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

• 1529

[English]

The Chair (Mr. Ovid Jackson (Bruce—Grey—Owen Sound, Lib.)): Ladies and gentlemen, I'd like to call the proceedings to order. The order of the day is Bill C-44, An Act to amend the Aeronautics Act.

This afternoon, Mr. George Radwanski, the Privacy Commissioner, is with us.

Welcome, Mr. Radwanski.

Mr. George Radwanski (Privacy Commissioner of Canada): Thank you very much.

I don't have a major opening statement to make. I'm primarily here to answer any questions you might have.

Since Bill C-42 was introduced, followed by this offshoot Bill C-44, of course, I have been in very constructive discussions with senior officials of the Department of Transport and with the office of the Minister of Transport to ensure that the provisions in the legislation, while carrying out their policy purposes, would be respectful of the privacy rights of Canadians, to the maximum extent possible.

• 1530

With regard to Bill C-44, I have several concerns. There's a general concern that supplying information about Canadians at the demand of a foreign government is obviously not an attractive state of affairs. Having to do it in some haste and under severe pressure from such a foreign government is even less attractive. Obviously, while I understand the constraints under which the government was operating, there was a concern about ensuring that privacy was respected to the maximum extent possible.

One concern in this regard is obviously that information about Canadians is being provided to American authorities. One wants to know what safeguards will pertain to that information once it is provided. What uses might the foreign authorities have for that information? Will it be limited to matters of security, immigration, customs clearance, and so forth? Will it be shared with third parties within the country? Could it fall into the hands of commercial interests, for instance? And can it be shared with authorities of third-party foreign countries?

Those safeguards are not currently in place. Given the time pressure under which this is taking place, it would obviously be unrealistic to think they could be put into place through any immediate process. But as you know from my letter to him, I have asked the minister to put a major priority on pursuing assurances and safeguards from the U.S. government and the government of any other country with which a similar arrangement might be obtained, that the information will only be used for the purposes for which it is provided, and that it will not be provided to third parties outside those authorities or be shared with third-party countries. I can only express the hope that this will take place.

My second concern is a very important one to the extent that the PIPED Act, the private-sector law, is being bypassed in this instance, and the normal protections for personal information being disclosed and shared without consent are being bypassed. This must not result in a windfall of information to the Canadian government. In a sense, from a privacy point of view, it's bad enough that it has to be provided to third parties, to other countries, but the Government of Canada and its various entities should not end up with backdoor access to information that they might not otherwise have about Canadians. That has been addressed.

I recommended to the minister and to his officials a specific amendment that would specify that the information collected by foreign authorities under this law, under this provision, could not be collected back by the Government of Canada except for reasons of security, public safety, or national defence. If so collected, it could only be used for those purposes. In fact, I understand that this amendment has now been presented to the committee. This amendment fully satisfies me in that regard, and I thank the Minister of Transport and the officials of the Department of Transport for their cooperation in addressing an important privacy concern.

The third area touches on the whole issue of what information will be provided. The legislation says it's any information required by the laws of a foreign country and in the possession of the airline. That can be extremely broad. For instance, it could include frequent flyer information, which would include all the information about the travel the individual has undertaken in the past year. That could have very serious privacy implications. It could include lifestyle information—dietary preferences or whatever—that could reveal, for instance, the religion of the individual, or could appear to reveal the religion of the individual. It could be any number of data elements that are not normally narrowly required for security purposes or do not simply tell you who is on the plane, and I'd be concerned that such information not be made available.

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The information that is listed in the schedule is in the regulations for the most part, it is restrained for the most part, and is relatively harmless on the face of it. Obviously, some of the information is of concern with regard to where it could be shared, such as addresses or phone numbers of individuals. At the point where it says the manner in which the ticket is paid for, it is ambiguous. If the airlines simply provide the information they have, that could include credit card numbers, for instance, and that could be very sensitive indeed. But this is still a relatively restrained list.

From where I sit, I would be a great deal happier if the permissible information elements that can be provided to a foreign authority if required by its laws, were not in regulations, but in the legislation itself. If this is the view of the Canadian government in regard to what can reasonably be provided—and I certainly don't think providing more would be reasonable—I would be delighted to see it in the act itself, the difference being that if one wanted to add elements that could be troublesome, like frequent flyer information, it would have to be debated and this kind of process would have to be put before Parliament, whereas regulations can be amended by Order in Council. With regulations, there is really no process, no scrutiny, no opportunity for this kind of intervention, and that would be troubling.

