TRGO Committee Meeting

STANDING COMMITTEE ON TRANSPORT AND GOVERNMENT OPERATIONS

LE COMITÉ PERMANENT DES TRANSPORTS ET DES OPÉRATIONS GOUVERNEMENTALES

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 4, 2001

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[English]

The Chair (Mr. Ovid Jackson (Bruce—Grey—Owen Sound, Lib.)): Good morning, ladies and gentlemen. I'd like to call the meeting to order. We're here to discuss Bill C-44, an act to amend the Aeronautics Act.

This morning we have Warren Everson, from the Air Transport Association of Canada. He's here from 10 to 11:30. We have Mr. Mackay as well. Gentlemen, you've been here before, so we'll listen to your dissertation and then we'll go to rounds of questions.

Mr. J. Clifford Mackay (President and Chief Executive Officer, Air Transport Association of Canada): Thank you, Mr. Chairman. I'm going to ask Mr. Everson to give a brief statement, and then we're available for any questions the committee may have.

Mr. Warren Everson (Vice-President, Policy and Strategic Planning, Air Transport Association of Canada): Thank you, Mr. Chairman. This will be the shortest statement that ATAC has ever registered with a parliamentary committee.

Bill C-44 is intended to release the airlines from potential legal vulnerability, which arises when we comply with a straight security request for information about our passengers. The bill exempts air carriers from the provisions of the Personal Information Protection Electronic Documents Act and the Privacy Act. Without this exemption, it was thought by industry lawyers that carriers might be sued by passengers for releasing information the passengers provided in purchasing their tickets.

In recent weeks, the United States has been pressing Canadian carriers to release various kinds of information as part of its increased security effort. Carriers want to comply and participate in the security effort, and passage of the bill will ensure that we're able to do so. So we support the passage of the bill and welcome your questions.

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The Chair: As you know, Bill C-44 was separated from Bill C-42. We're not dealing with Bill C-42; we're just dealing with this one act. I think the parliamentary secretary may have some information. The only person who has concerns is the privacy commissioner, and apparently we will have an amendment that will satisfy him. I thought the parliamentary secretary, Monsieur André...

[Translation]

Mr. André Harvey (Chicoutimi—Le Fjord, Lib.): I don't have it yet, Mr. Chairman.

[English]

The Chair: No, but do you have some information with regard... Oh, you don't have it yet. Okay, but you will have one by this afternoon.

[Translation]

[Editor's Note: Inaudible]

Mr. André Harvey: —

[English]

The Chair: Okay. Rounds of questions.

Mario.

[Translation]

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): First, besides the fact that, as mentioned, Canada would agree to provide foreign countries with the required information, Bill C-44 does not say what information will be provided. We are told that regulations would be adopted to determine the type or class of information to provide.

Does this not worry you? You agree to providing information without knowing today what type of information is required. In the American legislation, there are much more explanations on the type of information required, but in the bill that is tabled... I must tell you that the government promised to table the draft regulation last Friday so that we would have the information. We don't have it yet, but you come before the committee and it doesn't bother you. No matter what the information we will provide, you don't have a problem with that.

[English]

Mr. Warren Everson: It's not a great concern to us because we believe we know what the regulations will contain. However, as a parliamentarian I think it very much behooves you to ask. We expect that the competent state authorities named in this bill will be the United States primarily, and then other countries as they may wish to enter into agreements with Canada. I can explain a little bit the information that airlines can and do provide, if that would be useful.

There are basically three types of data that we are called upon to release. The first is called advance passenger information, and there is an international agreement on this information. That's the data that appears on the picture page of your passport. Carriers have agreed to provide that to a number of states around the world, usually just by swiping the passport through a machine, which then makes a file and transmits it. That indicates who that person is and has their gender, country of origin, proper name, and passport number. That's not private information. Our only problem with that information is the transmission problems sometimes. It's technically difficult if a carrier does not have a reader and has to input the data.

The more significant information that carriers are asked to provide today... Every time someone makes a reservation with a travel agent or from an airline, a file is opened, which is called a passenger name record, a PNR. That is a very important document in the airline industry. It contains the information the carrier needs to provide service to that individual.

A basic PNR is still fairly limited. It contains a name and a contact number, which we have so that we can inform them if the flight is changed or cancelled. It contains a reference to the form of payment they've made, whether they've bought with cash or a credit card. It contains basic information about their itinerary. There are one or two other basic elements, such as a telephone contact number.

However, the PNR can contain all the other information we have on that passenger's needs. If they have a special request, such as a handicapped person, or if they've made a special request for a seating preference or a kind of meal or any such thing, then that would all be in the PNR.

We convey those with an electronic data transmission. If we send it, we typically make it close to the time of the aircraft's departure. However, states that access PNR, such as Norway and Germany and the United States, tend to have a read-only access and they don't inform the carrier that they're going in or out. They just go in and take a look in their own time and they don't ask for any service from the carrier. They're just looking at the file as it goes by.

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Finally, air carriers create a manifest. Just as the plane is about to leave, we finalize the flight, we lock the flight down, and at that time we know who's on it, what the name is, what the seat is, and how many bags they've checked. That flight manifest has been a subject that state authorities have been asking for since September 11. Just at the time the wheels are up, carriers release that.

Our carriers in Canada, when they're asked for it in the United States, have been making a paper document, printing it, and giving it to the local INS or customs official. However, that's been the area of concern about privacy release. Canadians have been asking the RCMP to transmit that on a request basis, but that's slow.

[Translation]

Mr. Mario Laframboise: I want to be clear about my position. I agree that information on passengers should be provided, but I want to know, as regards the regulations they will adopt, what information will have to be provided. Don't you have a problem with giving your credit card number? Do you give it to anybody? It's not a problem to you. People can give a credit card number or things like that to whoever they want, and there's no problem. Why don't you give me your own credit card number then?

[English]

Mr. Warren Everson: We're not happy about it, but the airline industry wants to get out of the middle of this debate. If state authorities decide that for security reasons they need to see our passenger reservation data, then that's the state's decision.

Most of the information that passengers give us is not particularly sensitive. Normally we would not necessarily have the credit card number. We would have the method of payment, whether they paid cash or credit card. We'd only have their credit card number if they bought the ticket directly from the airline. Most people's credit card numbers won't be in our PNR.

I realize there is a privacy issue; it's just not one that the industry has a strong view on one way or another. We're under a great deal of pressure. It's a time of considerable difficulty for us. This bill allows us to comply with state demand, and we'd like to be able to do that.

[Translation]

Mr. Mario Laframboise: What is important when adopting legislative measures is to not go overboard, especially as regards privacy. Obviously, I can't imagine terrorists paying with credit cards if they know the credit cards are examined; they will pay cash.

Finally, those who will end up with information will be ordinary citizens, and there is a risk they might leak some of this information, because again, it's not with this bill and the regulations we don't have yet and were supposed to have Friday that we can guarantee the population, the ordinary citizens, that there will be no abusive use of the information provided.

I repeat that if credit cards were ever a means to trace terrorists, they would pay cash. It's that simple. Once again, it's the ordinary citizen who might end up with information that will be used by anybody. We don't have protection today. We don't have the draft regulations, unless the parliamentary secretary tells me... The House Leader came to see me Friday to tell me we would have them in the afternoon, that we would have even more than we were supposed to have, that we would have the regulations.

Finally, we have nothing, neither the regulations nor the drafts. Today, we will probably be pressured to adopt a bill, to railroad the bill, and this does not worry you. Well, it worries me if it does not worry you.

[English]

The Chair: Mario, I think we'll have the Transport Canada officials. They hopefully will be able to get into it a little further.

Paul.

Mr. Paul Szabo (Mississauga South, Lib.): Are you aware of anybody else who currently has access or who the airline would use the information for, for any purpose other than processing your airline travel information?

Mr. Clifford Mackay: We do provide some information to some other government authorities now because of the arrangements that are already in place with regard to the API, the advance passenger information, but in general we don't provide this information beyond the needs of the specific carrier in order to facilitate the passenger.

Mr. Paul Szabo: What information is supplied currently?

Mr. Clifford Mackay: It's passport information.

Go ahead.

Mr. Warren Everson: What information do we provide states now?

Mr. Paul Szabo: What are you doing now, before this act?

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Mr. Warren Everson: Carriers, where required, will read the passport and provide the API data that's off the machine-readable section of the passport. We do that out of Europe, we do it into the United States out of Honolulu, and I can't remember where in Europe. We do it from Britain into Europe, and from Europe into North America.

Mr. Paul Szabo: That's it, anything that's on the passport?

Mr. Warren Everson: Yes. There's a machine-readable page of the passport, and that's the data we transmit.

Mr. Paul Szabo: And that goes to whom?

Mr. Warren Everson: It goes to immigration authorities—just immigration, I think, depending on whether customs or immigration amends the primary inspection line. I'd have to get back to you on details of that.

Mr. Paul Szabo: Is information that the airlines collect for travel purposes also utilized by rewards programs?

Mr. Warren Everson: Each carrier has its own rewards program. I think what probably you're getting at is that carriers are increasingly in international alliances in which they may swap rewards points throughout the alliance. So if an Air Canada passenger seeks to fly on Thai Airways or some other airline that is in the Star Alliance, then yes, the information that they gave and the frequent flyer points will be available for the reservation system.

Mr. Paul Szabo: And they probably have access to information about seating preferences or other travel needs, phone numbers, form of payment, probably everything that you're being asked to give now.

A voice: Yes, if it's a connecting flight.

Mr. Clifford Mackay: If, for example, you're flying to Thailand, and you're flying Air Canada and then connecting to Thai Airways, that information will be communicated because you're on a connecting flight and there is a need to know so that the other airline can provide you with the services you're asking for.

Mr. Paul Szabo: Are there any restrictions on current airlines, such as Air Canada, self-imposed or otherwise, not to share that information with third parties for consideration, for instance?

Mr. Clifford Mackay: You're now talking about marketing information. Is that what you're getting at?

I couldn't answer the question specifically, but I can tell you that generally most carriers guard this information because they see it as relevant information in terms of the development of their own marketing and sales plans and programs. They're usually loathe to give it out in any broad way. But I'd have to get back to you on specific policies. I just don't know the answer on individual companies.

Mr. Paul Szabo: Are there any restrictions applied by Canadian carriers to the alliance or international partners on their usage of that information?

Mr. Clifford Mackay: Yes, there are specific provisions as to what information gets shared.

Operational information that's necessary to provide the service to a customer in an interline type of situation gets shared, but generally speaking, alliance partners do not share all their reservation information with each other, because even though they are alliance partners, they are also competitors in certain marketplaces.

Mr. Paul Szabo: Okay.

For operational purposes, for airline purposes, information is being widely disseminated now—with some safeguards, presumably—which I would suspect would substantively cover the same kind of information that's being requested by this bill, to be shared by the airlines with security agencies,

Mr. Clifford Mackay: I think that's a fair statement. It's difficult to be very precise, but yes, information is exchanged among airlines for the purposes of providing services to passengers.

Mr. Paul Szabo: Okay. So, substantively, what we're being asked to do for security purposes is already being done for business purposes. I guess then the question becomes, are you aware of any abuses or complaints with regard to the information that's currently being disseminated?

Mr. Clifford Mackay: I think the short answer is no.

The Chair: Thank you, Paul.

Welcome back, Bev. I hope you're in good shape. We missed you. It's your turn to have the floor.

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Mrs. Bev Desjarlais (Churchill, NDP): Mr. Chair, I missed being here as well. I'll make sure I go through all the wonderful information that you all brought back with you.

To follow a bit on some of the questioning that Mr. Laframboise and Mr. Szabo have been asking in regard to the information that's being required, in your own experience or thoughts on this whole situation, what specific information do you think would be reasonable to be asked for—say, information that would be the same from passenger to passenger? For every passenger, there's probably a name, a date of birth, those kinds of things, whereas it has been indicated that not every passenger is going to have a credit card or other information. Is there specific information that either of you would see as necessary?

Mr. Warren Everson: The key thing for us has always been not to have to play with the information at all. The debate or discussion about using data to facilitate people's travel instead of having them spend a lot of time with customs agents has been going on for some time, and I've been quite active over the last year or so on how we can move people through airports without having to see them. If we know who they are and have a record on them and we don't feel that they're any kind of risk, why are we stacking up people behind them while they get interviewed by a customs agent and consuming that resource on a low-risk situation? We've been active in this and have been promoting the idea of it.

In a meeting in the fall, we came up with a list of the ten data points that the state agencies said they thought would be of use to them. Different agencies want it for different reasons. Immigration wants a positive identification of who the person is so that they can decide whether or not in fact that individual is welcome into the country. Customs has a more complex brief. They are looking for patterns of travel and patterns of payment, on the assumption that certain kinds of behaviour might signal either involvement in illegal activities or people-smuggling, and so forth. Hence, in the use of contact numbers and telephone numbers, you might see patterns and say, we know that person has been on five flights that have had a lot of asylum seekers, therefore we think that person is somehow involved with asylum seekers and we want to have a word with them.

So they all want them for different things, but generally the key thing for the airline industry—and it's not exclusively Canadian, I hasten to say—is not to have to play with our data.

We've always said that if we have this information and we're using it for our own purposes, and you want to have a look and you pass the necessary laws through your parliaments and congresses, that's fine, on a don't ask, don't tell basis; it's not interfering with us. What we don't want to do, and financially we're very alarmed about, is the possibility that we would have to manipulate the data to make it right either for reasons of privacy legislation or just because the state agency says they don't like the way it is presented because it's not convenient for them, so would we please put it in Cyrillic, or Russian, or Greek, or write it upside down or something.

There is evidence that this happens from time to time. Air Canada has to provide some data into the United States for the in-transit pre-clearance through Vancouver, and they've had to filter the data to keep out certain data elements in compliance with the privacy law. British Airways has to do the same thing to provide their own immigration authorities with data. The cost is tremendous, and the complications in the computer system are very great.

So we've basically said that if we have it and it's going by, and you pass the appropriate laws, take a look. Whether or not it's going to be of huge value to you as an investigative tool, that's your call.

Mr. Clifford Mackay: That point is worth reinforcing. If you just sit back and think for a minute, if you have 75 or 80 different countries out there all saying they want certain kinds of information, and that information is not standardized and they're wanting us to in fact juggle the information to do it for them, we're into huge costs and very complex processes, and it does nothing to facilitate service to the passenger. So we're concerned if governments are headed in that direction.

