. I want to know when your department gets involved.
Ms. Normoyle: Our department has interdiction officers in the intelligence community who continue to work overseas. They are part of our intelligence network. Domestically, we have officers at the border who are the primary line of inspection. When I am returning from the U.S. to Canada, I will go through to the primary line of inspection, where we have officers examining documents as people come into the country.
Senator Jaffer: I am just trying to understand, because this is a new process. This person now is no longer from Citizenship and Immigration Canada, but from your department; is that correct?
Ms. Normoyle: The primary line of inspection was formerly with the Canada Customs and Revenue Agency, and is now with the Canada Border Services Agency. The secondary work being done at ports of entry continues, for the time being, to be under the responsibility of the Department of Citizenship and Immigration. How that will work in the longer term is being reviewed at this time, but for now, immigration officials who are employees of the Department of Citizenship and Immigration continue to work at the secondary line of inspection.
Senator Jaffer: They continue to do the immigration work to let people enter the country; is that correct?
Ms. Normoyle: That is correct.
Senator Jaffer: When do you get involved? What I am trying to understand is when does your department get involved in stopping the person from coming into the country. I understand that the Department of Citizenship and Immigration assists people in coming in, and it is you who, for the right reasons, prevent people from coming in. Do you work together?
Ms. Normoyle: We work together, yes.
Senator Jaffer: I am confused, then, because you say that at the moment, you are continuing to do your work. Clarify that for me, please?
Ms. Normoyle: At the primary line of inspection —
Senator Jaffer: Is that customs?
Ms. Normoyle: It was formerly customs, yes. They continue to do the work they were doing before. After examination of the documents or based on the responses to questions that they may pose or based on any information that may come up on the FOSS system, they will refer cases to a secondary inspection. They can refer cases to a secondary inspection for customs purposes or for immigration purposes. As it stands now, the secondary activities continue to be performed by the Department of Citizenship and Immigration. You will recall that the announcement made by the Prime Minister on December 12 indicated that work being done from an immigration point of view at ports of entry would be subject to further review in due course. Those functions were not transferred on December 12.
Senator Jaffer: Say I am a landed immigrant. I am from British Columbia so I will use the Douglas border as an example. I come to the Douglas border, I go through customs, I go through secondary inspection, but you have concerns, perhaps, about something on file. Would immigration officials still handle it, or would the Canada Border Services Agency?
Ms. Normoyle: Immigration would still handle it, in consultation with us at this time, if you have been referred to a secondary inspection.
Senator Jaffer: I am not getting an answer. I just want to understand.
The Chairman: I know, but Senator Jaffer, it seems to me that what you are talking about is not strictly within the purview of this bill. An offer was extended for direct contact with you to explain the process — unless you are actually focusing on this bill. I know other people have questions, that is the only problem, and we do not have unlimited time.
One of the things I wanted to know, for example, was if for whatever reason we decide that someone who seeks entry should not be admitted to Canada, do we notify other countries about this person under Part 11 of the bill?
Senator Jaffer: Perhaps you can ask your question and let me continue with mine, chair.
The Chairman: Yes, I am asking you, however, Senator Jaffer, to focus on the bill.
Senator Jaffer: Yes, I am, because this is a new process and I am trying to find out what is exactly under whose purview. What I understand is that the border agency is the people who throw you out, but the witness is saying that at the moment, immigration is carrying it out and we will have to speak to immigration officials, but my question on this is as follows: The other thing you have talked about here is international affairs. I would like to know the definition of "international affairs.'' Not the political definition, but the one used when this was being drafted. On page 56, what does "international affairs'' mean?
Ms. Normoyle: The intent was to have the provision allow us to deal with international agreements in order to link this to information-sharing agreements that we may want to enter into with other states. For example, under the Shared Border Accord with the U.S., the Government of Canada made a commitment to enter into information- sharing arrangements. That is an example of what would qualify under that umbrella.
Senator Jaffer: Mr. Read, I understand, when you talked about the Quarantine Act, that this is to enable us to react immediately to new diseases that surface, for example, SARS. Is that the kind of thing you were looking at under the Quarantine Act?
Mr. Read: I would not put SARS in that category. SARS developed normally and naturally, if I can say that, it developed in slow time. If someone had found a way to put some particularly virulent pathogen in an aerosol and released it in Europe, we may want to react immediately, and we would put the Quarantine Act into effect so that people arriving in Canada would be properly screened for this. That is what we meant.
Senator Jaffer: I understand that you are looking for a continuous assessment of people to see if someone is a war criminal or a terrorist? There is a continuous assessment. Every time I have to get on a plane, which is now every week, I will be assessed as to whether or not I am a risk, once this act comes into place?
Mr. Read: Are you speaking about Part 11 or 4.82?
Senator Jaffer: Part 11.
Ms. Normoyle: Part 11 is intended to provide the minister with authority to develop regulations. The regulations on sharing of information, what information, how that information is shared, conditions on the sharing of that information, would all have to be included as part and parcel of the development. At this point we do not have a regulation that specifies that. That is the intent of Part 11, namely, to provide the minister with the authority to develop that regulation with respect to information sharing, and also to allow for conditions to be placed on how that information will be dealt with.
Senator Jaffer: May I ask the chair, since they kindly offered to bring an immigration person here, that when that person comes we have someone from the border agency too, so that both can answer the question? From what I understand, both departments are involved; therefore we will not run into the same situation.
Senator Corbin: This is not so much a question as a reaction to some of the criticism respecting security legislation generally. In fact, Senator LaPierre stated just a few minutes ago that he thought some of these provisions were more American than Canadian.