All this being said though, on the whole, I am pleased that privacy concerns were taken into account. I am pleased that the Department of Transport was sensitive to the concerns of the Privacy Commissioner. The very short time available did produce an amendment that fully meets what I requested legislatively, and has produced a list of data elements that is restrained, given the circumstances. That being said, I'm in your hands.

The Chair: Thank you very much, Mr. Radwanski.

We'll start with Mr. Mario Laframboise, from the Bloc Québécois.

[Translation]

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you, Mr. Chairman.

I see that you were given the list of appendices. What we were given this morning are possible regulations and this was at the request of the Bloc Québécois. We put a question to the House leader. Did you get that list this morning also?

Mr. George Radwanski: This afternoon, about a half hour ago.

Mr. Mario Laframboise: Right; I did actually think they had not told you about it.

I will tell you honestly that the party I represent, the Bloc Québécois, is rather satisfied. What concerned us were the kinds of information to be provided. Having seen the appendices they provided, we still have some concerns about the telephone numbers and the credit card numbers. You also raised that question, but you still seem to be okay with it.

We have to understand that appendix 2 is not something the Americans are requiring. According to the American legislative texts, they are requiring the information contained in the records or passenger files. Canada is seeking more details in the regulations it wants to put forward. There are the 29 points. We were told this morning that the list could be added to or subtracted from.

Just like you, I am conscious it should perhaps have been written into the legislation because in the U.S.A. that kind of information is in the legislation, amongst other things. In our case, it will be in the regulations. If ever we decided not to include them in the legislation... The bill before us does not include the information. That will be in the regulations. Are you ready to live with the 29 items of information such as telephone numbers, as they are set out in the list? You do not have any specific questions coming to mind? There is nothing shocking in there? If it were the case, may be we could take it out, because it is negotiable.

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[English]

Mr. George Radwanski: Well, let me answer that.

[Translation]

I will answer your question on

[English]

the credit card numbers. The concern is method of payment.

Mr. Paul Szabo (Mississauga South, Lib.): Credit card numbers?

Mr. George Radwanski: The airline information could include the card number that was used to pay. If an airline provides the information as it has it, it could simply be method of payment, Amex card number such-and-such. That's the concern. Depending on how an airline keeps its records, it could turn up that way.

Mr. Paul Szabo: That's not what they told us earlier. The manner is not the number.

Mr. George Radwanski: That's fine. If that turns out to be the case, then I'll be very happy.

[Editor's Note: Inaudible]

An hon. member: —

Mr. Paul Szabo: Cash, cheque, or credit card.

Mr. George Radwanski: I'm just concerned that the language is general enough to permit it.

[Translation]

Coming back to your question, what we have here on that list does not concern me all that much on condition that the American authorities will not divulge the addresses or the phone numbers of Canadians to the private sector or to other governments. As this is personal information, you have to put a limit on what it can be used for. That is why I asked the minister to start discussions with the Americans, with a view to coming to an agreement later on how that information might be used and to set out that it will not be possible to share it with third parties.

So, yes, I can accept the items of information that are required here.

Mr. Mario Laframboise: If that included credit card numbers, would that be a concern?

Mr. George Radwanski: If that information were used only for national security purposes by the Americans, they would not be able to do much with that except maybe compare them to the numbers that might have been used by terrorists. However, if that information were given to the American private sector or to the government of another country, for example, then it would be more dangerous.

Mr. Mario Laframboise: I really do appreciate the amendment you have suggested. It is clear that if this wording is accepted by the government, we will not be able to use the information we obtained from...

[Editor's Note: Inaudible]

...but the reverse is not necessarily true. We can never guarantee that the American legislation will not allow the information contained to be used.

Mr. George Radwanski: That is it.

Mr. Mario Laframboise: That is why the 29-item list worries me. We will be able to include your amendment in our legislation and I thank you for that, but nothing guarantees that the countries dealing with us will be under the same obligation.

Mr. George Radwanski: I agree and that is why, when I wrote to the minister, I asked him to start negotiations with the Americans with a view to coming to an agreement and establishing with them regulations on the use of that information. But that will not be in this act.

Mr. Mario Laframboise: That is it. If we do not pass regulations... The regulations will have to be passed very quickly for the pure and simple reason that, as you say, the information required is not set out in the act as it is written. So we will have to wait for the government to pass those regulations quickly. Of course, if we have not negotiated with the Americans and if we maintain the list that we already have, there is no assurance that this information will not fall into the hands of... In my case, I would have restricted that until we had come to an agreement with the Americans. A regulation can be changed. We could always add something if ever that happened.