Mrs. Bev Desjarlais: On Mr. Laframboise's comments, too, about the regulations, I guess it is the department that we're really going to have to deal with as far as the regulations are concerned, because I think that was one of the criticisms that a number of members had, that although the bill was in front of us, we really didn't know what the heck anybody was going to do with specific parts of it. As to the comments in regard to who's going to be looking after the airline security checks and those kinds of things, none of that really gets addressed within the bill.

So I would imagine that your position before as to who you thought should look after security is still the same. Or has there been any change in who you view as best to look after the airport security?

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Mr. Clifford Mackay: No. We continue to believe that an institution similar to NAV CANADA is the way to go. There is already the kernel of that kind of organization in existence in an organization called the Air Transport Security Corporation, which could be easily amended and changed into that sort of institution.

We think it's the right way to go. It gets all the key stakeholders involved in the governance process as well as the operating process, which we think is very important, and it sets up an institutional framework that is dedicated to good-quality security, which we think is necessary for the country, and necessary, frankly, to provide better service for our passengers.

It's also an institutional structure that can deal with change over time, which is something we think is very important as we get into the new environment that unfortunately we're all going to have to live in in the future as the result of September 11. We don't think it's going to be just a one-shot thing. We think there will be changes over time and you need institutions to deal with those matters. So we're very clearly still on that same wavelength.

Mrs. Bev Desjarlais: You don't see the possibility of say the RCMP or some other agency under the government being in the best position to provide the security?

Mr. Clifford Mackay: No, we don't. The RCMP is a police force. Its primary function in life is to investigate and catch criminals. We're not talking about policing here. We're talking about security screening—a very different function.

Mrs. Bev Desjarlais: I don't know. I thought the whole idea of what we're doing here is to try to lower the risk or totally alleviate the possibility of terrorist attacks, of having people who are not of a good nature, so to speak, getting on planes, possibly having drugs on planes, risking the lives of the passengers, or using the airlines as weapons. To me, that goes a little beyond just security.

I wonder how you would feel if it were suggested we put a representative board in charge of providing security for the nation that would be in charge of, say, finding out who all the criminals in Canada are who are involved in drugs or criminal activities. How would you feel seeing that from the perspective of the whole country?

Mr. Clifford Mackay: I think the first comment I would make is if you're talking about security in its broadest context, you're talking about the whole system, not simply about one piece of the pie, which is the screening of people who arrive at airports to get on airplanes. That's a much larger question, and we would obviously agree entirely if the implication were that police forces, intelligence agencies, and other government authorities, such as immigration and customs, have a critical role to play in all of that, particularly in the intelligence and communications-gathering end of the whole process.

Security screening at airports is intended to be one piece of that much broader puzzle. What that function is all about is trying to ensure that anyone who is getting on an airplane or any bag that's going on an airplane is subject to the appropriate level of scrutiny for risks such as bombs or other sorts of contraband that you don't want on airplanes—guns, etc. It's not intended to be an intelligence-gathering function. It's intended to do that specific job. The job of trying to define who high-risk people are and that sort of thing is, frankly, clearly within the purview of government institutions and agencies, and we would not in any way suggest any kind of private firm should take that on.

Mrs. Bev Desjarlais: Thanks. That's fine.

The Chair: Okay, thank you very much.

Val.

Ms. Val Meredith (South Surrey—White Rock—Langley, PC/DR): Thank you, Mr. Chair.

Thank you for appearing before us on this. I know it's not an all-inclusive bill or anything, but it obviously is an important issue to some individuals. I, more than others, see that this is only one step in the direction we should be going.

We heard from most people that part of the problem of September 11 was a lack of sharing intelligence. I assume that's what this bill is trying to allow, that the airline industry can share intelligence with other agencies, in case there's something in their passenger manifest that triggers a response from them.

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If I understand correctly, you already have an advance passenger information system, and you already have the passenger name record.

Mr. Warren Everson: Yes.

Ms. Val Meredith: Now, do most of your passengers know you have these data banks?

Mr. Warren Everson: Well, that's a really good question. I guess passengers know they've provided certain information to their travel agent or to the airline.

Ms. Val Meredith: And they've done that voluntarily? They've filled out a form volunteering information as to home address, what kind of meals they prefer, what kind of seats they like to sit in?

Mr. Warren Everson: Well, they may have done. Most people don't get into those more complicated service requests because they're just getting on a plane and then they're going to get off, so they don't need to tell the airline very much. Frequent flyers may register those kinds of preferences for a higher level of service.

We don't, at the moment, make an informed-release request. We don't tell the passenger, by the way, this information may be passed along to the following agencies. As far as I know, we will not have to do so even if this bill passes. However, I do think the question you and Mr. Laframboise raised is very timely. We would like to see the regulations, because if nothing else, we need to answer our customers when they ask what we'll do with this information. We would like to know what safeguards will exist.

However, having said that, most of this information is provided voluntarily. It's mostly fairly innocuous information, and my guess would be that most airline passengers would be perfectly happy to see it in the system and shared with a state authority, otherwise they're going to see a customs agent who has the power to take them off to the side and question them until they're blue in the face.

Ms. Val Meredith: To your knowledge, have you ever had a problem with people challenging the sharing of information in the airline industry? Has there ever been an instance when somebody said they don't like the fact that you're sharing information?

Mr. Clifford Mackay: To the best of my knowledge, no. I'm not aware of any cases of that nature. We could go back and check to see if there's ever been any complaints with the Canadian Transportation Agency. I assume, if there had been any in Canada, that's probably where they would have been directed. But I'm not aware of any, personally.

Ms. Val Meredith: You mentioned there are three countries—Norway, Germany, and the United States—that get this passenger name record, or have that information. How is that released? Is there an understanding among the airlines and the states that this information is required, and they've been doing it anyway?

Mr. Warren Everson: Yes. There are more than just those states—Australia also accesses Qantas's reservation system, though not anybody else's as yet.

I'm not chapter and verse on what happens everywhere, but in the case of the Germans, for example, when they have an investigation underway, they ask Lufthansa for all the data they have on that passenger. I think they have the right to do so without providing any kind of warrant. Lufthansa provides it and then typically, they interpret it, because these PNRs are a gobbledegook of acronyms. They're very hard to read.

The United States set up a system they're currently bringing carriers in on—most of the majors have now signed on—where the U.S. accesses their PNR data where it is, in situ, on a read-only basis. They have terminals, and they go can look at it. The carriers don't know when they're being accessed; they don't know who's being looked at; they have no contact with it at all.

Ms. Val Meredith: And that would be the CAPPS program?

Mr. Warren Everson: It feeds into the software, I presume, that the FBI uses for CAPPS, but I'm not very knowledgeable about how that system works.

Ms. Val Meredith: So in essence—and this is what Mr. Szabo was referring to—this kind of information is already shared in many different ways. It's being done without legislation, so obviously it was felt that either there wasn't any threat to privacy or it wasn't an issue. Would that be fair to say?

Mr. Warren Everson: I don't know the legislative basis that each state has done it on.

Ms. Val Meredith: Okay. Do you feel that most Canadians flying to the United States through the pre-clearance program are already releasing this information to the United States?

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Mr. Clifford Mackay: I think they certainly have an expectation of that, because when they go up to the booth on pre-clearance and hand the officer their passport or some form of identification, I think the expectation is that information is in fact being imparted to a government official in the U.S. Whether or not that information is being properly lodged and all the rest of it is a technical question I don't think they're concerned with.

Ms. Val Meredith: Would it be fair to say the majority of Canadians flying to the United States understand and appreciate that state has a right—and it would apply to any country where you go through a pre-clearance or a customs check—to that information, as to who is landing on their soil.

Mr. Clifford Mackay: Oh yes, I think the very large majority of Canadians would have that expectation, just as they would have the expectation of our own authorities doing the same, so we know who's coming and going in Canada.

Ms. Val Meredith: So then it's a question of timing more than anything, is it not, whether the information is provided prior to taking off in an airplane that's going to land in a foreign country or the same information is given when you land in that foreign country at a gate? Is it not fair to say it's the same information; it's just a matter of timing?

Mr. Warren Everson: Pretty much. Customs agents have the right to ask you any number of questions; they typically don't. The challenge for the Canada-U.S. relationship is that we don't use a passport between our countries now. A passport is very simple for the airline industry. There's set data; typically we just run through a reader. We don't have any kind of obligation. Because Canada and the United States don't use passports between us, and a lot of Americans don't think they're going to another country when they come to Canada and don't expect to see a lot of state hassle—because it's just Canada; you know, a New Hampshire sort of thing—I think one of the reasons state authorities in the United States are seeking other kinds of information is that we haven't been ordered to use passports, which are a simple, straightforward system. They're saying, what other information out there could we access?

Ms. Val Meredith: Okay, thanks very much.

[Translation]

The Chair: Mario Laframboise.

Mr. Mario Laframboise: It's only to emphasize that the information, as we speak, is provided by passengers on a voluntary basis. You did say that it was voluntary. After the adoption of the regulations, if there are American requirements, some of the information will be mandatory. Some items may no longer be voluntary. So it's important to have the regulations to know which type of information will be mandatory.

You mentioned in your remarks, Mr. Everson, that ten elements of information may be required. Do you know which ones? Do you have the list of information items that may be required?

[English]

Mr. Warren Everson: I know I have it somewhere in my files. I don't think it's tremendously sensitive, but this was a list of the data we made available when the carriers met with them and said here's all the stuff we have. The state authorities said, “Well, these items in particular might be useful for law enforcement or investigation.” They included things like the visa expiry date, the proper name of the passenger, and things like that.

But I certainly agree. When Transport Canada is before you, you should ask them what regulations they intend to put into this situation, so that we can all know what restrictions exist on the information that is provided.

[Translation]

Mr. Mario Laframboise: It is clear that we asked for them. We asked the government to provide them more than one week ago, and you must understand that the Leader promised to provide them. However, we don't have them yet. As far as I can tell, you did not get them either. Therefore, you did not participate in the information on the regulations. This is why, when we know more about the regulations, you may have comments to make about the regulations. I understand that you may have new requirements that may involve costs. Therefore, you too want to know how far these regulations go.

When you talk of costs, are there things that could involve significant costs and that you want to warn us about?

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[English]

Mr. Clifford Mackay: I think the answer's yes. One of the difficulties we are going to have with this system is that not all air carriers have similar sorts of systems. Large carriers such as Air Canada have very complex and sophisticated computer systems, which contain an awful lot of data that can be manipulated to provide different information to different people—not without cost, but it's not impossible to do so.

Many of the smaller carriers, such as Air Transat or Skyservice, do not have computer-based reservation systems. They rely very heavily, because they're in the charter business, on sales through travel agents and tour packagers. They receive their passenger information from those sources. Usually that's by way of fax or some sort of communication of that nature.

In moving to this system, companies of that nature are going to run into some difficulties, because if you have to deal with this system manually, it is going to be expensive and time-consuming and difficult. So there are some issues being faced by some of our companies—and of course now is not a good time to be looking at new costs in the industry, because everyone is frankly struggling and trying very hard to keep their costs down.

It's not without some concern that, if we move in this direction, we think there's going to need to be some time so that companies that do not currently have sophisticated systems can deal with these issues and be given the time to deal with them appropriately and properly. So yes, there are some cost issues. I wouldn't want to leave you with the impression that they're overwhelming, but they do need to be dealt with.

[Translation]

Mr. Mario Laframboise: Thank you.

[English]

The Chair: Bev.

Mrs. Bev Desjarlais: I think what's happened over the years is we've been led to believe computers can do anything just at the flick of a button. Quite frankly, the industry has given us that impression, but the reality is it doesn't always work like that, and it's a very costly process. I recognize that.

Just to follow up on the comment about the information that's already being relayed between countries on passenger lists, my understanding is that what's also being requested—and I think has more or less been agreed to—is that even if planes aren't necessarily landing in the U.S. but are flying over U.S. airspace, they'll get the same passenger list as well. Is that correct?

Mr. Warren Everson: I've not heard that.

Mr. Clifford Mackay: I think there's an expectation that we're headed in that direction, but we haven't been specifically asked. There are some other security measures we have been consulting with the U.S. authorities on, with regard to baggage checks and this sort of thing, where they are indicating to us that if you're over-flying the U.S.—in other words if you're going through U.S. airspace—there may be further restrictions they're looking for, even though you're not in fact physically landing in the U.S. I think it's a fair assumption to make that they will be concerned about over-flights, but we haven't had specific information yet.

Mrs. Bev Desjarlais: I'm just trying to look at the problem charter companies may have in recognizing the situation they're in now. Since those individuals on the plane would have to go through customs anyway—so there is going to be a timeframe involved if there isn't some pre-clearance done—they're going to have additional questioning through customs.

Is it possible, or do you see it as being not possible, for travel agents or whoever to get some specific information? I'm not talking about your visa numbers or your passport numbers, because I recognize not every person's going to have them, but things that would seem reasonable for travelling within any country, including name, date of birth, place of birth, and possibly citizenship—things that are pretty standard—without infringing on the privacy of credit cards or other things. Would you see it as possible for travel agents or other people involved in the process to get something like that information?

Mr. Warren Everson: I'm sure it's possible. The charter industry has to do some quick talking over the next couple of months to figure out how to manage this, and I don't know the relationship between the travel agents and state authorities. In the case of the United States, they exercise influence over our carriers because they can deny us access to the market.

Charter carriers don't typically don't have a PNR for a passenger, but the travel agent does. I assume that's the way they're going to square that circle: they're going to have some way to transmit it from the travel agent.

Mrs. Bev Desjarlais: My comment, I know, is probably going to be seen as additional work involving possibly some additional costs. I'm sure nobody here wants to put an overly costly system in place. Quite frankly, I think if airline passengers are going to be giving up the rights of certain privacy and making a lot of efforts on their part to make this process work, then there has to be some give on the basis of everybody else involved in the industry as well and certainly an attempt to balance the cost and the security issues in such a way as to make it feasible.

• 1045

I had one other question, but I can't remember what it was. Actually that's it, because I can't think of it, sorry. That's it.

The Chair: Paul.