The question that interests me is Canadian sovereignty. Could you point out in the proposed legislation before us items that are the result of pressure from the United States and which do not necessarily deal with Canadian internal security concerns? In other words, what, if anything, that would not normally find its way into this proposed legislation in a truly Canadian initiative originates from pressure from the Americans?
Mr. Read: To go back to an earlier question, which someone said I did not answer, some security measures take place continually in Canada. Certainly, as you board an aircraft all your carry-on bags are screened. That happens continuously. Security occurs on levels. Countries have talked of raising their levels. It has been raised in Great Britain, et cetera. Security is not either on or off; it is at different levels.
All countries have talked about security. The G8, when they met in Kananaskis, put out a paper on security saying they would all work together. One of the principles was that if one country knew of international terrorists, it would inform other countries of their existence.
Senator Corbin: Does that actually take place?
Mr. Read: I would have to defer that question to other people. I know that was the principle in the G8 pronouncement and the Roma-Lyon accords. Several international organizations focus on security. The International Atomic Energy Agency now has taken up security as an issue.
I cannot point to something that is only in here because the Americans wanted to have it in place, et cetera. I would go back to Bill C-44 and say that we brought that in because the Americans were requiring the data and were going to hold planes on the ground, so we allowed the data to be transferred earlier. That is the only activity that comes to my mind at the moment that the United States directly induced — not demanded. That was Bill C-44.
The Chairman: That would be a good question for the ministers.
Senator Corbin: Are there other comments in this respect?
Mr. Clark: Part of your question, senator, was whether Canada was sharing international terrorist information. As I mentioned earlier, the director of CSIS will be here and will have an opportunity to comment on that. More generally, it is my understanding that the service has a series of international protocols under which information sharing takes place.
Senator Corbin: Do you apply the same norms, standards or security measures that apply to entry into the United States to other carriers, whatever the origin or destination? Do you treat everyone the same way? If there is a security norm, surely it should apply to everyone coming into or exiting the country.
Mr. Read: I did make the general comment that under safety, we do inspections and audits. Under security, you have to look at everything. Therefore, you screen all objects going on board an aircraft. If you are assessing people to see if an aircraft is safe, you assess them all. If ID cards need to be shown to get into this building, everyone does it, not just every third person, and with respect to people coming into the country, there are requirements for data to be provided to Canadian officials before aircraft land in Canada from everywhere.
Senator Corbin: In terms of flights going out, you are telling me that the strict norms that apply to carriers going into the United States are also applied to carriers from other foreign parts, whether from Israel, Portugal, Australia or anywhere else. Is that what you are telling me? You do not understand my question.
Mr. Read: Not completely, sir.
Senator Corbin: The Americans have imposed very strict inspection and information standards about personal data and so forth on flights originating from Canada. Do you apply the same rules to other carriers going into other countries on flights originating from Canada, and if not, in the name of security, why not?
Mr. Read: I think I follow the question now. We do pre-clearance in Canada, which is something we do not do with any other country. We do pre-clearance routines in Canada. If you go to the Ottawa airport and are flying to the U.S., you go through routines there instead of at the border in the United States. That is distinctive and different. Our airlines do provide data to the United States before they leave this country. No other country has requested it. In fact, no other country needs it, because if you depart Canada for France, once you are airborne and have left Canadian airspace, the airlines can provide the data and they are there 20 minutes before landing. That is why no other country has picked up on that.
I do have to correct something I said earlier. With respect to an example of something we did because of American intervention, we have put aircraft protective officers on all flights going into Ronald Reagan Washington National Airport. That was a direct request from the Americans. If you wish to fly into Ronald Reagan Washington National Airport, you must have aircraft protective officers, APOs, on those flights, so we do that. That is not in the bill, but that is something we are doing that is unique to that airport. We do not have to put APOs on any flights to other countries or to other cities in the United States.
Senator Andreychuk: Do you sweep all aircraft before passengers board to ensure that the plane has no attachments or weapons? In other words, do you provide a certificate when an Air France or an Air Canada plane is leaving for Paris?
Mr. Read: We are moving into implementation of other portions of other legislation.
Senator Andreychuk: For example, I was deplaned in Ottawa from an Air Canada flight to Orlando because Air Canada and/or Transport officials had not swept the plane and provided a certificate to say that that plane was safe before passengers got on. We were all deplaned for that sweep of the plane to take place and that certificate to be filed.
I understand we only do that for aircraft leaving Canada for the United States. Is that correct?
Mr. Read: I will have to check on that.
Senator Andreychuk: There are other things like that that we do for the United States that we do not do for other countries.
Mr. Read: Again, the United States places conditions on entry into their country. This would be distinct from our engineering our own laws strictly to suit their purposes. I thought that was the intent of the question. I could not come up with examples, other than Bill C-44, where we engineered our laws for their benefit.
Senator Andreychuk: I do not want to speak for Senator Corbin, but I understood his question to be what is the norm for safety. It is not a question of the United States having asked for this. Surely we are not doing it just because they asked. We must be doing it because we think it provides some kind of safety and security. If we are talking about international terrorism, are we doing the same for planes coming from or going to another part of the world?
The Chairman: I had a supplementary to Senator Corbin's question, which was more or less that. I found myself more confused. I thought I understood something, and then as I listened to the answer, I realized I did not.
You said that for flights to Paris, we do not need our laws to come into play because information transfer can happen anyway; the airline can send the information on and it gets there 20 minutes before the plane lands. I am not quite sure what you were saying there. Is it that France or other countries do require information of this nature, but because we do not have pre-clearance for France, we do not need Canadian legislation? That is to say, they can just say to the airline, "You will not land your plane unless you provide this information''?