Mr. George Radwanski: In my case, I am doing what I can. That is all I can tell you about that. We are doing what we can to give maximum protection to privacy and personal information. Frankly, most of the information is not very sensitive or delicate. I do not have a very strong opinion on that, frankly.

Mr. Mario Laframboise: It is good to see that you wrote to the minister to tell him we should arrive at agreements quickly. Perhaps I would have liked you to add that such an item or another posed more of a problem and that they should not be included until our negotiations with the Americans.

• 1545

Regulations will be tabled very quickly. In any case, I hope we will manage to agree to make that the other countries will do as we are doing and will not make the information available for purposes other than those of national security, public security and defence.

You are our watchdog. It is up to you to protect that information.

Mr. George Radwanski: I can assure that I am doing everything in my power, sir.

[English]

The Chair: Thanks, Mario.

Bev Desjarlais.

Mrs. Bev Desjarlais (Churchill, NDP): I have to admit that I don't have a lot of questions. I appreciate your point that you don't have serious concerns with the list as it is. I would agree—and I think a number of my colleagues would—that it would be great if we could have the specifics within the legislation, but we know the government's view on putting things in legislation rather than having them in regulation. It's always a little tough to get them to do that, so we'll recognize that it would probably asking for the moon at this point.

An hon. member: Be kind.

Mrs. Bev Desjarlais: That was the kind part.

I appreciate your comments that you're not extremely concerned about it and that the information wasn't overly sensitive, as well as your comment that if it got to the point at which it was information such as credit card numbers and phone numbers, assurances would be needed that such information would only go to the departments based on national security issues.

One of the concerns I did have about the bill was whether or not it contained assurances that this information couldn't be requested by another foreign government, rather than say, the government of the state to which the plane is going. Did the possibility come to you at all that nothing in the bill stipulates that the information only had to go to a specific foreign state?

Mr. George Radwanski: That's an interesting point. The way it's worded, the assumption is that the aircraft is en route to that country. Could another country request it? Well, first of all, according to the way the bill is drafted, it would only be given to a country specified in the regulations. Would it be of greater concern if France had information about passengers on a plane to the U.S., than if the U.S. had it? At the very least, I suppose I would have the same view that whatever country was going to have such information, it should have clearly agreed with Canada upon rules on how that information may be used, to whom it may be or, more importantly, may not be disclosed.

Frankly, it's an interesting hypothesis. I haven't thought about it before, I'll be candid with you. I don't imagine that's terribly likely in this sense. The basis for being able to ask this... the United States is saying that if we don't give this information, they won't let our planes land or they will take five hours to screen the passengers when they get off. A third-party country would have a very hard time enforcing that kind of request with regard to a flight going to a country other than itself. I don't think it's a huge concern, to be honest.

Mrs. Bev Desjarlais: So you couldn't foresee one country saying to another country... Let's just use the U.S., because we're doing this for the U.S. right now, although in reality it could be something we have to do with numerous other countries in regard to what has happened now. Is it foreseeable that one of those other countries could say to the U.S.—and we all know it wouldn't happen with the U.S., because they're the big guys on the block—that it wants this information because it wants to know what those passengers were doing or it wants to know if those passengers might be a cause for concern when they were going into its area?

Mr. George Radwanski: It's a point. I have to concede that it had not occurred to me. I suppose if the government were amenable, one could suggest to it that it could be easily fixed by saying, “provide to a competent authority in the foreign state that is the destination of such an aircraft,” if one wanted to clarify that intent.

• 1550

Mrs. Bev Desjarlais: I had a bit of a concern before, and when the amendment came today, I became even more concerned. To me it was even more open, because it just states:

to a competent authority in a foreign state

—not the specific foreign state, but a foreign state—

may be collected from that foreign state by a government institution, within the meaning... 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...

It doesn't really specify distinctly that it's the country the aircraft is going to.

Mr. George Radwanski: This is simply a follow-on to the previous provisions. The amendment doesn't empower anything beyond what's in the original provision.

Mrs. Bev Desjarlais: Somehow, I had hoped for something more concrete to indicate that it was only for—

Mr. George Radwanski: It's an interesting point, and one that could usefully be put to the officials if you have opportunity to call them back, frankly.

Mrs. Bev Desjarlais: I was actually concerned about refugees and people from other countries who would come into our country and then might go somewhere, and that there might be a request to follow up.