Mr. Paul Szabo: To the extent that there is a discernible cost, and quite frankly even if there is already a pre-existing cost of collecting and maintaining this state, is it the intent of the airline industry to ask for compensation from the government?

Mr. Clifford Mackay: In general, no. Some very specific circumstances may arise where individual companies may say this is an extraordinary cost for us, but in general, no. The industry has not been saying we need to come to government looking for financial assistance here.

I have to put one caveat in that, though. We haven't seen the regulations. We are operating on the general assumption that what governments will do will be to access our system in a reasonably benign way and then use the information for the purposes they feel are appropriate. So we're information providers. We are not information manipulators or managers in this process.

If all of a sudden government agencies want us to be information managers and manipulators, then we are into a whole different context of cost and structure and accountability, etc. I would probably revise my comment to you, if that's where we're going. But that's not our understanding at the moment. Our understanding is that we're being asked to provide information pretty much as it exists at the moment.

Mr. Paul Szabo: Thank you.

The Chair: Okay, we'll go back to Val then.

Ms. Val Meredith: Yes, thank you.

To clarify this, could there not be a requirement for a passenger when they buy a ticket to sign a waiver that they understand this information is going to be forwarded to the state to which they're going and that they waive any concerns about privacy?

In MPs' offices we handle waivers all the time when there's a benefit to be gained by the person and they know what they're giving up to get that benefit. Is that not also feasible where there's just a—no, seriously—where a waiver, a piece of paper, is put in front of them that says “this is to notify you that the information on this form will be advanced to the state you're travelling to and do you agree”? If you don't agree, then you'll find some other means of transportation.

Mr. Clifford Mackay: It's not unreasonable. The only problem is volume. In Canada last year 40 million people flew. So 40 million waivers or some portion thereof, because obviously that's also domestic, is difficult.

There is another choice, and it's one that is used fairly routinely. For example, when you go to the airport and you stand in the line for pre-screening, you'll see a sign up there saying you don't have to do this. But on the other hand, don't expect to get on the airplane if you don't. It's your choice. Something along those lines that may very well be built into the tariff structure through the CTA or something of that nature may be where we're going, but we're not there yet. So I can't answer the question specifically.

The Chair: André Harvey, please.

[Translation]

Mr. André Harvey: I understand what my colleagues are saying, but before moving on, I want to say that at the beginning of the meeting, I did not have the official wording of the amendment that will be tabled. I would nevertheless like it to be circulated among my colleagues to allow them to carefully review it before the witnesses and our officials talk to us about new restrictions that may be included in the legislation regarding such things as national security and public safety.

I will read the amendment in its integral version, strictly for our witnesses' information. I would ask the clerk to circulate it to everybody. I want to assure my colleagues that I did not have the amendment at the beginning of the meeting. So I didn't want to play hide and seek. I didn't have it, and the final draft was not ready. We have it in the document that was sent us.

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I propose that Bill C-44, in Clause 1, be amended by replacing line 19 on page 1 with the following:

(2) No information provided under subsection (1) to a competent authority in a foreign state may be collected from that foreign state by a government institution, within the meaning of section 3 of the Privacy Act, unless it is collected for the purpose of protecting national security or public safety or for the purpose of defence, and any such information collected by the government institution may be used or disclosed by it only for one or more of those purposes.

(3) The Governor in Council may make

We will have an opportunity to discuss this amendment when the Transport Canada officials speak to us in a few minutes. However, I thought it was important to have it circulated to all my colleagues before the witnesses arrive. Thank you.

[English]

The Chair: We'll go to Mr. Shepherd with regard to these particular witnesses. We might have a gap in between. The officials commented that we might want to look at it, or we can look at it in the interim.

Mr. Shepherd.

Mr. Alex Shepherd (Durham, Lib.): I just have a very simple question. The preamble to Bill C-44 says “Despite section 5 of the Personal Information Protection and Electronic Documents Act”—in other words, the processes to override the meaning of that act. Are you telling us that the practices that you're now engaged in are in contravention of the Personal Information Protection and Electronic Documents Act?

Mr. Clifford Mackay: No. One of the issues we've had to date, prior to this consideration, has been to be careful that we are not in violation of that act. That has caused some problems from time to time with certain requests we have received where we have had to say to various government authorities, sorry, our understanding is that this may be in contravention and we cannot provide you with this information. This clarifies it for us.

Mr. Alex Shepherd: Could you then give us an example of what sort of a request you would feel you couldn't comply with without this amending legislation?

Mr. Clifford Mackay: If, for example, we had a request for information about the method of payment that passengers may have used in the past for a particular transaction with us, we've had legal advice to indicate that may very well step over the line with regard to privacy. Without the specific approval of that passenger, that would be difficult information for us to communicate to certain government authorities.

This act clarifies that for us, makes it clear what we can and can't do, and who those authorities are. In that sense it is very helpful to the industry, because in the past there has been some ambiguity.

Mr. Alex Shepherd: Getting back to the information that you see us sharing, this goes obviously beyond passenger lists. It's talking about how the ticket was paid for. Is that presumed to be one of the things that will be shared?

Mr. Warren Everson: Yes. State authorities have been asking since September 11 for flight manifests and also the passenger name record, which is a reservation system that contains in its fullest form about 35 little data elements about the passenger. Those things are held in the electronic reservation systems of the carriers that have those systems. They have been what the agencies, especially customs, want to see to determine whether they can discern any patterns in terms of payment systems or travel patterns of passengers in order to match them up.

Mr. Alex Shepherd: Presumably these 35 data fields include method of payment—

Mr. Warren Everson: Yes.

Mr. Alex Shepherd: —among others. Are you then going to share information on all 35 data fields?

Mr. Warren Everson: In the past we have not. Under the pre-clearance agreement, for example, Air Canada provided some PNR data to the United States for pre-cleared in-transit passengers across Vancouver. But they provided only 27 items—I could provide you with a list of what those items were—and a few personal items such as the meal and seating preferences had been taken out of that. It's my expectation that what states will want now is access to the entire PNR.

Mr. Alex Shepherd: I would think it's almost more difficult to be selective than it is just to say give us the whole 35 fields and then we'll decide what we're going to do.

Mr. Warren Everson: Or it would go a little bit more expensive for us.

Mr. Alex Shepherd: In other words, your orientation then is to say just give us your reservation system information, period.

• 1055

Mr. Warren Everson: We've always said to states, whatever you do, don't ask us to play with the information. We collected it for our own business purposes in a form that makes sense for us. Don't ask us to rebuild this data for you to turn us into an investigative or research agency for you. If you want to see what we have, then take a look, but leave it at that. If you want to do anything more with the data, then do it at your own expense.

Mr. Alex Shepherd: How do you deal with consistency? You mentioned that other... I presume that we're talking about the difference between Oneworld and Star Alliance and about their reservation systems, which are different. Are you going to be able to get that information in a holistic form where you can compare passenger lists whether they're from Star Alliance or Oneworld, or are they too different?

Mr. Warren Everson: To some extent, and that's obviously a big problem, but it's a problem the industry has to deal with anyway as different carriers join these alliances or we work out transit relationships with carriers. There is software that allows translation of the information. I personally have some reservation as to how useful a passenger name record will be for investigative agencies. Because the information is voluntarily provided by the passengers, it's unlikely to contain too much that's very incriminating.

We already have the amount of information we need to do our business, and we don't want any more information. For example, take a passenger who is using several different air carriers in a single itinerary, as happens more and more these days. By the time you get to the final carrier, perhaps coming into the United States at that point, that final carrier doesn't have very much information on the passenger because they don't need it. They just have the bare bones of the last step of the itinerary, just what the previous flight was, because they need to know where to go to find the bags.

Mr. Alex Shepherd: Given the reality of Canada, where we have Air Canada and Star Alliance, what happens to WestJet? What if WestJet starts running flights to the States, yet they're not part of Star Alliance and therefore they don't have manifest lists that look anything like the kind of information you get from Air Canada? Does that put them at a competitive disadvantage?

Mr. Warren Everson: Yes. One of the reasons WestJet doesn't cross international borders is that to do so is an expensive proposition, and they also don't have relationships with other carriers for through travel.

Mr. Alex Shepherd: So in fact, because some of this information might be preventative for them, we're putting a big hurdle in front of them, saying you can't get into the international carrier business because you can't fly with...

Mr. Clifford Mackay: Let me be clear: yes and no. Tomorrow, WestJet could decide to fly anywhere in the States under the open skies arrangements if they felt that it was in their business interests. They don't have to interline to do that, in other words, they don't have to have a relationship with another carrier; they can fly direct to Vegas or wherever they want to go. But the minute they make that decision, they do subject themselves to the requirements of the U.S. security and INS systems.

WestJet does have a computer reservation system they use. Whether or not that system is sophisticated enough to meet those information requirements, I couldn't tell you, but they don't have to interline to go into the U.S. They can do it on their own if they wish to. Now, if they want to get into what's called interlining, where, for example, you can go into the WestJet office and buy a ticket and connect to United to go someplace else, that's a whole different kettle of fish. That's exactly what my colleague is talking about, and that is expensive.

Mr. Alex Shepherd: But United would have access to the Star Alliance system and the reservation system?

Mr. Clifford Mackay: Absolutely, and they pay an enormous price for that infrastructure. United probably has one of the most sophisticated computer systems of any company in the world in order to do all this sort of thing.

Mr. Alex Shepherd: What about charter carriers? I think that if Air Transat wants to go down or back and forth to Las Vegas, they have to comply, even though they're not part of Star Alliance.

Mr. Clifford Mackay: That's correct, and as I mentioned earlier, they do have a real problem because in the case of a company like Air Transat, they don't have a computer reservation system. How can they bring this data together? In many cases they don't even have the information. The information is with some travel agent someplace. That is a real issue we're going to have to work through, as I was mentioning earlier to your colleague on the other side here. There are some real world problems that have to be sorted out here, and it's going to take some time to do so.

Mr. Alex Shepherd: Do you anticipate some kind of transitional period for these carriers to comply?

Mr. Clifford Mackay: We would certainly hope so. We've been advocating that to Canadian officials, and Mr. Everson's going to be in Washington early next week on precisely that kind of issue.

The Chair: Thank you very much.

Monsieur Laframboise.

• 1100

[Translation]

Mr. Mario Laframboise: We were presented with an amendment tabled by the parliamentary secretary during the hearing. This amendment in no way resolves the discussions we had at the beginning of the meeting. The amendment proposes that “No information provided [...] to a competent authority in a foreign state may be collected from that foreign state by a government institution [...] unless it is collected for the purpose of protecting national security.”

In fact, what it says is for people who would take Canadian planes abroad. They are told that the information they provide in Canada would only be used for national security and public safety purposes of for defence purposes. This is the amendment we are presented with today and which reassures the foreigners who want to come here. However, our concerns are about the information that our citizens from Quebec and Canada must provide, and that's what we don't have yet.

We have every right to ask ourselves what is going to be in the regulations, and finally, what information we will have to provide and what our obligations are going to be as an organization. The amendment presented to us by the parliamentary secretary changes nothing to this, absolutely nothing, gentlemen.

So, I ask my first question again. Would it be important, according to you, to know the type of regulations, the regulation drafts, and to know how the information will be processed before adopting such a bill?

[English]

Mr. Warren Everson: Yes.

[Translation]

Mr. Mario Laframboise: Thank you.

[English]

The Chair: Thank you very much, gentlemen, for being here.

I see the officials from Transport Canada here. I'll suspend for a couple of minutes so they can take their positions.

We appreciate your input, and hopefully you'll stay around to listen to them. You might get some more information you require as well.

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• 1106

The Chair: I'd like to reconvene the meeting.

We have with us William Elliott, assistant deputy minister, and he's going to introduce our guests from Transport Canada.

Mr. William Elliott (Assistant Deputy Minister, Safety and Security, Transport Canada): Thank you, Mr. Chairman.

As you indicated, I'm an assistant deputy minister with Transport Canada, the assistant deputy minister for safety and security. I'm joined this morning by my colleagues from Transport Canada, Hal Whiteman, the director general of security and emergency preparedness, and John Read, the director general, transportation of dangerous goods. Also with us this morning is Sherill Besser, a lawyer from the Department of Justice working in the Transport Canada legal services unit.

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

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

[Translation]

Currently, the Canadian Privacy Act and Electronic Documents Act would not permit Canadian carriers to provide the information required by the Americans.

In keeping with the Minister of Transport's role in the promotion of aeronautics, the Minister supports this Bill, as it would, notwithstanding the Personal Information Protection and Electronic Documents Act, permit the reporting of required information to the United States authorities. Similarly, the Act could allow, subject to regulations, for the providing of passenger and crew information to other countries.

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

[English]

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

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

• 1110

Mr. Chairman, we would be pleased to respond to any questions you may have on this bill. Thank you.

The Chair: Thank you very much.

We'll go to Mario Laframboise of the Bloc Québécois. Mario.

[Translation]

Mr. André Harvey: Mr. Chairman, I wonder if Mr. Laframboise would allow me to make a brief comment, to make sure we are on the right track. Do you allow me to, Mr. Laframboise?

Mr. Mario Laframboise: No, I don't allow you because I'm going to clarify. Mr. Chairman, do I have the floor?

The Chair: Yes.

Mr. Mario Laframboise: I have to mention that we do indeed have a proposed regulation at the last page of the document I reviewed this morning, an outline of the draft regulation. This is the document you gave us yesterday. It is the document the Leader promised us and that we had not yet received yesterday morning, nor Friday, but that we were given. Is that it?

[English]

Mr. William Elliott: I'm referring, Mr. Chairman, to the document

[Translation]

“Outline of the draft regulation to be proposed pursuant to the Aeronautics Act, as modified by Bill C-44.”

Mr. Mario Laframboise: So, in the bill, this mainly refers to subsection (2), which will become (3):

(2) The Governor in Council may make regulations for the application of this section, including regulations:

a) governing the type or class of information that may be provided;

Finally, this draft regulation directly relates to the second part of the bill before amendment. Is that it? And it provides the list of information on passengers and crew members.

To make things clear, we are not to expect other types of regulations when reading subsection (2) of the bill. The type of regulation we would have is the one contained in the bill you are tabling. Is that it?