Mr. Read: That is correct.
The Chairman: Everyone is gathering this information anyway.
Mr. Read: Everyone is gathering information, that is a true statement. The difference between the United States and other countries is that when you take off from Vancouver for Seattle, you are down on the ground before much can happen. You are already in Seattle. If you are taking off from Vancouver for Japan, however, there is plenty of time en route. This is how it is normally done, as Ms. Normoyle can point out. That information is normally passed on to other countries after the aircraft is in flight — and this is called "wheels up'' — and you know exactly who is on board the aircraft. That is when information is normally transmitted. With respect to the United States, they said the time was too short, for flights coming from Canada, to process the information. That is why that change was made.
Senator LaPierre: Does Israel have certain regulations for boarding their aircraft? If there is one country on the planet that is subject to terrorism, it is Israel. Consequently, do they do that kind of screening in Canada and do they have armed guards on their planes?
Mr. Read: Any company can institute its own level of security when dealing with its customers. Certainly we know that the Ben Gurion Airport in Israel is run more strictly than probably any airport in the world. With respect to the aircraft, where El Al flies, and whom they accept on their aircraft, are business decisions the company makes. As with both Canadian aircraft and American aircraft in the U.S., there are APOs, armed protection officers, on some of these flights.
Senator Jaffer: Since Bill C-44, we have had regulations to provide the information to the U.S. because they are short flights. Is that correct?
Mr. Read: We have permitted the airlines to provide data to the U.S. in advance of arriving there. They are the same data they would have to provide on arrival.
Senator Jaffer: The difference is that it is in advance.
Mr. Read: That is all.
Senator Day: You said, Mr. Read, that each country was gathering information now. You referred us earlier to a schedule under clause 23, at page 104 of the proposed legislation. That is the 34 points. Is that information being gathered now?
Mr. Read: I would like to choose my words more carefully. "Gather'' implies being collected and held. I cannot think of a country that does not examine who is coming in. Everyone wants to see your passport when you arrive, and there is information that airlines pass on ahead of time. Perhaps Andrea Spry could join us for a moment. She should be able to shed some light on what type of information is passed on ahead of time and what type of information Canada receives ahead of time. This seems to be a question of interest.
The Chairman: I invite Ms. Spry to come to the table. I understand that she is director of the Canada Border Services Agency risk assessment systems.
Senator Day: On page 104 of the bill is the schedule. Dr. Read took some pride in saying Canada helped develop this 34-point questionnaire, which the Europeans are now following. I wanted to find out if that is the kind of information being given. I see nothing in here about religion or colour of skin or anything like that. Is that correct?
Ms. Andrea Spry, Director, Risk Assessment Systems, Canada Border Services Agency: Canada does have an advance passenger information program in existence today, so for all international flights into Canada, we are sent information by the air carrier 15 minutes after takeoff. All air carriers flying in, whether they are coming from the United States or from Israel or wherever, send us this information. We use that information to target people of interest. It is called advance passenger information and we run that against our two databases. One is FOSS, which is the immigration database; the other is the customs enforcement database, ICES, and it is used to identify known risk. We have names in those databases and we run the information against them. When people arrive in Canada, we know whether they are a risk.
Senator LaPierre: Did you use the word "target?''
Ms. Spry: I did.
Senator Day: I understand the sharing part of it, but is there something in this bill that would give you more information? Does it expand the advance passenger information by virtue of these 34 items that appear at the back, in the schedule?
Ms. Spry: My understanding is those are the data elements that Transport Canada, CSIS and the RCMP plan to collect. They are very similar to the data elements that we collect. Today, only the United States and us are collecting this information. I believe Korea may also be collecting it, but a lot of countries are looking at the collection of this information. The European countries are looking at the possibility; however, they are not collecting it today.
Senator Andreychuk: I understand that if this bill passes, then in concert with Bill C-44, which was passed, these data will be shared with the United States. By virtue of this bill, we could, by regulation, extend use of this information to any other country with which we enter into an agreement such as we have with the United States.
Ms. Normoyle: Part 11 requires that, first, regulations be developed and presented to both Houses before anything occurs.
Senator Andreychuk: I am not arguing about that. However, right now we are saying that it applies to the United States because of the information exchange. We do not really know what they do with it afterwards, except it is supposed to be used for the purposes for which we are sharing it with them. However, by virtue of this bill, we could enter into the same arrangements with any other country, providing we follow the rules that are stated through the regulations. In other words, I understand it could be universally applied, if we so chose and followed the law.
Ms. Normoyle: Part 11 is to allow for the development of regulations and also for the imposition of conditions on their use. Those regulations would have to be presented before both Houses and their committees.
Senator Andreychuk: It is the regulation that could state all these other countries are included. That is what I am saying. I will ask one of the lawyers when they come here.
Senator Day: Senator Andreychuk and I have had some sparring on this issue already, so we are thinking somewhat along the same lines on some of these issues. As a preamble, Ms. Normoyle, I am looking at Part 11, at page 55 of Bill C-7. I just wanted to confirm a couple of points here.
The interesting point I find with respect to your first proposed amendment here, under section 5(2) of the Immigration and Refugee Protection Act, is that a copy of any proposed regulations made pursuant to the various sections under the Immigration and Refugee Protection Act must be laid before each House of Parliament.
That is fine, but then the proposed section goes on to say that the House shall refer the proposed regulation to the appropriate committee.
I suppose that means the Senate cannot just let the report be tabled, but that it must be sent to committee. That is an interesting safeguard. I will not ask you to comment on that, but that means going an extra step in an interesting manner.