Mr. George Radwanski: I hadn't read it that way. In the way it was explained to me—and I guess the reason why I didn't read it that way—when I was briefed by officials on this legislation and on C-42, I stressed a variety of concerns. I was told it was put in solely on the basis of the concern of countries, but specifically the U.S., that they wanted to know who was going into the U.S. on any plane headed for the U.S., and the Americans were adamant that they had to have that information. There was certainly no element of a suggestion of interest in aviation information more broadly, and I've addressed it on that basis. On the basis of the explanation that was given to me, I certainly would have no difficulty with saying no country has a basis for demanding information about people going to a country other than itself.

Mrs. Bev Desjarlais: With that assumption, if we were to look at this type of situation happening between, say, the U.S. and Israel or some other country right now, and they wanted information related to people who they thought might be involved in some actions... Let's put this in the scenario of it happening to another country, with the U.S. then wanting information from that other country related to someone who might be involved in certain activities, because they wanted to follow who was on those flights. In seeing that, I can see it happening with our flights, too. We don't necessarily think the U.S. is going to do that to Canada, because it just isn't one of those things that would normally happen.

Mr. George Radwanski: As I say, the scenario had not occurred to me. It was not a scenario presented to me as underlying the intent and the purposes of this legislation in any way. Because I have not reflected on this until now, I can't go beyond that to give you a very strong sense about it. If you have that concern, I would certainly encourage you to call back the officials, ask them about it, and ask if they're willing to add a few words to make it clear that it's to the country of destination.

Mrs. Bev Desjarlais: Thank you. That's fine.

The Chair: Mr. Szabo.

Mr. Paul Szabo: If an airliner is going from Canada to Mexico and is flying over U.S. airspace, do you think it's inappropriate for the U.S. to request that information? Do you think there would be a security risk to the U.S. if a plane was flying over its airspace?

Mr. George Radwanski: That's not for me to determine.

Mr. Paul Szabo: Do you suspect there might be?

Mr. George Radwanski: They might have an interest, I suppose.

I am not altogether comfortable—and I made this very clear—with legislation based on the wishes of another country that desires information about Canadians. We appear to have no choice but to comply, for fear of not having our planes permitted to land.

As the champion of the privacy rights of Canadians, I have to say that just because someone wishes certain information, that doesn't mean they're automatically entitled to have it. We should try to constrain, as narrowly as possible, what we are willing to provide and why.

Mr. Paul Szabo: I understand you have to play devil's advocate on behalf of your mandate.

Mr. George Radwanski: I wouldn't say I'm playing devil's advocate. I would say this is protecting a fundamental right.

Mr. Paul Szabo: Understood, but you don't have to worry about the context. You just look at the absolute that with any release of information, without any care for what the purpose is, you want to protect it.

• 1555

Mr. George Radwanski: No, let me be clear on that. Since September 11, I've said repeatedly, in a number of speeches and in other testimony, that I would never argue that privacy is an absolute, nor would I argue that there may not need to be some new limitations on existing privacy rights in the name of necessary measures to enhance security. What I've said was that in each instance, it has to be justified on a case-by-case basis, using very clear criteria. But it does mean one can't simply provide any and all information in any and all circumstances, on the possibility that it might somehow be useful. That, of course, would be the end of privacy rights as we know them.

Mr. Paul Szabo: I'm not sure that's an accurate representation of what the bill is doing.

Mr. George Radwanski: Nor am I suggesting it is, not with the constraints that are being put on it.

Mr. Paul Szabo: Then we should clarify the record.

First of all, we are advised that with regard to the amendment to which you referred and of which we have been provided a copy, there are three schedules. Schedule 1 is the information that will be provided on request with regard to a flight, for all people. Schedule 2 is on a case-by-case basis only. That is, it will not be automatically provided, it will only be provided if a competent authority of a foreign jurisdiction listed in schedule 3 makes a specific request about a specific case. It's after the fact with regard to possibly a risk assessment matter. Is that your understanding of those schedules?

Mr. George Radwanski: They have not been explained to me. I saw them for the first time half an hour ago.

Mr. Paul Szabo: That's the explanation that we have been given with regard to why there are two schedules.

Secondly, are you also aware that the government is not requiring airlines to do this? This is not a direction or a requirement, it is basically making whatever legislative changes are necessary to permit the airlines to do that without impunity.

Mr. George Radwanski: That's correct.