[English]

Mr. William Elliott: Yes, that's correct. But as indicated on the document, this is, as was undertaken by the minister, a sample of the kind of regulation that could be proposed under this. I believe that should Bill C-44 be passed, the intention of the minister would be to bring forward regulations substantially in the form that is here.

As I've indicated in my opening remarks, in terms of the request for this kind of information, currently we're dealing as a matter of first priority with the United States of America, but there are other countries that we anticipate will be looking for information. The types of information that could be provided and the countries to which information could be provided would be prescribed in the regulations.

[Translation]

Mr. Mario Laframboise: When I read schedule 1 of the draft regulation, I see that the first five sections are practically identical to the American legislation. That is the Americans denounced... Am I wrong? It's practically identical to the American legislation, in which they required five first pieces of information: name and surname, date of birth, citizenship, sex, and passport number. It's practically identical to the American legislation. Is that correct?

Mr. William Elliott: I agree.

Mr. Mario Laframboise: However, schedule 2 goes further. I would like you to summarize this. I would not want you to go over all of them, but just tell me what would be the major changes that could be required to the 29 items which, according to you, would be a surprise for the industry? Are there any?

[English]

Mr. William Elliott: To answer to your second question first, they're not a surprise to us. The American legislation, as you've indicated, does set out in the first part a list of types of information similar to what's in schedule 1. The American legislation also talks about the passenger name records, and my understanding is that the kind of information listed in schedule 2, from one to 29, is the kind of information that is typically within the passenger name records of carriers.

• 1115

[Translation]

Mr. Mario Laframboise: No, but for this to become information... Take, for example, the passengers' telephone numbers. Number 23 indicates that a passenger's telephone number is information that could now be disclosed to other authorities. Is this type of information normally provided?

[English]

Mr. William Elliott: It is information that's typically provided to carriers and those who run reservation systems, to my understanding, yes.

[Translation]

Mr. Mario Laframboise: Yes, but don't you have a problem with the fact that we have to provide them to other countries? Don't you have a problem with that?

[English]

Mr. William Elliott: We would have a concern, but that would be dependent in large part on the circumstances under which the information was requested, the purpose for which the information was requested, and the purposes for which the information could be used. The whole purpose of the bill and the provision of information is first and foremost in relation to aviation security. The American legislation to which you referred does make reference to both aviation security and national security. So I think in appropriate circumstances it would be appropriate for the phone number of a passenger or a crew member to be provided.

[Translation]

Mr. Mario Laframboise: And as required in item 27, passengers must provide their itinerary. They must indicate all places they will go to, when they will not be using public transit, etc. Item 27 reads:

27. An indication that the itinerary covered by the passenger name record includes segments that must be accommodated by undetermined means of transportation

Are these things normal, according to you? Do you think it is normal that this information should be provided to anyone who could require it? Do you think that's normal?

[English]

Mr. William Elliott: I'm not sure I really understand the question. You talk about whether I find it natural. I think we are, as I indicated in my opening remarks, in a new environment since September 11. In regard to countries that require passenger information because of security concerns, it is not surprising, in my view, that authorities in those countries would want to know about a passenger's itinerary.

[Translation]

Mr. Mario Laframboise: Let's be clear. There are things that involve respecting people's freedoms and on which we can all agree. I do think it is normal to provide information such as the date the ticket was bought, whether it is a one-way or return ticket, the luggage ticket numbers, the passenger's seat on the plane, and the passenger's name and address.

However, the fact that the information list mentions that it could be required to disclose to foreign countries the whereabouts of people, including the passengers's telephone numbers, is a problem to me. You don't seem to have one, but I do.

• 1120

I have a problem with the elements that are part of the list. I've just read it, and I'll tell you honestly that items 23 and 27 astonished me. Knowing where the person is going abroad is all wright, but following them everywhere they go, no! You find this normal, not me. But everyone has the right to an opinion.

[English]

Mr. William Elliott: I don't think as a matter of course that people should be followed up in terms of where they're going. But if there is a security concern, I think the kinds of information that you have referred to can be useful, first of all to determine whether in fact there is a security concern, or what the nature of the concern is. I think that certainly such information should not be able to be used for any purpose. Certainly I think this would be a use of personal information that would be inappropriate.

[Translation]

Mr. Mario Laframboise: I read again the amendment to subsection (2) you proposed a while ago:

(2) No information provided [...] to a competent authority in a foreign state may be collected from that foreign state by a government institution, within the meaning of section 3 of the Privacy Act, unless it is collected for the purpose of protecting...

This means you are announcing that, in the case of foreign citizens, the information that is provided by other countries and that we can use will only be used here “for the purpose of protecting national security or public safety or for the purpose of defence.”

I could accept this amendment. However, we don't have the same guarantee that the other countries will do the same thing with the information we provide them. If I interpret this amendment correctly—if I don't, you will tell me—this is what a federal institution here would do with the information provided by a foreign country.

It is said that it will only be used “for the purpose of protecting national security or public safety or for the purpose of defence.” We can agree on this.

Our problem is with the information we provide, that which is listed in schedule 2 and which we agree to obtain and provide to those who will request it. We have no guarantee that the countries that will use it will not do so for other purposes than those stated in our legislation.

[English]

Mr. William Elliott: In reply I'd make a couple of observations.

First of all, just to clarify it, the requirement to provide information would be a requirement on the carriers, as opposed to the government.

With respect to the uses to which information could be put, I think that would be something the Governor in Council would consider in determining which countries and what information to authorize by regulation.

As I've indicated, the American legislation does talk about the purposes for which information is to be furnished and does provide some limitations as to with whom and for what purposes information can be shared.

[Translation]

Mr. Mario Laframboise: However, in the American legislation, i.e. in your draft regulation, what is clear is schedule 1. That's clear. The American legislation requires this information, and in schedule 2, it is you who add information that could be required.

According to my reading of the American legislation, schedule 1 contains what they require first. It is then added: “and other information deemed useful by authorities.” But in schedule 2, it is you who decide what information could be deemed useful.

[English]

The Chair: That's your last question, Mario, thanks.

Mr. William Elliott: Shall I respond, Mr. Chairman?

The Chair: Yes.

Mr. William Elliott: Yes, the American legislation lists information, and then it goes on to talk about passenger name records and indicates that carriers shall make passenger name record information available to the customs service upon request. Further on it provides that upon request, information provided to the undersecretary or to the customs service under this subsection may be shared with other federal agencies for the purpose of protecting national security.

• 1125

What's in schedule 2 in the outline of draft regulation is the kind of information that would be covered under the American legislation, where it refers to passenger name records.

[Translation]

The Chair: Mr. Harvey.

Mr. André Harvey: I thank our witnesses for tabling the amendment and draft regulation, given the concern about the disclosure of personal information. But for the purpose of national security, public safety, and for the purpose of defence, is the amendment directly linked with schedule 2? I would like to have confirmation that my perception is correct. The basic information that is generally shared and for which everybody must have the authorization... I believe this is what needs to be clarified. It is on the basis of very strict considerations of national security, public safety and defence that schedule 2 will be activated and that additional information will be transmitted for reasons that are really extremely...

[English]

Mr. William Elliott: Yes, the information in schedule 2 would certainly be subject to that restriction if the amendment and the bill were adopted, but that would also be true of the information in schedule 1.

The proposed amendment comes in large part as a result of discussions that have taken place with the Privacy Commissioner. I think the Privacy Commissioner, who I understand you may hear from directly later today, raised concerns about the provision of information, pursuant to the proposed legislation, to a foreign state being used as a back door for getting information into Canadian authorities' hands.

He raised concerns about the propriety of that. The proposed amendment is intended to address those concerns, and provide that information not be unreasonably used by the Canadian government or institutions of the government for purposes far beyond which it was originally intended.

[Translation]

Mr. André Harvey: Schedule 1 is the main tool currently used for sharing usual information. In my mind, the details regarding schedule 2 which raise some concern... Schedule 2 is an additional emergency measure for a very serious problem relating to national security, public safety, and defence issues. All the information contained in schedule 2—I'm trying to understand the amendment in relation with the two schedules—will need to result from a specific request. The general information automatically provided to everybody will be that of schedule 1. Schedule 2 will be activated when the three major considerations raised by the amendment will be present. Do I get it right?

[English]

Mr. William Elliott: Not quite, Mr. Chairman. The type of information in schedule 1 is the kind of information we all, I'm sure, have provided when entering a foreign country. It's basic data asked by customs, for example, on entering the United States.

The American legislation provides that other information—the kind of information in schedule 2—can be requested. As a matter of practice, it would be requested where there were circumstances, either based on something in relation to the first set of information or otherwise, that caused, in the case of the United States, authorities to believe there was a need for further inquiries.

• 1130

The proposed amendment deals with all information set out in schedule 1, including the name, date of birth, etc., that would be provided to a foreign jurisdiction. The restriction on the use of that information with regard to Canadian authorities applies to all information that would be provided by carriers about passengers or crew.

[Translation]

Mr. Mario Laframboise: Mr. Chairman, I have a question of privilege.

[English]

The Chair: Yes. Do it quickly.

[Translation]

Mr. Mario Laframboise: Could you table it? You say that schedule 2 is derived from American legislation. You told us earlier that the Americans had requirements such as those contained in schedule 2. Could you table the American laws that would have the same requirements as those found in schedule 2?

[English]

Mr. William Elliott: If the committee does not have a copy of the American legislation, we'd be happy to provide that.

I would say that in reference to our schedule 2, the American legislation talks about passenger name records. Schedule 2 sets out a list of things that, as I understand it, are in passenger name records, which currently are maintained by air carriers, including Canadian air carriers.

The Chair: You could provide that to the clerk. I think that some of us who went the United States have that information in a thick file. If you were to separate that particular section, it might be beneficial.

I'll now go to Bev Desjarlais from the NDP.

Mrs. Bev Desjarlais: You mentioned a number of times that it's generally information that's contained in the reservation systems. But what we've heard from previous witnesses is that charter companies don't necessarily have that information in their reservation systems. So has there been some consideration as to how these companies would provide that information?

Mr. William Elliott: From our perspective, the intent of the bill is an enabling provision to allow carriers to provide information. The bill doesn't address how it is they're going to gather that information. As you've heard from a previous witness, some carriers have the sorts of systems that ask for and maintain this information and some don't. The proposed amendment talks about any information that is in its control relating to persons on board or expected to be on board the aircraft.

Mrs. Bev Desjarlais: It's any information that's within its control. There's no stipulation that this information will have to be given. Would the fact that the carriers have to get this information come about by regulations afterwards?

Mr. William Elliott: Our proposal with regard to both the legislation and regulations is permissive. I think both the bill and the proposed regulations use the word “may”. So we're not requiring carriers to obtain this information and to provide it in this context. We're simply proposing that the legislative impediment to them doing so be removed for these purposes in these circumstances.

Mrs. Bev Desjarlais: So they don't necessarily have to right now, but they can get it if they're told they have to get it. They're not necessarily getting the information right now and they're not necessarily being required to have the information. However, should the government of the U.S. or Canada request that they provide this information, this legislation is going to enable them to get that information and pass it on.

Mr. William Elliott: Yes, except for one point of clarification. The bill before you only talks about the provision of information to a foreign jurisdiction, not to an institution of the Government of Canada, at least not directly.

Mrs. Bev Desjarlais: So the information that would be received here cannot—

Mr. William Elliott: Well, it wouldn't be received here.

Mrs. Bev Desjarlais: That's my point. Are you saying that information could not be given to the institutions in Canada?

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Mr. William Elliott: It couldn't be given directly, pursuant to the provisions in the bill, and the proposed amendment would put limitations on a Canadian government institution getting that information second-hand from a foreign authority.

Mrs. Bev Desjarlais: Could a foreign authority request this information even if the passengers on that plane weren't going to that country? You have a passenger list, and you're going to Los Angeles. Could another foreign state request that information?

Mr. William Elliott: In order for them to have any jurisdiction over an aircraft or an operator, the operation would have to be into that foreign state.

Mrs. Bev Desjarlais: Is that stipulated somewhere?

Mr. John A. Read (Director General, Transportation of Dangerous Goods, Transport Canada): I was just going to point out that in order for the information to be passed to the foreign state, first it has to be required by a law of that foreign state, and secondly, it has to be approved under our regulations to provide to that foreign state the information they require by their law.

Mrs. Bev Desjarlais: If someone were flying to Los Angeles, could France or another foreign state request the travel information for that passenger? Could you approve it through the regulation? It might seem far-fetched, but I'm curious as to whether or not it could happen. Within this legislation there seems to be no stipulation as to how or why a foreign carrier would request that information. It doesn't say because you're flying into that country or over that country. It just says that you give it to a foreign state.

Mr. John Read: The bill says that information can be provided to a foreign state if it is required under their law. A law that says information on a plane flying into the U.S. must be provided to me in France is not a law that is valid in the United States. It's not a French law.

Mrs. Bev Desjarlais: Are there foreign states that could put that in law? Could Iraq, for instance, put it in law that they must get the information for everybody on a flight that might at some point fly into Iraq?

Mr. John Read: First, Iraq would have to be under the regulations. I don't think it is that serious a problem, but we could fix it in the regulation by saying on entry into the United States or for flights into the United States, and carry on from that point.

Mrs. Bev Desjarlais: Could you not stipulate within the legislation that it has to be specifically within a certain foreign state that the carrier is going into or flying over?

Mr. John Read: I think that's implied, but I'll pass it back to—

A voice: There has to be just cause.

Mrs. Bev Desjarlais: There has to be a reason for having it.

A voice: I think it would be possible to provide for that in legislation.

Mrs. Bev Desjarlais: My concern was that there may be people from some countries who don't necessarily want that information or any information related to them going to another country for reasons of their own safety.

Thank you.

The Chair: Mr. Szabo.

Mr. Paul Szabo: What's the definition of “competent authority”? Is that in other legislation? Is it a defined term somewhere in government legislation?

Mr. John Read: In most international agreements there is at least one department in a government that is named as the competent authority. Those names would be deposed with the International Civil Aviation Organization in Montreal. So if you wanted to know who is the competent authority for aeronautics in a particular country, you could go to Montreal to find the list of who the competent authorities are.

Mr. Paul Szabo: Are you not concerned that we should say that or refer to it as defined by international aviation law?

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Mr. John Read: We obviously didn't think it was necessary, or we would have thought ahead of time. It is a common term used in transportation.