The information may be used only for the purposes of the Immigration and Refugee Protection Act and the Department of Citizenship and Immigration Act. I apologize; I do not have those acts here either. That makes it difficult for us to understand the impact of these various amendments without reading them in context.
You may have the acts here. Does this amendment apply to all of the information? Paragraph 149 of the Immigration and Refugee Protection Act is amended, and it says that information can only be used for the purposes of those two immigration acts. Does that apply to all the information, or just to some specific information you are gathering?
Ms. Normoyle: It refers to the information collected for the purposes of administering both of those acts. The information, and how it is collected, would be defined as part of the regulation. We have our legal counsel here.
Senator Day: Good. It is always nice to have another lawyer here.
Ms. Julie Watkinson, Counsel, Citizenship and Immigration Canada Legal Services, Department of Justice: The section in the IRPA, 149, which talks about the use of the information refers back to information collected under clause 148(1)(d) of our bill:
A person who owns or operates a vehicle or transportation facility, an agent for such person, must in accordance with the regulations provide prescribed information.
That is the authority under which the CBSA, on the immigration side, collects the advance passenger information. Clause 149 of the bill is referring back to the advance passenger information discussed by Ms. Spry.
Senator Day: The information gathered then can only be used specifically for the implementing of those two acts and not for any other use for which someone might want that information. I wanted to confirm that.
Section 150.1 of the Immigration and Refugee Protection Act is to be amended as well. It is under that heading of "Sharing of Information.'' It refers to disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs. That phrase "conduct of international affairs'' scares all of us. It is a very broad term. Do we get some protection by going back to the other section that we just talked about? Can we read that "conduct of international affairs'' as being for the purposes of the two acts we are dealing with and for no other purposes? Can you help us with that? Maybe you want to consider that.
Ms. Watkinson: Could we consider that?
Senator Day: I want to know what limitations might be read into this. If I had those two acts, I might, with the help of some good lawyers on the other side, answer that question myself, but unfortunately, I do not have them here. I would like to know your thinking in that regard.
Ms. Watkinson: We will get back to you on that.
Senator Day: Do you have any draft regulations? My first question dealt with the regulations coming before us.
One of the limitations of section 150.1 is that any regulation under that section will be made available to us beforehand, presumably. Are there any regulations in existence now to which this will apply? Will they all be new regulations? Will we see them before you start implementing this?
Ms. Watkinson: Under section 5 of the Immigration and Refugee Protection Act, certain regulations must be laid before both Houses and committees. This bill amends an existing section of IRPA, section 5, which has the exact same text. A number of regulatory-making provisions are stipulated. Regulations made under those provisions must follow that same procedure.
Senator Day: That applies to all the various sections, including the one to which I just referred.
Ms. Watkinsonon: It includes that one.
Senator Day: Do you have any draft regulations that we can look at now that you propose would go to committees?
Ms. Watkinson: Under the proposed new section 151, there are none.
Senator Day: There is nothing in existence now?
Ms. Watkinson: There is currently no regulation-making ability to make those kinds of regulations.
Senator Day: That is why I asked about drafts, so we can understand how this might be used. That is what I am looking for. You are looking for enabling legislation now, but before anything is implemented, will we see it in regulation form in some committee?
Ms. Watkinson: That is correct.
The Chairman: Please furnish your answer to Senator Day's earlier question sooner rather than later, please
Senator Andreychuk: I have many questions, many legal questions. The immigration act, as I recall, provides the minister with the ability to define, by regulation, terrorist activity for the purposes of that act. We are in the same dilemma. The proposed regulations are not before us.
Has any action been taken by way of regulation pursuant to the amended immigration act of two years ago relating to terrorism, terrorist activity or collection of information? We can get that in a written form as well.
The Chairman: Do you have information on that?
Ms. Watkinson: Which section of IRPA were you referencing?
Senator Andreychuk: I, like Senator Day, felt that since we have four feet of paper here, the 100-page bill was enough to carry. I did not carry in the immigration act. It certainly is in your act that the minister has certain discretion, by way of regulation, to define terrorism. I will put the question more specifically to the lawyers, but I would like to know if you are operating under any regulations in immigration today that deal with terrorism specifically.
Ms. Watkinson: I would have to say that I am not aware of any, but we can get back to you definitively on that.
Mr. Read: There is a definition of "terrorism activities'' in Bill C-36.
Senator Andreychuk: Yes. The question is whether the same definition would be used in Bill C-11, as it was called then, and in the immigration act. There were separate powers. There was an undertaking by the minister at that time to blend the two definitions. I do not know if they were ever blended or used under immigration, but the minister had a separate authority.
Those questions were broadly put before the minister on Bill C-11. I have not refreshed my memory because I did not think we would be putting those questions today. Certainly the alert is out. I am concerned about who is defining this activity, who is in control of it and where the information is being held.
The Chairman: As a supplementary comment, while you are providing that kind of information, it occurs to me it may be helpful to have a written chart setting out the processes that Senator Jaffer was asking about. Sometimes it is easier to follow print than to understand as people orally describe what may be a complex process.
With Senator Jaffer's permission, I add that to our growing list of requests.
Senator Andreychuk: I have a short question for Mr. Read as a supplementary to one from the last time he was here.
We provide this information at the moment to the United States pursuant to Bill C-44, the Aeronautics Act. Obviously, we are all concerned about security and safety.
Is there any protocol or assurance that the information is only used for those purposes once it gets to the United States? I am bearing in mind that this kind of information about us could be used, if not safeguarded for the stated purposes, by the aeronautical and transportation systems of other countries.