There are “competent authorities” for radioactive materials, for marine, for air. They are formally listed at the international organizations—the International Maritime Organization, the International Civil Aviation Organization, the International Atomic Energy Agency, to name a few of them.

I don't think there is room here for confusion. It's a term of the trade. It's a clear term used in transportation.

Mr. Paul Szabo: There's only one per country?

Mr. John Read: There could be more than one. It's normally one, but I know for radioactive materials, for example, which is part of my normal field, some countries will have two or three competent authorities. They'll have a competent authority for air movements of radioactive materials and a competent authority for marine movements. For air, it's normally one department.

Mr. Paul Szabo: The legislation seems to imply it's singular for a foreign state.

Mr. John Read: I think the singular can be read as the plural in that context, but in any case it's “provide to a competent authority”.

Mr. Paul Szabo: Okay.

Mr. Laframboise was earlier somewhat concerned about credit card information. I don't see anything here about credit card information being authorized to be released if it happens to exist. Is that true?

Mr. John Read: Just to clarify, on the passenger name record, which the Americans can request on a case-by-case basis—as Mr. Elliott pointed out, the schedule 1 was information that will automatically be passed, and the schedule 2 is what can be requested on a case-by-case basis. We have asked the United States to clarify for us what they intend to have listed as the dated items in the passenger name record. We were hoping we would have this for you this morning, but they have not been able to give it to us in exact detail. That's why when we mentioned the regulations as being “draft”, they're draft until we can get hopefully an international standard on what is a passenger name record.

Mr. Paul Szabo: In schedule 2 there's no requirement for credit card information, as it exists.

Mr. John Read: There is at section 25, “the manner in which the ticket was purchased”, but that's not a credit card rating—

Mr. Paul Szabo: It says credit card, cash, or whatever; it doesn't say credit card number.

Mr. John Read: Correct.

Mr. Paul Szabo: Now, to the extent that an airline has a more comprehensive database, with other information, does that mean that to the extent it exists the entire record of a passenger could be requested?

Mr. William Elliott: We cannot control what a foreign state requests; you can only provide rules with respect to what can be provided by persons subject to Canadian laws. Only information that is authorized by the legislation and regulations could legally be provided.

Mr. Paul Szabo: So we can control it. But you just said we can't control it.

Mr. William Elliott: No, with respect, what I said or meant to say was that the Parliament of Canada cannot control what it is a foreign state requests.

Mr. Paul Szabo: Sure, they can request the weight of the person, but we don't have to give it. It has to be reasonable with regard to security requirements. If it's nonsense information, we can control—because if it's not on the schedule, they ain't getting it. If you want to comply with a foreign legislation, we will have to amend our schedules to incorporate additional information that a foreign jurisdiction required.

Mr. William Elliott: I am not at all disagreeing with any of that. Certainly the whole purpose of the legislation—

Mr. Paul Szabo: Let's move on.

Are there penalties for non-compliance, either by an airline or by a passenger?

Mr. John Read: Again, as Mr. Elliott explained earlier, this is permissive. It allows a carrier... Currently, the carrier would not be enabled to provide that information while the carrier is in Canada, under PIPEDA. This provision is taking that restriction away, so it allows the carrier to provide the information to the United States. If the carrier does not want to provide the information to the United States, that is not subject to any action in Canada.

Mr. Paul Szabo: They would simply say “You're not coming into our air space.”

Mr. John Read: The U.S. may say “We will search every person who comes off your plane”, etc., and that's how it goes.

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Mr. Paul Szabo: Passengers. If a passenger refuses to provide information to an air carrier, or if the air carrier doesn't have the information, and they refuse to subsequently provide information required by a foreign state, are there penalties or consequences to that passenger?

Mr. William Elliot: Not under Canadian law.

Mr. Paul Szabo: So a passenger who didn't want their address or phone number to be known and circulated could simply give 123 Sesame Street, phone number 123-4567.

Mr. William Elliott: We're not proposing any requirement under this legislation for a passenger to provide any information to anybody. I think that whether or not a passenger chooses to provide information and whether or not a carrier chooses to provide information would likely have an impact on whether the passenger or the carrier would be welcomed or granted entry to a foreign state and how that passenger or carrier would be treated on arrival.

Mr. Paul Szabo: But the question was that if I provided proxy or dummy information just to fill out the blanks, there is presently no penalty for providing false information.

Mr. William Elliott: The provision of false information that I think might give rise to a penalty is the provision of false information to a foreign authority, and there may well be penalties for that under the law of the foreign jurisdiction.

Mr. Paul Szabo: But the information was provided to an air carrier, not to the foreign authority.

Mr. William Elliott: I agree.

Mr. Paul Szabo: Profiling seems to be a very important concept in terms of long-term security and safety for any nation right now, and a lot of this information I would characterize as being profiling-type data. I'm somewhat astounded that to the extent this information is being gathered and is being authorized to be transferred to a foreign jurisdiction, a competent authority, Canada would not have this information as well to assist its activities with regard to safety and security purposes.

Mr. William Elliott: I believe there are provisions in that other bill before the House, Bill C-42, that deal with the provision of information to Canadian authorities.

Mr. Paul Szabo: Would it be possible for us to add Canada to schedule 3?

Mr. William Elliott: Not without an amendment to the legislation, because the legislation simply talks about “foreign states”.

Mr. Paul Szabo: We're going to get around this one. It would be absurd that Canada would not have and be able to speak—

Mr. Mario Laframboise: For Quebec, this is one point—

Mr. Paul Szabo: No, we're not going there.

It would be absurd to think that Canada would not be able to speak to foreign jurisdictions, particularly when they're going to hopefully negotiate collaboration, as I think was announced with Rumsfeld yesterday, about fingerprinting information and all the other stuff from the U.S. being shared—FBI data. This is where we're going, and I would think that the ability simply to cross-reference names with other databases on a comprehensive basis, on a real-time basis, is probably one of the most significant security techniques or strategies that one could use. So are you telling me you are satisfied that if, as, and when Bill C-42 becomes law, we will have the ability to have all of this information, including the information from the airlines?

Mr. William Elliott: When you talk about all information—

Mr. Paul Szabo: Anything that a foreign jurisdiction, a competent foreign authority, is going to get under this legislation. Would Canada ultimately one way or another have access to the same detail completely?

Mr. William Elliott: Not for any purpose.

Mr. Paul Szabo: Say if for security and safety reasons I make a request.

Mr. William Elliott: Yes. Pursuant to the proposed amendment, a Canadian government institution would be able to collect and use information, the information that had been provided to a foreign jurisdiction, if it was collected and used only for protecting national security or public safety, or for the purposes of defence.

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Mr. Paul Szabo: So the answer is yes?

Ms. Val Meredith: The amendment.

Mr. Paul Szabo: Yes. That's the purpose, but this act authorizes the information to be given only to a competent authority of a foreign state.

Mr. William Elliott: The bill before you only deals with the provision of information to a foreign state. The proposed amendment deals with the provision of that information, in turn, by the foreign state to a Canadian government institution.

Mr. Paul Szabo: But it would have to come back. We wouldn't be able to get it directly.

Mr. William Elliott: Not under this legislation, no.

Mr. Paul Szabo: Are you aware of anything else that was included in the schedules and that was dropped?

Mr. William Elliott: The short answer is no. This is the first draft of the regulation that was prepared.

Mr. Paul Szabo: Was there other information that was discussed for the inclusion in schedule 2? Were there any specific items of note?

Mr. William Elliott: Not to my knowledge.

Mr. Paul Szabo: Why isn't schedule 2 referenced now? The bill references schedule 1.

Mr. William Elliott: The bill references schedule 1 of the Personal Information Protection and Electronic Documents Act.

Mr. Paul Szabo: Yes.

Mr. William Elliott: There is no reference to any schedule by name in this act, other than a schedule to the Personal Information Protection and Electronic Documents Act.

Mr. Paul Szabo: I don't know. It says set out in schedule 1 to the act relating to the disclosure of information. It's a different schedule, a different schedule 1.

This says that the Governor in Council may make regulations. I'm trying to understand what's been handed to us. Schedule 1 and schedule 2 both have the same thing: “may be provided to a foreign state if it's set out in schedule 3”. So I'm trying to be clear why there are two schedules, rather than one.

Mr. William Elliott: Two schedules in the draft regulation? There are three schedules in the draft regulation.

Mr. Paul Szabo: I mean two schedules relating to disclosure points, as opposed to the countries to whom the information could be disclosed.

Mr. William Elliott: Schedule 1 sets out in the regulation the kind of information that would be provided as a matter of course; schedule 2 talks about the kind of information that could be provided if it were more specifically requested; and schedule 3 sets out the countries pursuant to which information could be provided.

Mr. Paul Szabo: I had—

Ms. Val Meredith: You're out of time.

Mr. Paul Szabo: Yes.

The Chair: You can come back to it later on.

Ms. Val Meredith: I'd like to follow up on something Mr. Szabo was alluding to.

Under this legislation, the Canadian government and agencies are not allowed to access the information unless it's for national security, public safety, or for purposes of defence. Are there any other acts in Canada that would allow this information to go to government agencies, government departments?

Ms. Sherill Besser (Senior Counsel, Legal Services, Transport Canada): Bill C-42, which is right now in front of the House, contains provisions that relate to the information.

Ms. Val Meredith: No, you've misunderstood me. I'm not talking about changes to the Immigration Act that allow Canada to get this kind of information about people flying into Canada. I'm asking if there is any existing legislation that allows any department of the Canadian government to access the information from these personal travel notes or whatever it's called, the carrier list. I'm wondering specifically about Revenue Canada. For example, under some legislation an individual's passport is removed or they are not allowed to travel. How do they do that?

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Ms. Sherill Besser: Under CSIS legislation there is provision of information subject to very limited circumstances and subject to warrants, I believe.

Ms. Val Meredith: What about Revenue Canada? Do they have access to—

Ms. Sherill Besser: Revenue Canada has a system for which they have quite detailed regulations on the provision of information for customs purposes.

Ms. Val Meredith: So conceivably the Canada Customs and Revenue Agency or Revenue Canada or CSIS would have access to this kind of information now under other pieces of legislation.

Ms. Sherill Besser: As well, the pre-clearance act, which is not yet enforced, provides for certain information to be given.

Ms. Val Meredith: So the information can be used by Canadian authorities now, without this piece of legislation, if requested.

Ms. Sherill Besser: Subject to the scope of the particular acts, yes.

Ms. Val Meredith: You mentioned something about how right now this piece of legislation is just for the United States, which is mentioned in schedule 3, and that regulations will consider listing countries that could be included—or, I took it from that, excluded. Can you give us some idea of who Canada would select to include in schedule 3 and those countries Canada would exclude from sharing information with? How do you determine who gets in schedule 3 and who doesn't?

Mr. William Elliott: To be clear, the proposed legislation is not legislation that makes any reference to the United States of America or any other foreign state. So the legislation is, again, enabling legislation to provide the authority for regulations that would specify foreign states.

Ms. Val Meredith: You might just take the regulation in schedule 3.

Mr. William Elliott: The only foreign state that we are immediately planning to make reference to in regulations is the United States of America. When the Governor in Council decides to make regulations and is considering which foreign state and which information to be provided, I think it would be reasonable and necessary for the Governor in Council to make some assessment as to the uses to which the foreign state might put the information and whether or not they feel that the foreign state has in place the necessary regime and safeguards with respect to that information.

Ms. Val Meredith: So it will be the minister who decides whether or not the foreign state requesting to transfer this information has a legitimate cause, has legitimate concern, and will assess whether or not they have the ability to monitor and to secure that information.

Mr. William Elliott: It would be the Governor in Council on the recommendation of the Minister of Transport.

Ms. Val Meredith: The Governor in Council will deciding who does and who does not.

Do Canadian air carriers have to comply with Canadian law or U.S. law when flying over U.S. airspace or into U.S. airspace?

Mr. William Elliott: My colleague from the justice department might be able to give more information, but I think in general terms people in U.S. airspace have to comply with U.S. law.

Ms. Sherill Besser: In particular, the Aeronautics Act requires those operating under a Canadian aviation document to comply with the aeronautic laws of the country in which they're operating. So Canadian air carriers would have to comply with American law while in American airspace.

Ms. Val Meredith: So if a Canadian air carrier has to comply with the new regulations or the new law that was passed last week, in the last ten days, why do they require this legislation if they're complying under American law, if the requirement is that they're under American law?

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Mr. William Elliott: The American authorities will request this information of carriers with respect to a given flight, for example, before the flight departs Canada. In fact they will be requesting information of Canadian carriers in Canada.

Ms. Val Meredith: I don't know if you can answer this, but I assume you've given it some consideration. If Canada reciprocates and is requesting the same information under Bill C-42 so that a foreign state will be providing the same kind of information to Canada, do we have the capacity to receive that information and to make use of it in a meaningful manner? How would we receive the information, and to what purpose would it be used?

Mr. John Read: The information Transport Canada seeks or would be seeking under Bill C-42 relates to people getting on the planes. So Bill C-42 is relating to people boarding planes. The information you're talking about being parallel with the American situation is information Immigration Canada and Canada Customs would be seeking on people coming into the country.

Ms. Val Meredith: Then Bill C-42 really doesn't deal with protecting the airlines from having persons at risk getting on the plane and blowing it out of the sky. It really has to do with identifying the information of the person prior to getting on, so that they can't destroy their documentation in the bathroom on their flight over. Is this the—

Mr. John Read: I don't think that's the correct characterization.

Ms. Val Meredith: Okay.

Mr. John Read: The data is gathered in Canada. Bill C-42 is really not something I would want to discuss in great detail at the moment, but Bill C-42 will gather, and the purpose of gathering data under Bill C-42, under the first portion of it, the Aeronautics Act, is for security. It's for the protection of aircraft so they cannot be hijacked and blown out of the sky, as you put it.

In Bill C-42, it's also a repeat of the CIC legislation that enables the gathering of information on people coming into the country. It was put in Bill C-42 so it would take effect faster than—

Ms. Val Meredith: Okay, then I go back to my previous question. If the same passenger list, or the passenger information file, or whatever it's called, if that information is sent to Canadian authorities under the Aeronautics Act, to whom is it sent? Who receives that information, and do they have the capacity to deal with it in a real-time manner, so that it's going to prevent somebody from getting on that plane and blowing it out of the sky?

Mr. John Read: If we look at Bill C-42, if the legislation went through, we would require airlines to provide us at the very minimum with the basic recognition data on people we specify. And as you're familiar with, on the second part, if we believe the flight is under direct threat, we can ask for the personal name records of everyone on board the flight. Yes, in Transport Canada we are able to accept that information immediately and process it immediately and make decisions as to whether or not we would prevent the flight from taking off, whether or not we would put someone on board the flight if necessary, whatever we decided we had to do. We could also involve the appropriate law enforcement agencies if that were appropriate. But we have the ability to receive it in real time and we have the ability to make the decisions immediately.

Ms. Val Meredith: How would you make those decisions, if you are going to talk to the appropriate law enforcement agencies, if you feel there's a need? How are you going to make the decision that the people on that flight are likely to blow it out of the sky? How do you in Transport Canada make that kind of a decision when you... I have to assume that you would be talking to the law enforcement people before you made that decision, and not just if you thought there was a need. How do you make those kinds of judgments?

Mr. John Read: There's a wide range here. If we go to the very obvious case of someone who phones in very distraught because their husband has gone off with a bomb to blow up a particular flight that he's going on, we don't have to ask anybody; we know we have a problem. And we could prohibit that flight from taking off until we had the time to sort the thing out. We could do that and we could do that immediately, and we don't have to deal with a law enforcement person.

On the other hand, approaching from the point of view of a law enforcement agency, if CSIS had information in its hands that indicated there may be a threat to a particular aircraft and they had a list of names—known terrorists who were suspected of operating in North America and they had all of their aliases—they could provide that to us and ask us to go to the airline reservation systems or the air carriers to find out if any of those names match any of the passenger records. But this is Bill C-42 we're discussing.

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Ms. Val Meredith: Yes, I appreciate that. When you start talking about sharing information and giving it to a competent authority, after September 11 one has to question whether the competent authority in the Aeronautics Act should be the competent authority when you're dealing with security risks and if you want to talk about profiling passengers.

My final question is with regard to this amendment. This amendment, as I understand it, is basically saying that the Canadian government institution, Revenue Canada, cannot access this information that we are giving to a foreign state unless it's for national security, public safety. Yet in the Privacy Act there are 12 exemptions of where the information can be shared. I don't see any reference to exclude these exemptions. Does this mean that these exemptions still apply to this amendment to Bill C-44?

Ms. Sherill Besser: They're two different things. The amendment deals with information that government institutions don't have but the air carrier has, and the air carrier gives it to the competent authority. So Transport Canada would not have that information. The Privacy Act exemptions relate to exchange of information between government institutions for consistent use or for other items, such as if there's an agreement between institutions. I think they're separate fields.

Ms. Val Meredith: So you're telling us that when we start talking about a foreign state giving information to Canadian agencies or Canadian government institutions, the exemptions do not apply?

Ms. Sherill Besser: What applies in that case, if a government institution receives information from the foreign state, is they may disclose it to another federal institution for the purpose of security, public safety, or defence.

Ms. Val Meredith: Only—so the exemptions do not apply. Thank you.

The Chair: Mr. Shepherd.

Mr. Alex Shepherd: Just to clarify in my mind, this legislation is reciprocal to that of the United States. Is that right? In other words, our authorities can receive the exact same information from U.S. airlines flying into Canada. It is exactly the same.

Mr. John Read: Well, we don't know yet. There are discussions going on now to try to finalize what information would be in a passenger name record. It certainly is true that the Canadian government, under Bill C-42, in CIC and also Customs and Revenue has a need for information on people coming into the country, just like the U.S. has a need for information on people going into their country. There is an effort being made to standardize what is a passenger name record. If that were to happen and both countries then sought for people going into their countries the data that's in a passenger name record, the reciprocity you're talking about would exist.

Mr. Alex Shepherd: However, at this stage we don't know that. In other words, it's conceivable, if we pass this legislation, that the Americans will not have a reciprocal arrangement. Therefore, we would not have that access to their passenger records.

Mr. William Elliott: Well, this legislation doesn't really deal with the matter of a Canadian government institution requiring information from Americans or American carriers or the American government.

Mr. Alex Shepherd: But are we going to do this unilaterally? Are we prepared to do this unilaterally, without a reciprocal arrangement with the United States?

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Mr. William Elliott: At the moment, if I understand it, we don't have the legislative basis on which to make a reciprocal arrangement.

Mr. John Read: Just to correct that, CIC does have legislation, which has passed, that says they can collect data on passengers arriving in the country. They have not sorted out yet in the regulations what that data is. The question really would be better put to someone from Immigration or from Customs and Excise.

Mr. Alex Shepherd: But this legislation simply allows our carriers to release information to the United States. A plane takes off from Dallas, is coming into Toronto, and we want that passenger manifest list. What right does American Airlines have to release it to Canadian authorities?

Mr. William Elliott: To my knowledge, there's no legislative restriction in the United States similar to the Personal Information Protection and Electronic Documents Act that would prevent an American carrier from providing this information to the Government of Canada.

Mr. Alex Shepherd: So you believe it's not necessary that they have a reciprocal arrangement, because it's already readily available.

Mr. William Elliott: There are two separate but related things here. One is a legislative basis to require or receive information, and the other is the ability of a carrier to provide information. I certainly am not suggesting it would not be beneficial for us to have arrangements with other jurisdictions with respect to the exchange of information that might be relevant to security.

Mr. Alex Shepherd: But we do not have that assurance today.

Getting back to my example, a flight from Dallas to Toronto, do you have the right as a government agency to request the manifest list on that plane?

Mr. John Read: Let me just step back for a moment. When you travel from Canada or travel within Canada, we have a unique law in Canada, which is the Personal—

Mr. Alex Shepherd: Yes, I understand all that.

Mr. John Read: All right. So what this is doing is only removing that restriction then, which puts us on an even footing with the United States. They can then request information from aircraft arriving in the U.S. We also in Canada can request information when an aircraft arrives in Canada. Anyone going through our immigration services or our customs services is questioned. Their passports are checked. Where did you come from? Why are you here? All of these questions can be asked in Canada.

What is being sought, I understand, under the legislation for Immigration and Customs and Excise is to have that information before the plane touches down. This is what the U.S. is seeking on their side with the sections we're concerned with. They want the information before the plane arrives in the United States. Canada is going in the same direction. We are doing the same thing under our legislation, under those two departments, seeking information on passengers prior to the plane arriving in Canada.

The last point I went to was which data in which countries. There is an attempt being made to standardize that data—what goes in a passenger name record. I don't think we are short-changed at all.

Mr. Alex Shepherd: I guess maybe it's a legislative process that I'm somewhat confused by, because obviously we aren't being asked to pass this legislation today. We don't know that the Americans are necessarily going to... When we go to request that information, you're saying if it has landed in Canada we all know that, because they have to abide by Canadian law. But we have no assurance that the manifest list we want from that Dallas flight is going to be provided an hour before departure.

Mr. William Elliott: To my understanding, there is no prohibition under American law that would prevent American carriers or other carriers flying into Canada from providing us with that information. So there's no need for them to pass legislation to allow for that, because they have no legislation that prohibits it.

Mr. Alex Shepherd: Do we ask for it now?

Mr. John Read: I understand we are in the process of establishing the regime to do that, and that's the Immigration and the Customs and Excise process, which is undergoing now. CIC does have already, in the recently passed legislation, the ability to require that information. What they have not done yet is specify the data elements in the regulations.

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So the authority does exist in Canadian law to request this information prior to the plane landing in Canada, which is the same wording used in the American legislation—prior to landing in the United States.

Mr. Alex Shepherd: Just to reiterate what Ms. Meredith was saying... A guy is getting on the plane in Dallas with one bag and you say you have the right to know how many bags he has. He gets on the plane. Do we have the capacity to have somebody actually sit down and look at the manifest list? Are we looking for exceptions?

How does it work in reality? Administratively you're going to get all this information if you start requesting manifest lists for every plane departing from the United States and landing in Canada. What are you going to do with all the information?

Mr. John Read: I would have to defer that question to CIC and customs because I do not know how they run internally with their data. I just don't know how they handle their data internally, so the question really should be put to Immigration Canada and Customs and Excise. Those are the people who are seeking that data.

Mr. Alex Shepherd: That sort of flies in the face of what we were originally concerned about, which is the security. It would be more like CSIS would be concerned about some of those things rather than immigration and customs.

The Chair: You're running out of time here. Do you have another quick question?

Mr. Alex Shepherd: No, sir.

The Chair: Mario.

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman.

I just want us to be clear about schedule 2. Schedule 1, Mr. Elliott, is almost textually identical to section 115 of the American legislation; that's all right. You said earlier that schedule 2 is consistent with American laws. I would like to know if there is an American law with the same requirements as what is found in the list of 29 items of schedule 2 and which is consistent with this list.

[English]

Mr. William Elliott: Thank you, Mr. Chairman.

The American legislation subsection 115(2) talks about information: “A passenger and crew manifest for a flight required under paragraph (1) shall contain the following information”, and then it runs (A) through (F), which includes the information listed on schedule 1 of the draft regulation. Subsection 115(3) talks about passenger name records: “The carriers shall make passenger name record information available to the Customs Service upon request”. So there is no list of what's in the passenger name records in the U.S. legislation.

The 29 items listed in schedule 2 are a list of what the U.S. has asked for in relation to pre-clearance. As you may know, there are arrangements with the Americans with respect to pre-clearance facilities for transborder traffic at major Canadian airports. It is based on that list of information that this draft regulation was prepared.

[Translation]

Mr. Mario Laframboise: So the 29-item list could somewhat vary. Could it vary?

[English]

Mr. William Elliott: That's correct.

[Translation]

Mr. Mario Laframboise: Mr. Szabo made a good remark. I appreciate that the credit card number is not on this list. It includes the “payment method” but not the credit card number, and I appreciate this. However, in the application of the bill as presented to us, you said earlier, regarding the draft regulation... The House Leader promised us, even Friday, a practically complete draft regulation. You told us you did not have enough information from the U.S. to be able to draft the regulation.

[English]

Mr. William Elliott: First of all, my understanding is that the document the minister referred to in the House on Friday is the document that's before you.

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Secondly, with respect to the current state of affairs with respect to a regulation, I think it is fair to say that what's before you is not necessarily exactly how a regulation may ultimately appear. What's ultimately in the regulation would depend to some extent on what it is the Americans are requesting, and we're still in the process of discussing with them what their requests are.

As Mr. Read has indicated, there is not at the moment a universal standard or common understanding with respect to what is and what is not in a passenger name record.

[Translation]

Mr. Mario Laframboise: Yes, and that's what brings me to my next question. We were told earlier, among other things, that charter companies such as Air Transat and others did not have certain elements of information on PNRs because it is the travel agencies, among others, that have them.

Have you analysed how much it could cost certain carriers to meet certain requirements? Has this ever been analysed?

[English]

Mr. William Elliott: I think the short answer to your question is no, we have not done that analysis. Again, I want to clarify that we are not requiring by this legislation that carriers do anything. We are simply proposing to permit carriers to do something.

[Translation]

Mr. Mario Laframboise: However, we are told that if they do not do it, these carriers will no longer have the right to go to the United States or other countries. This is in fact what you are telling me. You don't require anything, but if they do not do it, they will loose business. They might not be able to do business in the United States, among other places. This is what it meant, isn't it?

[English]

Mr. William Elliott: Mr. Chairman, I certainly can't agree that we're putting pressure on carriers. I would say that if anything, carriers are putting pressure on us and on the Government of Canada to take steps to allow them to comply with the requests of the Americans, which they and we believe to be reasonable. The reason carriers want us to do that is so their flights in the United States will not be interrupted.

[Translation]

Mr. Mario Laframboise: My last question is about the 29 items of the schedule 2 list for which you tell us there are no American requirements yet. There is a list of passenger name records. There are no known requirements apart from that of providing certain elements of information. You enumerated the elements of information that could, according to you, be required.

Of course, if some of these items irritate us, notably those I mentioned earlier, 23, 27, etc., the question will have to be asked to the person responsible for rights... The next witness, Mr. chairman, will be the Privacy Commissioner, who may be able to inform us regarding whether certain items are relevant or not. What do you think?

[English]

Mr. William Elliott: I think the Privacy Commissioner can certainly provide you with very useful information and views with respect to privacy concerns and appropriate safeguards for the use of information. I'm not sure—but I guess you'll see when you see the Privacy Commissioner—how helpful he can be concerning the appropriate security uses of information.

[Translation]

Mr. Mario Laframboise: Yes but you probably presented your draft regulation to the Privacy Commissioner. Did you present it to him?

[English]

Mr. William Elliott: I'm not certain that the regulations in this form have been provided to the Privacy Commissioner, but certainly we would have no hesitation in doing so. Our discussions with the Privacy Commissioner last week really concentrated on the proposed legislation.

The Chair: Thank you.

Marcel.

[Translation]

Mr. Marcel Proulx (Hull—Aylmer, Lib.): I have a few quick questions to ask, simply to help me understand.

The bill talks of “an aircraft departing from Canada.” So whether it is a Canadian, Japanese or American aircraft, this applies to everybody, doesn't it?

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[English]

Mr. William Elliott: Yes, that's correct. As indicated earlier—well, I guess the flip side was indicated earlier—air carriers operating in Canada must abide by Canadian law.

[Translation]

Mr. Marcel Proulx: So an aircraft operating abroad or coming from another place, for example, a Canadian plane leaving Cuba, must, I suppose, abide by the laws of that country, the laws of Cuba. If this is the case, why does it talk here of “a Canadian aircraft departing from a foreign state?” When an aircraft is in a foreign state, is it not the legislation of that state that applies? Then there is no need for an exception to the Privacy Act, which must only apply in Canada.

[English]

That's basically what you were referring to, Val, a little while ago.

Ms. Sherill Besser: The first part of that proposed clause refers to an operator of an aircraft departing from Canada, and that would include Canadian aircraft departing from Canada as well.

Mr. Marcel Proulx: It would include?

Ms. Sherill Besser: Yes.