Mr. Read: To make an observation, the U.S. not only collects information from air passengers coming from Canada. If you travel across the border by car, train or bus, you can be asked to provide information. If you produce a passport, it is swiped through a machine and that information is instantly captured. To explain what the U.S. does with the data, it might be helpful to spend two minutes on CAPPS 2, which is how they intend to screen people in the future. They have gone through different iterations of various kinds of problems for different situations, for example, cruise ships. They have decided they will centralize everything and focus on the Computer Assisted Passenger Pre-screening System, version 2. It is essentially a system whereby they will be requiring "the name plus three,'' as they call it. They will require the name, full address, telephone number and date of birth. Those four items will have to be provided for anyone entering the United States, and also for anyone flying within the United States, even on domestic aircraft.
They would then go through their process. Key to that is to first verify that such a person exists. They would use the large data providers in the United States that credit card companies and banks use. All kinds of financial institutions go to these locations to see if this person does exist.
After the information has been authenticated — this is a person they know — those four data elements then go to their national risk assessment centre and they match them against certain databases. They will not tell us which databases. They will use certain rules of correspondence. For example, if there is a hit on 25 of them — I do not know what the rules are — then you are coded red. The conclusion is that you are coded as red, orange or green.
In the future, that is how data from Canadian aircraft departing Canada will be treated. It is how data gathered at the border from passengers in cars, from buses, from everything, will be treated. That is how they intend to deal with it. They intend to do it with data from people within the United States as well.
Senator Graham: We have talked about preconditions and immediate threats. Is it correct that the precondition of an immediate threat to a flight that must exist for Transport Canada to have access to passenger information is not required for the RCMP or CSIS to have access?
In conjunction with that question, what safeguards are there to limit the domestic use, disclosure and retention of the information obtained?
Mr. Clark: You are correct in your understanding, Senator Graham. In the context of the regime for RCMP and CSIS to access air passenger information, the precondition of an immediate threat that is present in clause 4.81 for Transport Canada is not present under clause 4.82 for the two agencies. Under that provision, the two agencies will have designated officers who have authority to access passenger data to detect passengers who pose a threat to transportation or national security.
You asked about safeguards. There are a number of safeguards built into the clause 4.82 regime governing the activities of the RCMP and CSIS in matching this air passenger information. They are primarily privacy safeguards that would limit the domestic use, disclosure and retention of the information obtained. This would include the fact that there is only a small number of RCMP members and employees of CSIS designated by the agency heads as having access to this information. Not every CSIS agent or RCMP member will have access.
The passenger information that is obtained will have to be destroyed within seven days, unless it is reasonably required for purposes of transportation security or the investigation of a terrorist threat.
The bill contains thresholds that must be met before information can be disclosed. For example, the designated officer would have to have reason to believe that the information about a passenger on a particular flight would be of assistance to one of those aircraft protective officers, one of those plainclothes armed RCMP members, in carrying out his duties on board a flight.
On the CSIS side, it provides that the designated CSIS officer can only disclose to another CSIS employee the information that he or she has about passengers matched to this subset list, only for the purposes of a counterterrorism investigation under the CSIS Act, and only after approval of that disclosure by a senior official of the intelligence service. All retention of records and disclosure of information must be documented as to what was disclosed, when and why. Of course, that information is available to the Privacy Commissioner whenever he or she wishes to have access to it.
The RCMP commissioner and the director of CSIS are obligated to ensure an annual review of information retained by the designated officers. This is on the basis that there may be information that, despite the controls and the requirement for destruction within seven days, there may have been a justification for retention for a longer period of time. However, everything that has been retained will be subject to review. If it cannot be actively demonstrated that there is an ongoing reason of transportation security or threats to the security of Canada, the information must be destroyed.
All of the activity of CSIS is subject to detailed review by both the Security Intelligence Review Committee and the Inspector General of CSIS. Of course, SIRC submits an annual report to the Minister of Public Safety and Emergency Preparedness, which is tabled in both Houses of Parliament.
With regard to the RCMP, the Commissioner for Public Complaints against the RCMP has the authority to investigate complaints about the RCMP and its conduct in administering the regime. In that case, the CPC chair could deal with any issues under this regime in her annual report, which is also tabled in Parliament.
Senator Graham: Under what conditions could the RCMP and CSIS disclose any information they gather to governments and organizations of other countries? If those conditions exist, what safeguards are there when the passenger information is disclosed to other countries?
Mr. Clark: In answer to your first question, there are only narrow circumstances that are set up under clause 4.82 where there could be any disclosure to officials of another country. In fact, it is confined to common sense situations, where the disclosure is needed to address an immediate threat to someone's life, health or safety, or to transportation security. The other one is to assist a peace officer in the execution of an existing extradition warrant.
With respect to safeguards, the CSIS has a statutory process for entering into relations with foreign states, including a requirement for ministerial approval of all those arrangements. Of course, those arrangements would apply to the disclosure under the proposed section 4.82 regime.
The RCMP has also established protocols for sharing information with many foreign states. The Privacy Commissioner will be able to investigate all privacy-related matters and complaints for both agencies, can initiate her own reviews at any time and have full access to the records that I mentioned earlier.
All of the uses and disclosures of the information by CSIS under proposed section 4.82 would be subject to the review of both SIRC and the inspector general and would be fodder, where appropriate, for inclusion in the annual reports that are tabled in Parliament. Once again, CPC, as I mentioned, has a mandate to review the conduct of RCMP members, and that would encompass their conduct in administering this provision.
The oversight agencies, being the Privacy Commissioner, SIRC, CPC and the IG/CSIS, will be aided, I believe, by the detailed documentation that both the RCMP and CSIS are required to retain with respect to the retention and the disclosure of information.
Finally, the government announced on December 12 that it intends to create an independent review mechanism for the RCMP's national security activities. Mr. Justice O'Connor has been appointed to conduct an inquiry into the Maher Arar case, but has also been mandated by the government to conduct a policy review and make recommendations with respect to the format of this new review body for the RCMP. While no decisions have been taken, that new review mechanism could also be used to provide review of the RCMP's activities under proposed section 4.82.
Senator Graham: I know that Mr. Read has touched on this, namely, the whole question of the immediate threat to a flight that must exist for Transport Canada to have access to the passenger data and so on.
Are we clear as to whom and how a threat is deemed to be immediate? Is it the Minister of Transport and, in his absence, the deputy minister? Do the RCMP, CSIS and the Department of National Defence, which has not been mentioned this morning, come into play here as to deeming what is an immediate threat?
I know, Mr. Read, you gave us a good explanation regarding what happened in your case and with respect to the minister on 9/11. I thought that everyone acted very commendably on that day.
Mr. Read: Clearly, there is an immediate threat if a plane has been hijacked. We know the plane has been taken over. If there is a communication from the aircraft that something is happening on board, it is a problem for us.
There is a protocol, and fortunately, I do not remember its details, because I am not supposed to reveal it. For example, on 9/11, we probably had over 20 bomb threats at various airports, none of which were substantiated or substantial. However, if someone phoned and said there was a bomb on the flight going from here to there with this following person on board and this stewardess, we would take that as an immediate threat if it included a threat of violence or damage to aircraft. You must be careful to screen out the false alarms, but you must have conditions such that if you are satisfied the required number has been met, the flag would go up regardless of what time of the day or night you happened to receive this information.
We do have a scheme but I cannot give it to you now; I do not think I am allowed to do so anyway. We do have criteria already established for determining whether or not something is an immediate threat.
A distinction needs to be made between Transport Canada's activities and those of the RCMP. Transport Canada is not an investigative body. We do not do investigative work. We are an administrative department, which is why we are not the ones gathering information to do investigations, assessments of people and so on. We deal only with people who are known to be or highly suspected of being terrorists. Then we can do something in Transport. As you clearly point out, in this bill, we do not get involved unless there is clearly an immediate threat to the flight in general or there is a known, specific person. That is the only time Transport is involved with data.
Senator Graham: I wish to ask one final question that may not be related to terror.
The Chairman: You are pushing the limits.
Senator Graham: I always do. It concerns contact between an aircraft and an airport and whether it relates to the specific carrier or Transport. I was on a flight to Halifax, on February 6 to be exact, and the weather was bad here and in Nova Scotia. The aircraft could not make contact with the airport or with Air Canada authorities in Halifax. There were passengers on the flight to Halifax who had connections to Saint John, Moncton, Charlottetown or Sydney, but the flight attendants could not make contact with either Air Canada or the airport. Is that a problem for Air Canada, or is that a joint problem with the airport?
Mr. Read: I do not know the specifics of your case. I greatly suspect this is a problem with Air Canada's scheduling of its flights and it will just not answer if it does not have the answers. The flight would be under the control of NAV CANADA, and certainly everyone knows where it is and what it is doing at all times. They can contact NAV CANADA at any time. However, it is not NAV CANADA's responsibility to tell you whether or not Air Canada is holding a plane or does or does not have seats for you.
Senator Beaudoin: For years, we have developed our system of legislation by regulations. It is not only emergency bills. This tendency is in all statutes. After the events of September 11, we have gone even further, probably because we have no choice. Ministers have to intervene, and they intervene via regulations, interim orders, et cetera. The mere fact that we are in an emergency era does not solve the problem. Is the government aware of the possibility of action for damages? Is it because people will go more often before the tribunals? They may have new actions in damages, and are we aware that we have to keep all the access to the courts alive? That is part of my first question.
I agree that, so far, no one has established a better system. Access to the tribunals and to courts of justice should be 100 per cent open, because people may have some damages. Is this taken into account by the government and the parliamentarians?
Mr. Read: There is nothing in this bill that I am aware of that reduces the access that currently exists. I am focusing on interim orders for the moment.
Senator Beaudoin: Are you are satisfied that there is nothing in the bill?
Mr. Read: There is nothing in the interim orders provisions of the bill. We were talking about that earlier, namely, that these instant regulations that the ministers can make are subject to instant review by the standing joint committee, and so forth. There is nothing in those.
In fact, there is nothing there that I can point to that in any way restricts anyone's recourse should they feel that an action was incorrect and had an impact on them.
Senator Beaudoin: It is not because we are in an emergency era that this principle of law does not apply.
Mr. Read: Correct.
Senator Beaudoin: It will continue to apply.
Mr. Read: Yes.
Senator Beaudoin: It is the intention of the administration and the cabinet to respect that principle when they draft more regulations.
Mr. Read: All regulations will follow the normal process. Normal regulations go through review by the Department of Justice and the various committees before they are even proclaimed. The ones we are talking about here, the specific ones for immigration, will be dealt with through Parliament first. It is still the wide-open process. The only process that changed here is the one dealing with interim orders, the creation of a regulation immediately, and in that case, there is parliamentary supervision, which is also immediate. That is a necessity. We are explaining that we believe this is a necessary thing. We are also saying that we hope we would never have to use it.
You must look at those particular acts as well, for example, the Pest Control Products Act. It is not stealing rights from anyone if there is some abuse happening that we have to respond to under that act, or the Quarantine Act, or the Hazardous Products Act, or the Canada Shipping Act. All of these various acts are there to give us an ability to respond to an unpredictable, unforeseen event.