Mr. Marcel Proulx: Okay, no problem. But what about the opposite, a Canadian aircraft departing from any place outside Canada? When they're outside Canada, are they still subject to the Personal Information Protection and Electronic Documents Act? If an Air Canada plane is in Cuba...

Mr. John Read: Yes. We can have several situations. You can have Cuba silent on whether you provide data or not. The advice I'm given is that PIPEDA would apply to the Canadian carrier in that instance.

Mr. Marcel Proulx: While it's in Cuba?

Mr. John Read: While in Cuba. Normally, an aircraft has to follow the laws of the home state, plus anything in the state it's in, if it's in conflict.

Mr. Marcel Proulx: I see.

Mr. John Read: So the aircraft could be in Cuba, subject to PIPEDA, and if they're flying to Florida, what we've done is given them the ability to provide the data, which they don't have unless Cuba gave it to them. It's not necessarily true that Cuba would have given it to them. We had to cover the case in which the aircraft is somewhere else and needs that ability.

Mr. Marcel Proulx: Canadian aircraft, of course.

Mr. John Read: Canadian aircraft, yes.

Mr. Marcel Proulx: Okay.

I just want to come back on a question you answered. I don't think I understood the answer properly when Mr. Szabo was asking it.

If I go the airport and I'm flying from Ottawa to Washington, I don't need a passport, I don't need a visa. I go to the counter and I buy a ticket. Let's say I buy it with cash. Is there anything, not only in this one but in other legislation, that forces me to produce a piece of identification, an ID of some sort?

The second part of my question has to do with when they ask me who I am. I can give them whatever name I want to give them, I can give them any phone number I want, or I can say to them, “I'm sorry, my phone number is unlisted”.

Mr. William Elliott: We have required air carriers to verify the identification of passengers before—

Mr. Marcel Proulx: Yes, but is there legislation, sir, that forces me, as a consumer, to provide my proper or legal identification to the airlines?

Mr. William Elliott: No, I don't believe so, but there is a requirement that the carrier not allow you to board a transborder flight unless they have been provided with identification by you.

Mr. Marcel Proulx: There is legislation to that effect?

Mr. William Elliott: Yes. That's not in legislation, it's a... Is it a regulation or a measure?

Mr. Hal Whiteman (Director General, Security and Emergency Preparedness, Transport Canada): It's a measure.

Mr. William Elliott: It's a security measure, pursuant to the Aeronautics Act. You must provide a photo ID.

Mr. Marcel Proulx: So I must provide identification upon request by the airline?

Mr. William Elliott: That's correct. And we require the airline to ask you for that.

Mr. Marcel Proulx: Yes, but if I don't produce it to the airline—

Mr. William Elliott: Then they can't let you board.

Mr. Marcel Proulx: —they have the right to not let me on?

Mr. William Elliott: That's correct.

Mr. Marcel Proulx: I have a final little question, quickly, and this is very technical.

In the English version you're saying “an operator of an aircraft”. In the French version you're saying “l'utilisateur d'un aéronef”. I assume this was prepared originally in English and then translated into French. If this had been prepared in French and translated into English, I don't think we would see the word “operator”. We would see the word “user”.

Now it's up to you to interpret.

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Ms. Sherill Besser: When legislation is drafted, it's drafted simultaneously in both official languages. For each proposed bill, there is a French and an English drafter. The reason the word utilisateur is used in the French version is to be consistent with the existing provisions of the Aeronautics Act that refer to that term.

Mr. Marcel Proulx: Well, the original term was wrong.

Ms. Sherill Besser: That should be fixed at some point, but to be consistent, we kept that term.

[Translation]

Mr. Marcel Proulx: Do you agree with me?

Mr. Mario Laframboise: Yes.

[English]

Mr. Marcel Proulx: Maybe we should ask our translators, although it doesn't have any legal standing. Is there another word for “operator”, other than utilisateur? Exploitant?

Ms. Sherill Besser: There's also a distinction. The exploitant may not be the utilisateur in a particular case. Where an air carrier leases an aircraft, for example, you have the exploitant and you could have a utilisateur. I think the Aeronautics Act was trying also to make that distinction in French. I would hesitate to change it in one provision while that distinction is made elsewhere in the act.

Mr. Marcel Proulx: I appreciate that. I'm just raising a red flag here, because the term utilisateur does not mean “operator”.

Mr. William Elliott: Mr. Chairman, prior to September 11, we had begun a comprehensive review of the Aeronautics Act. A number of the provisions that we identified for amendment are now in Bill C-42, but there still is a requirement, in our view, for a more comprehensive amendment or package of amendments to the Aeronautics Act. My understanding is that the minister does intend to bring forward in the new year a comprehensive package of amendments to the Aeronautics Act. Now that the honourable member has brought this to our attention, we will certainly examine that issue and the use of those words in the Aeronautics Act.

The Chair: Okay, Marcel?

Mr. Marcel Proulx: Yes, I suppose so. But still, utilisateur does not mean “operator”. I want to be on record.

Mr. Paul Szabo: You are.

Mr. Marcel Proulx: I want to make sure that I'm on again, Paul. It doesn't have the same meaning.

Thank you.

The Chair: Val.

Ms. Val Meredith: I would like to go back to something Mr. Szabo raised, which is that this information will be released to a competent authority. It's been explained that the competent authority is that which has been defined by the international aeronautics organization.

Now, what happens if the information goes to that competent authority, which in turn gives it to other people who may not be listed as the competent authority? Does the liability of the airlines not exist any more? If the competent authority is the FAA and the FAA gives that information to the FBI and somebody has a problem with that information going to the FBI, can they come back on the airlines because the information was not given to the competent authority but was given to the FBI?

Mr. William Elliott: I think the short answer is no.

Ms. Val Meredith: So you're confident that the airline could not be held responsible if a third party did get hold of that information outside of the competent authority.

Mr. William Elliott: I should let legal counsel answer that question.

Ms. Sherill Besser: I'm confident as well that the answer is no.

Ms. Val Meredith: Okay. Who would be responsible?

Mr. John Read: We have given the airline permission to provide this to the competent authority. That is what we have done, and they would do that.

Now, what happens in the other country? We know what will happen in the United States because they have provision (5), which says they will share it among certain people. Your question is not hypothetical. It really will happen. The information will go to the competent authority. The competent authority, under the laws of that state, being the United States, will share it with other authorities. That's already known and that's accepted.

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Ms. Val Meredith: So the airline is being allowed to give this information to the competent authority. That's all you're doing, and I appreciate that. But once the airline has given that to the competent authority, at that point their liability ends.

Mr. John Read: Which liability do you have in mind?

Ms. Val Meredith: Well, let's say somebody objects to the fact that the FBI has their name and that their name was given to the FBI by the airlines. Or let's say the passenger name record was given to somebody outside the FBI, and they go back to the airline and say, “I didn't want that information to go to the FBI,” and the airline says, “We did not send it to the FBI. We sent it to the competent authority in the United States.”

Mr. John Read: Yes.

Ms. Val Meredith: Their liability for that name having been given to the FBI is not there.

Mr. John Read: Yes.

Ms. Val Meredith: Okay. Thank you.

The Chair: Are there any further questions of our witnesses?

Paul.

Mr. Paul Szabo: I want to clarify again. If a Canadian flight is scheduled to go Mexico, can the U.S. require the manifest and all other information, if it's a direct flight?

Mr. John Read: First off, they don't have to give us permission to fly over the United States if we're going to Mexico, and if they want to allow us to fly to Mexico, they may put conditions on it. That did happen after September 11. We had charter flights going from Canada to Mexico, and the United States would not allow them over their airspace unless we imposed certain conditions on the charter airlines. So it's entirely possible that the United States could request this information as a condition to giving them overflight. That's beyond our reach.

Your question is, hypothetically, could the Americans ask for data even if a plane were flying over the United States? I'm sure they could request it, which is the answer to your question.

Mr. William Elliott: But the legislation that I referred to in my opening remarks deals with flights and foreign air transportation to the United States. So the American legislative authority to ask for this legislation deals with flights to the United States.

Mr. Paul Szabo: Yes, but as you also explained, schedule 3 can list other countries as Order in Council would prescribe. We have to assume that this is going to be an international option and that schedule 3 may start to fill up, and I suspect it will.

The government is not requiring the airlines to do anything. We're giving them the authority to do it, because it's currently prohibited, so they're at their own peril. If you don't want to give it, you don't fly. It's an interesting situation.

Is there or should there be some involvement in terms of the federal Government of Canada ensuring that we're not putting the airlines industry into a position where they will be coerced or levered or somehow forced to do certain things that are problematic for them?

Mr. William Elliott: The proposed legislative and regulatory regime can provide some comfort or protection to carriers, because pursuant to Canadian law, they could only provide the kind of information that has been approved by regulation, to foreign states that have been approved by regulation. They could perhaps indicate to a foreign state that's not approved, “Well, we'd like to help you out, but our government won't let us.”

Mr. Paul Szabo: If the request leads to their requirement to gather information beyond the normal operating practice, and if it requires that they incur ongoing operating costs to do that, as well as new changes or updates to software or hardware or whatever, are the airlines going to be held harmless in terms of incremental costs for providing this pursuant to this legislation?

Mr. William Elliott: No.

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Mr. Paul Szabo: Is it our intent, once this legislation is enacted, to ask for a reciprocal arrangement with the U.S.?

Mr. John Read: Again, the U.S. is seeking it, as you can see in the bill, from the Commissioner of Customs. This is a customs and immigration issue in the United States. If we're going to seek the same, it would be a customs and immigration issue, and we can't speak for those two departments.

Mr. Paul Szabo: Well, I'm talking about the Government of Canada.

Mr. John Read: But I can tell you that Immigration Canada does have legislation, which has been passed, that gives them the authority to request this information.

Mr. Paul Szabo: Security and safety, though, is under Transport Canada.

Mr. John Read: Yes, but this information is being sought in the United States for immigration and customs purposes.

Mr. Paul Szabo: Who is the competent authority in Canada?

Mr. John Read: For which subject?

Mr. William Elliott: For aeronautics, the answer is Transport Canada.

Mr. Paul Szabo: Okay, thank you. So if any information is requested, pursuant to safety and security, public safety, defence, etc., and the United States is following competent authority, they would be authorized to give it to you?

Mr. William Elliott: Well, there are certainly other competent authorities in Canada with respect to security, including transportation security. I would also point out that, with respect to the interests of Transport Canada in relation to transport security, our interest largely ends when a flight arrives. So our focus is quite different from the focus of Immigration and Customs, for example, which by and large are concerned about people coming off of airplanes. We at Transport Canada are concerned about people getting on airplanes.

Mr. Paul Szabo: Safety and Security is only worried about people getting onto airplanes in Canada.

Mr. William Elliott: With respect, my indication was that our primary focus is on people getting on planes, and that to a large extent, our interest ends when planes arrive. Certainly we have an interest with respect to people getting off planes, to the extent that they could pose a risk to aviation security, but most of the risks that we are most concerned about have to do with interference with aircraft while aircraft are being operated. That's why we do pre-screening and a number of things focusing on passengers, because we're concerned about interference with aircraft while aircraft are operating.

Mr. Paul Szabo: If Canada is going to have an effective safety and security strategy for airlines and airports and other modes of transport, is not the collaboration and exchange of information between competent authorities an integral part of that consideration?

Mr. William Elliott: Yes, it is.

Mr. Paul Szabo: So I guess the question has to go back to this: Is it our intent to request that competent authorities in Canada have access to all of the information on passengers travelling from the U.S. to Canada?

Mr. William Elliott: The provisions of Bill C-42 would allow for us, and it would be our intention, to seek information in appropriate circumstances with respect to passengers and aircraft coming into Canada, yes.

Mr. Paul Szabo: Just on a case-by-case basis, or the full manifest?

Mr. William Elliott: On a case-by-case basis. That's our intent with respect to Transport Canada. As my colleague has been indicating, there are other information requirements and requests by, for example, Immigration Canada and the Canada Customs and Revenue Agency.

Mr. Paul Szabo: If you do things on a case-by-case basis, then you have no pre-information. It's almost reactive information that you'd be going after, after a problem occurred. Would that not be the case?

How do you prevent certain terrorist acts if you don't have the information in advance and look for profiling or unusual patterns or whatever it might be, as opposed to on a case-by-case basis, which means when somebody comes to my attention for some other reason and I go and ask the U.S. How do you get it on a real-time basis so that the plane that's already in the air doesn't do something?

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Mr. William Elliott: With respect to Customs and Immigration, I think their intention or their hope is to be provided with information about people coming to Canada. More generally, the information we would be looking for would really be as a result of a concern we might have about a named individual or a specific flight based on information.

There is currently no regime to do what you refer to as “profiling” as a means of determining who can and cannot board an aircraft, and we have no immediate plans to institute such a regime.

Mr. Paul Szabo: That's too bad to hear, really. I'm somewhat disappointed. That's probably why I've always supported that safety and security should get out of transport. I don't know what it is, but it just doesn't seem like we talk to each other. We don't know what CIC does, but we should know. That is a grave concern.

This committee would be derelict in its duties if it didn't raise these points in reports, Mr. Chairman. Somehow or other, I think we have to put ourselves in the same position that the U.S. is trying to put themselves into. I want the information in advance and I want it on a real-time basis so that when somebody checks in or I have my manifest set, I know, and I know on a real-time basis.

That leads me to my final question. It has to do with the form of the information. Is there a requirement, are you aware... Maybe it's not even specific, but it would appear to me that this information is going to be useful and that the airlines would be asked to provide it in electronic form possibly, as well as paper form as an option. Obviously if it's going to be really useful for any crackerjack security thing, it would have to be in electronic form so it could be merged or incorporated into electronic databases that could be searched on a real-time basis. Has there been any discussion?

Ancillary to that, if it is the intent of somebody in our Government of Canada that we also have the sophistication, would it also be our requirement that any data being requested from the United States or any other competent jurisdiction within a foreign authority be in electronic form?

Mr. William Elliott: The U.S. legislation does talk about the provision of information by electronic transmission. I think our proposals in Bill C-42 indicate that we could stipulate in which form we requested or required information. It would be our intention to provide information or to request information electronically for the reasons indicated, in order for us to make use of databases.