Senator Beaudoin: However, the parliamentary control system is always there?
Mr. Read: It is there at least to the extent that it exists under the Emergencies Act, if you made regulations under that act.
Senator Beaudoin: Yes.
Mr. Read: The Standing Joint Committee for the Scrutiny of Regulations can have instant access to that interim order as soon as it is made.
Senator Beaudoin: To me, that is fundamental.
Mr. Read: Yes.
Senator Beaudoin: All right.
Senator Jaffer: Under schedule 23, you were talking about the 34 pieces of information you share with the U.S.; is that correct? You will be able to share that with the U.S., and you do that now?
Mr. Read: The schedule is in the bill to show the information that can be collected by RCMP, CSIS or Transport Canada — Transport in a very restricted sense. That is why the schedule is here. It is those 34. It is actually the same list of items that the airlines can provide to the United States authorities. Those are the two uses of that list of 34. When Andrea Spry was here, she told you that what they collect from people coming into Canada is essentially the same but not identical. They are close.
Senator Jaffer: You are saying that Europe is looking at making a list similar to this. Will their list be shorter?
Mr. Read: There have been discussions between the U.S. and Europe with respect to the collection of information on passengers for immigration purposes. That agreement has been reached. It was reduced to somewhere around 34 or 32, in my understanding. The European Commission has restricted it to that number.
Senator Jaffer: I understand that Bill C-44 provides the right to collect the information for people who leave on international flights, and this bill will provide internal information. Therefore, under proposed section 48.2, you will get information on who is travelling on our aircraft; is that correct?
Mr. Read: Bill C-44 did not allow us to collect information directly. That was for the Americans to collect information on people going into the U.S. Clause 4.82 here would allow the collection of information on passengers boarding aircraft in Canada, whether they fly internationally or domestically.
Senator Jaffer: Every time there is a flight, you will get information on every passenger.
Mr. Read: The gentlemen here will get it, not me.
Mr. Clark: Proposed section 4.82 enables CSIS and the RCMP to obtain from the airlines such elements on that list as exist. The airlines are not under any statutory obligation to create information. They do not necessarily fill all those data fields. The authority in the proposed legislation is for CSIS and RCMP to request the airlines to provide such elements as exist.
With respect to your comment a moment ago, senator, I should like to underline that clause 4.82 does not create any broad authority for information sharing with any foreign government. In response to a previous question, I noted that there is a very short list of circumstances under which any information could be shared by CSIS or the RCMP with a foreign agency, relating to an immediate threat to life, health, safety or transportation security or an extradition warrant. That is it. There is no broad scale, bulk information-sharing regime established by clause 4.82.
Senator Jaffer: Do I take it the regulations are being drafted as to what information you will share? Mr. Clark, you are saying that there will be limited information sharing with foreign regimes, but that has not been established yet; is that correct?
Mr. Clark: The bill establishes in legislation that short list of circumstances under which information might be shared, for example, knowledge of a person who has made specific threats with respect to transportation security could be shared with an American transportation agency if it was necessary to assist in transportation security. If it was a case of an immediate threat to life of any kind, either illness or a known threat between passengers on an aircraft, that could be shared with the foreign authorities. It is not a matter of doing this through regulation. We already have the list of circumstances under which domestically obtained information under clause 4.82 might be shared with foreign governments.
The Chairman: For clarification, are you referring here to subparagraph 10 on page 14, where it states that someone from CSIS or the RCMP may disclose information if he or she has reason to believe that there is an immediate threat? Is that what we are talking about?
Mr. Clark: That is one of the circumstances under which the disclosure can be made. The subsequent paragraphs set out the disclosure circumstances, including the health, safety or transportation security threat, which could be relevant either domestically or internationally.
The Chairman: But it is "immediate.'' That is where we get the words "immediate threat,'' correct?
Mr. Clark: It requires it to be immediate, yes.
Senator Jaffer: Ms. Normoyle, did I understand you to say that there is no racial profiling at the borders?
Ms. Normoyle: That is correct, senator.
[Translation]
Senator Corbin: I would like you to clarify some of the questions put by Senator Beaudoin. I am not a lawyer, but I still would like to understand either the English or French version.
If my understanding is correct, it would not be possible to seek a court injunction, in the event a minister issued an interim order. Is that correct?
[English]
Mr. Read: The topic came up in connection with the interim order, if we put an interim order in place. An interim order is an exercise of the regulation-making power of that act. It is like making a regulation, only instantly. I refer to it sometimes as an instant regulation. Whatever recourse you have under any regulation made under that act, you have for this other type of regulation. The fact that it was made faster does not remove any recourse to the courts after the fact if you have been harmed by that regulation and wish to take whatever steps. We have not changed the way someone can respond to a regulation. It is the same as though the regulation were made in slow time. It is the same authority.
Senator Corbin: An instant regulation does not automatically carry with it the enforcing of whatever power under that regulation. That is on hold until Parliament has pronounced itself; right?
Mr. Read: Wrong.
Senator Corbin: Wrong? Explain that to me.
Mr. Read: If I understood your question properly. For example, suppose we did not have the authority to close airspace, as we did on September 11, and we had done it by an interim order. That interim order would have been made, signed, finished within 60 minutes. Actually, our minister had made his decision within 30 minutes, and we would have executed it. That would not have gone to Parliament before it was executed. The whole issue of interim orders is that we need the regulation to be made immediately. This is what bothers people, and it bothers me as well, but nevertheless, we need extraordinary tools for extraordinary events.
Parliament can certainly deal with this after the fact, of course. If we make mistakes, we will have trouble answering for them.