The other thing I would like to add, Mr. Chairman, is that it is not correct to indicate that we don't speak to or cooperate with our sister agencies and departments. Quite the contrary. Both before and after September 11, we have made a concerted effort in cooperation with agencies, including the RCMP and CSIS, Canada Customs and Revenue Agency, and Immigration, to provide better linkages and a better sharing of information in appropriate circumstances in the interests of security.

The Chair: Bev.

Mrs. Bev Desjarlais: In view of your statements, I too am quite baffled over the comments you've made about it not being necessary to have the information ahead of time. It's beyond me where Transport Canada has been over the last number of months.

I can tell you that what we've been hearing is that maybe what happened on September 11 wasn't as a direct result of somebody checking baggage at the airport, but it's become very clear that there's fault in the system of security checks at airports and probably in other transportation areas as well. But in those other transportation areas you don't have a huge amount of fuel with a number of passengers sitting on top of it being able to be used as an explosive device and jeopardize the lives of literally thousands of people.

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I'm at a loss as to where the heck you have been over the last number of months when we've been listening to the serious concerns people have over certain passengers being noted before they get on those flights. You haven't said a thing here today about how we're going to be able to identify those passengers ahead of time through Transport Canada's security efforts.

I agree with Mr. Szabo. I think if we're talking security, then we're saying we'd better have experts in security looking at the people who are looking to use those airplanes as weapons. We have to be able to identify them ahead of time. Absolutely nothing you've mentioned will do that. Quite frankly, you've literally emphasized that you're not going to do anything to identify those passengers ahead of time, that there is no system in place, that if somehow that information were available where... God only knows who's going to get it. Quite frankly, I still don't know who's going to get the information.

Some competent authority might say okay, we have a concern here, so we're going to notify somebody in Transport Canada. They're not a security expert, but they're going to be able to know what to do with this person or group of persons. I can tell you, I don't believe any of those terrorists gave a call and said that their husband or wife was on that plane and they're going to blow it up. Quite frankly, that's the reality.

We've had to face that reality and face the fact that we're going to have to give up some of our civil liberties. Where has Transport Canada been? We're here dealing with this and you're saying you're not even going to address the issue of getting that information ahead of time and trying to keep those persons off the plane.

I'm at a loss. I'm absolutely at a loss as to what the heck we're doing. Why are we even bothering, if Transport Canada can't see the need to get this information ahead of time and to have people dealing with security, being able to identify those persons and get them before they get on the flights? I'm just at a loss.

Mr. William Elliott: With respect, Mr. Chairman, obviously I and perhaps my colleagues, but principally myself, have not been clear enough.

The honourable member spoke about being at a loss. Frankly, I am at a loss, Mr. Chairman. I did not suggest that we were not interested. I did not suggest that we were not taking steps to deal with information appropriately prior to passengers boarding aircraft. I did say that we did not have plans to “profile”.

If there is a misunderstanding, it may be differences in understanding as to what is entailed in profiling, but we are certainly working with Immigration, RCMP, CSIS, and others. It would be our intention to deal with information appropriately so that we can reduce the likelihood of anyone getting on an aircraft who would pose a risk of interfering with the operation of that aircraft or interfering with the people on board the aircraft.

I certainly have said today that the provisions of the bill and the proposed regulations do not do a wide number of things, but we must remember that we're only dealing with one section and one draft regulation. There are a number of amendments before the House in Bill C-42 and there are a number of existing authorities under the Aeronautics Act and regulations.

So I am certainly concerned if the committee has taken the view that Transport Canada doesn't share their concerns about the security of passengers, crew members, and aircraft. We certainly do share that concern, and we are taking all reasonable steps to try to enhance the security of transportation in Canada.

The Chair: Val.

Ms. Val Meredith: To follow that last bit of conversation, does this legislation allow Canadian carriers to give information into the CAPPS program?

Mr. William Elliott: The information that would be provided to the United States, for example, would go principally to the customs people. The American legislation provides for the sharing of that information for purposes of national security. I would anticipate that information may well be referred to the U.S. CAPPS program.

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Ms. Val Meredith: Could the Canadian carriers put that information into the CAPPS program here in Canada?

A witness: It's not required.

Mr. Hal Whiteman: I'd like to make two points, if I may, Mr. Chairman.

The CAPPS program in the United States is a device or a system used to determine what form of more detailed or rigorous screening passengers may be required to undergo before they are allowed on board aircraft in the United States. That is with respect to passengers and aircraft already in the United States, so it is not relevant to this particular legislation.

With respect to the provision of CAPPS information into the U.S. system in Canada, my understanding is that there is no legislative provision now that would preclude that. That is information in Canada on Canadian soil. Is it done now? No. Are we looking at it? Very much, yes.

Ms. Val Meredith: So you are saying there's no legislation, including this privacy information legislation, that would preclude that information from being shared, being used, in the CAPPS program here in Canada?

Mr. Hal Whiteman: The CAPPS program uses the computer reservation system, the information that is already in that computer reservation system, and provides certain weights to certain aspects of that. It is absolutely transparent with respect to personal information on the individual. It deals with issues such as, as Mr. Szabo pointed out, one-way tickets, paying with cash, and so forth. Once the amount of information amassed gets beyond a certain threshold in terms of these criteria, then that determines in the United States the rigour with which the search takes place using explosives detection equipment.

Ms. Val Meredith: I want to get back to the question, which was whether there is any legislation in Canada, including the privacy of information electronic whatever, that precludes the airlines here in Canada from proactively putting their information into the CAPPS computer system, so that their information that they put on the Air Canada computer reservation system goes into the CAPPS program.

Mr. Hal Whiteman: I'm not aware of any legislative provision to that effect.

Ms. Val Meredith: Thanks.

The Chair: Are there any further questions?

Ms. Val Meredith: I think others have something to say on that.

Mr. John Read: Yes, I think it's important to point out here that CAPPS is an industry-run program. It's not a government-run program.

Ms. Val Meredith: Yes.

Mr. John Read: So when the industry has their own data, the industry can run their CAPPS program with that data. This is different from asking an industry to provide information to the government. That's prohibited under the PIPEDA. But for industry to use its own data itself is certainly acceptable.

Ms. Val Meredith: But if industry wanted to interlink their information from the CAPPS program with government data banks or data systems, would they be prohibited from doing that under whatever you—

Mr. John Read: They would not be allowed to provide us the data. We could provide them data in an appropriate scenario, but the CAPPS is run by industry. Everything else I guess is a hypothetical question.

Ms. Val Meredith: Well, it's not hypothetical, because if the industry is collecting information that is of utmost importance to the security of the airline industry, you're telling me they cannot provide that information to the RCMP, to CSIS, to Customs, to Immigration. The industry is prevented from taking the information they have from CAPPS, where they might make some assessments as an industry, and sharing that with government agencies?

Mr. John Read: Setting aside the normal procedures the RCMP and CSIS could invoke to seek information, they cannot, under PIPEDA, turn the full file over to us as you're suggesting. That perhaps is a question you could put to the privacy commissioner.

Ms. Val Meredith: So then whoever is operating CAPPS in the industry, who knows what's going on in profiling or passenger selection, I think it's called, would have to phone the RCMP and say “We have something you might be interested in, but you'll have to request it and go through the proper channels to request that information before it can be shared”?

• 1300

Mr. John Read: Well, I don't think there's any objection, if a crime is being committed or about to be committed, to someone revealing that information. We've gone through this discussion ourselves. That's not going to be an obstacle. But if you're off to a “maybe” and into the “what if” areas, the law of our country now, PIPEDA, prohibits governments from collecting that kind of data the way you've laid it out.

Ms. Val Meredith: Thank you.

The Chair: Paul.

Mr. Paul Szabo: The legislation says, with regard to an aircraft departing, that an aircraft operator can provide to a competent authority “any information that is in its control relating to the persons on board (...) and that is required by the laws of the foreign state.” Schedules 1 and 2 provide a laundry list, but they may not necessarily be what an airline has captured. So if an airline doesn't have a system in which they capture all the information in schedules 1 and 2, and it's requested by a foreign jurisdiction but the airline doesn't have it in its control in the normal course of business, can the airline be in a position where they would be shut out by virtue of the fact that they couldn't provide information that was scheduled but was not in their possession or control, but that was requested by a foreign jurisdiction, with the consequence being that they not be permitted to fly?

Mr. William Elliott: That's a possibility.

Mr. Paul Szabo: So the airline industry is probably going to be faced with rationalization of their information-gathering to bring it up at least to the standard of information being detailed in schedules 1 and 2, to protect itself.

Mr. William Elliott: That's a fair statement.

Mr. Paul Szabo: We're doing this, we're giving this permission, because if we don't, then Canadian airlines are not going to be able to fly to the U.S. So the Canadian government is a player here, because obviously it's in the best interests not only of the airline industry but also of security and safety generally that we collaborate, cooperate, or whatever the proper word is.

The point I'm trying to make is it would appear the Canadian government is putting additional responsibilities with regard to national security and safety on the shoulders of the Canadian airline industry, at probably a cost, an incremental cost, to what they're normally doing now.

Mr. William Elliott: Well, I would agree generally with that statement, but I think it is the events of September 11, and in the instance we've been spending most of our time talking about this morning, and I guess now this afternoon, the U.S. requirements. I would say that post-September 11, in the world we're in and moving to, there will be additional costs for doing business in aviation.

Mr. Paul Szabo: And I want to ask the question again. Do you not think it would be prudent to designate in schedule 3 not only the country but the designated competent authority or authorities where that may be the case?

Mr. William Elliott: That's certainly a very useful suggestion, which we will raise with the minister and others.

I would point out that the provisions of Bill C-44 do indicate that the Governor in Council may make regulations generally for carrying out the purposes of this section, and then it refers more specifically to two categories of regulation. But certainly, pursuant to the authority sought by the proposed amendment, it would be open to the Governor in Council to make regulations stipulating the competent authority to which information could be provided.

Mr. Paul Szabo: In a related way, the situation in the United States is such that the FAA may be, under international recognition, the competent authority, but security and safety has been stripped from them and is now under an undersecretary within Transport. In fact, we were led to believe that it is possible that there will be a further shifting of that responsibility, possibly to the Office of Homeland Security.

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For this legislation, the overriding umbrella is if it has to do with public safety, security, or defence. The FAA, and maybe down the road the equivalent of our Ministry of Transport, will not have security, safety, or defence responsibilities, and yet they would be the ones theoretically who should be making the requests for the information to discharge their responsibilities.

Mr. William Elliott: I have a point of clarification. There can certainly be competent authorities other than, in the case of the Americans, the FAA. The competent authority would have to be competent with respect to the receipt of information for the purposes of the information request. In the American legislation, the competent authority as listed is the Commissioner of Customs.

Mr. Paul Szabo: Okay. Thank you.

The Chair: Is there any further discussion?

Thank you very much, lady and gentlemen, for being here. We appreciate your input.

Before I close, to the committee, our competent researcher here, Mr. Christopher, requests to go to Washington to attend a course. I'm going to write a letter on his behalf supporting him. I think it would be helpful in his job. Is it agreed that I do that?

Mrs. Bev Desjarlais: This is a course related to transport?

The Chair: Yes. Oh, we're not going to leave you too open, Bev.

Mr. Paul Szabo: What is the status of our draft report? It might be useful just to review what's happening with this committee. It seems it's in a “be on notice” mode. We have meetings this afternoon, this evening, tomorrow afternoon, and when else? But tomorrow afternoon is to receive the draft report?

The Clerk of the Committee: At the moment, what's planned so far is that instead of doing the consideration of the draft report on Thursday, Mr. Chair, you had asked us to do it on Wednesday. At the moment, that is the plan, providing that the appearance of Minister Boudria happens tonight, which is Tuesday night.

If that's pre-empted by votes, Minister Boudria had requested to appear on Wednesday afternoon, which would push the consideration of the draft report to Thursday, which was originally planned by the committee. We can do a meeting on the Thursday if the committee members want.

Ms. Val Meredith: Do you want to run over that again? Tonight is the—

The Clerk: Minister Boudria is appearing tonight on Bill C-43. If for whatever reason that is pre-empted by voting in the House, the minister had asked that he appear tomorrow afternoon, Wednesday. If that happens, the consideration of the draft report could be either tomorrow night or Thursday during the day.

The Chair: If the voting is not too long tonight, I think in an hour or so, we should be able to dispense with that tonight. Okay?

Mr. Paul Szabo: What's the plan with regard to the draft report as far as following through to presentation in the House?

Mr. John Christopher (Committee Researcher): We'd like you to meet on it tomorrow, give us your changes, and we'd like probably to meet with you again on Thursday so that you can look at those changes. Then, depending on the committee and how they want to proceed, whether they accept the report or not, we can have more.

The Chair: If we table it on Monday with this budget, it won't have the same force, I don't think. So if we can do it sometime this week, it would be nice.

Mr. Paul Szabo: So that was the point. The intent would be to have the report tabled in the House on Friday at 12 o'clock, during routine proceedings.

Mr. John Christopher: That's why we'd like to have a meeting Wednesday and probably Thursday morning on the report.

Mr. Paul Szabo: If Wednesday's meeting is to receive the draft—

The Chair: Final changes.

The Clerk: We're hoping to get the draft distributed electronically today, if we can, and then meet tomorrow to discuss it.

Mr. Paul Szabo: To discuss it. So we will have it sometime today.

The Clerk: We hope so.

Mr. John Christopher: Probably this afternoon.

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Mr. Paul Szabo: Okay. And is there consensus, Bev and Val, that we should try to get our report tabled in the House Friday?

Ms. Val Meredith: This Friday?

Mr. Paul Szabo: The reason being that there are elements, according to the National Post, in Monday's budget.

Ms. Val Meredith: I'm game if they're ready for that.

Mr. John Christopher: Oh, you'll have the draft today, and it just depends on what you want done with it after you see it. We're in your hands after we give you the report.

Mr. Paul Szabo: Our review will constitute basically a high-level, important-point thing, and we're going to leave it up to the discretion of the chair and the researchers to accommodate the language changes, but not go into periods and commas.

Ms. Val Meredith: I think we could probably get through it in one meeting.

Mr. Paul Szabo: That's our intent? Okay. So tomorrow we're going to try to finish it off. Hopefully the changes will be modest so that the translation can also be done and the printing can be done and we can get it tabled in the House. Okay.

The Chair: Okay, we're adjourned until 3:30.