Ms. Sherill Besser, Senior Counsel, Legal Services, Transport Canada: If I may add, senator, under the existing Aeronautics Act, no person could be convicted under an interim order that was not published in the Canada Gazette. We have not amended that section. Although the order comes into force, no one can be convicted.
Senator Corbin: Including the minister.
Rather than up-front legislating by Parliament, we are dealing with reverse legislating, or after-the-fact legislating, which seems to me to run against the grain of the very raison d'être of Parliament.
Senator Beaudoin: Your question is excellent.
The minister may make an interim order; and in a few seconds or minutes, it is the law of the land. That is not a big problem for me. However, suppose the decision of the minister is not adequate. Can we stop the minister? The answer seems to be no. Of course, if he makes a mistake, we always have recourse in court against the minister; but could we stop him? I do not have the answer. I ask the question.
We apply the emergency power in this bill. I am not against that, because if it is necessary for our country to do that, I agree with it. The emergency doctrine is very well established in our jurisprudence. The constitutional law is clear-cut on this.
However, we give the power to one person. That person may act brilliantly, or perhaps less brilliantly, but the fact is the minister has the right to do it. His question on the injunction would be: Could we stop something? My impression is that it is so fast that there is no way to stop it. It is only that if damage is caused, we may repair that damage. Is that also your opinion?
Mr. Read: On the point of prosecutions, in all the interim order provisions in here there is a paragraph that says no person shall be convicted of an offence consisting of a contravention of an interim order that at the time of the alleged contravention has not been published in the Canada Gazette, unless it is proven that the person had been notified at the time.
Putting the interim order into effect instantly does not make everyone culpable. First, you have to have knowledge of the interim order.
Senator Beaudoin: However, it has to be published, does it not?
Mr. Read: It has to be either published or you have to receive notification of it. On September 11, we notified every airline directly. We had to. As the events of that week unfolded, every time we made a decision we notified directly the people we intended to be affected by that. That is certainly true.
Your question is with regard to the minister making a decision while the interim order exists and what will happen if he makes a mistake. We are now into the realm of what kind of interim order we will be looking at. The events of September 11 required immediate action. The Quarantine Act is less immediate, in that perhaps the minister will add two items, and it only has four at the moment. It adds two more dangerous diseases to the schedule, and that affects what happens at the border. Perhaps, over time, people will agree that that was a little too much. This would be something for which I think you would have more time to formulate the implications and what you should do if you modify it.
Interim orders allow both kinds of orders, one where the regulation takes force and effect instantly, the other where it is made instantly but the impact is not so immediate.
To go back to your case, yes, the way it is proposed, I am sure there will be situations where we will have to do something in a hurry. It could be on Christmas Day, when people are hard to reach. It could be in the middle of the night. It could be at lots of different times. When an aircraft is under immediate threat, for example, or if we had some direct evidence that there is to be an attack from the Seaway by a foreign ship on the Gentilly nuclear reactor, then we would react right away and close the Seaway. There could be shipping companies whose officials would say, "I missed my contract because of this, that and the other.'' If we were wrong, we would certainly have to recognize those damages, et cetera. All this is true.
If the only action available to us was to close off the Seaway because there are four ships on the way and we do not know which is which, then I would not hesitate, because that we can do instantly. Boarding a ship is a cumbersome process.
Those are the kinds of events we are looking at, which I hope will never happen. As I say, I hope we will never have to use the interim order authority, but I think it has to exist.
The Chairman: In any case, any interim order has to be confirmed by the cabinet within 14 days and tabled in Parliament.
Mr. Read: It has to be approved by the Governor in Council within 14 days or it dies. It is also instantly referable to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations.
Senator Day: My first question results from Senator Corbin's question. I was left with the impression that these interim orders are an entirely new realm and that we are breaking new ground here. Is that the case?
Mr. Read: No, it is not the case. We already have provisions for interim orders in two acts. One is under the Aeronautics Act and the other is under the Canadian Environmental Protection Act.
Senator Day: Those already exist in legislation.
Mr. Read: Yes.
Senator Day: My other question will illustrate my difficulty in trying to frame questions that fit within this particular bill. I have a tendency to start thinking about Bill C-36, previous battles and previous legislation. Given that you are trying to achieve something so you can do the job better, how does the incident that just took place fit within this bill, or does that apply to some other piece of legislation? I am talking about the Jean case that was just recently in the news. Mr. Jean is from Haiti and allegedly charged with crimes against humanity. As I understand it, he came to Canada, was being processed as a refugee and was arrested. What, if anything, does that process have to do with this bill?
Mr. Read: On my left, I have the answer, nothing. I am looking to Mr. Clark to see if he has any comments.
Mr. Clark: No, nothing to add to that.
Mr. Read: It was an exercise of a warrant. I do not know much about the case. On the surface, I do not see a connection with provisions we are talking about here. I do not know the case in great detail, however.
Senator Day: You are able to share information. Canadian authorities, such as the RCMP, CSIS or Immigration, are able to act on information from outside Canada that has been shared with them, irrespective of this particular Bill C-7. Have you already shared that information and do you have already the authority to act on those things?
Mr. Clark: Generally, senator, both CSIS and the RCMP have international information-sharing arrangements already in place that are quite unconnected to any authorities that are established in this bill. Both the RCMP commissioner, who I understand is scheduled to join the committee, as well as the CSIS director, will be able to give more elaborate examples of situations where incoming information that would be of assistance in Canada may be shared.
The Chairman: Honourable senators, that will conclude our proceedings for today. I thank our witnesses and the vast supporting cast for being available for this long but very informative and useful session. We do appreciate all that you have done for us.
The committee adjourned.