And let me be very clear—because I think you're implying this a little bit in the way you're asking these questions—that I am not objecting to this piece of legislation. I have simply requested that it be ringed with as many safeguards for privacy as possible. I did not say to the department or to the minister that this is inappropriate, that I would like to see it withdrawn, or that I condemn this legislation, news reports to the contrary.

Mr. Paul Szabo: Are you aware whether or not any airline that obviously has information detailed at least in schedule 1, is currently providing that information to any other parties outside of its own business use?

Mr. George Radwanski: I'm not.

Mr. Paul Szabo: Would it surprise you if they were?

Mr. George Radwanski: It would concern me, because absent this legislation, they'd be in violation of the private-sector privacy law.

Mr. Paul Szabo: We explored this thing with the officials, and it appears that the information is also being shared with, for instance, Star Alliance parties by Air Canada. Thai Airways or whatever would also have this information simply because of connecting flights, etc., so it is actually quite broadly disseminated, and we have no control over what they ultimately do with it in future transactions.

Mr. George Radwanski: Well, first of all, there's a distinction if information is provided for the purpose for which it was collected, which is to say that if people are making connections between Star Alliance airlines, the pertinent information has to be provided to the second airline, so that is not a violation of privacy rights. If an airline were disclosing this information to some third party for any other reason, absent this kind of legislation, it would have a potential problem.

Mr. Paul Szabo: Are you familiar with the term “profiling” in the context of security and safety?

Mr. George Radwanski: I am indeed.

Mr. Paul Szabo: Do you think frequent flyer patterns might be relevant to profiling?

• 1600

Mr. George Radwanski: If one is dealing with an investigation, there are ways of obtaining information by warrant or whatever may be appropriate. In a given case, that's one thing. I think indiscriminate profiling of everybody—collecting any and all information about someone because it might be useful for profiling—is exactly the point at which the legitimate interests of security end up being expanded to the point at which the fundamental right of privacy is unacceptably at risk.

Mr. Paul Szabo: Are you suggesting this legislation, in any way, shape, or form, is indiscriminately making available a venue for information that's not absolutely necessary for defence, safety, or public safety?

Mr. George Radwanski: No, not in its specifics as provided. Nothing in the way in which the legislation is drafted would prevent regulations from being expanded at the request of another power, of another country, to include frequent flyer information, for instance. That would concern me a great deal, particularly if it were about all travellers and if there were no safeguards on the forward sharing of that information. That could have very serious consequences for individuals if that information ended up in the wrong hands.

Mr. Paul Szabo: Again, I'm not sure we're of the same understanding about how this legislation works. My understanding is that the Government of Canada, through the regulations and through these two schedules, is detailing which pieces of information the airlines are given the authority to release, and no other pieces as long as they're not in the regulations.

Mr. George Radwanski: Yes, but all I'm saying is that if another country that we do not wish to not cooperate with—say the United States—turns around tomorrow or next month and says it wants additional elements of information on every flyer beyond those bits currently specified in the regulations, no mechanism in this act prevents the government, if it so chooses, from adding any such elements to the regulations by Order in Council, and that information is then no longer protected. At present, there is also nothing ensuring how that information can be used by the acquiring authority, including whether or not it could share it with third-party countries and so forth.

That's all I'm saying. I hope I'm making myself clear. What's in the regulations today is not necessarily—

Mr. Paul Szabo: No, you're polluting that a little further than I thought, because any foreign authority could request all kinds of information that is not specifically scheduled, and the airline couldn't provide it because it wasn't authorized to release it. Therefore, it would take a long time for a jurisdiction to say it's expanding their stuff. They have to give notice to the government, knowing that to amend these schedules, we have to get an Order in Council.

Mr. George Radwanski: But an Order in Council can be made at the next cabinet meeting.

Mr. Paul Szabo: Of course it can, but you can't get it in time for a flight that you're interested in.

Mr. George Radwanski: No, that's not what I'm saying. I'm saying you are presupposing this matter is of interest with regard to a specific flight. I am concerned that there might be an interest in getting information pertaining to every flight.

Don't get me wrong. Again, I want to be very clear that I'm expressing the preference that it would be good if this information were contained in the legislation itself, not in the regulations. I am not condemning this legislation. I am expressing concerns about which we should be vigilant as this goes forward, including the fact that if a request were made—or if a demand were made, as the Americans seem to be more prone to make on these matters—that further information be provided, the regulations could very easily be amended without this kind of process of discussion about appropriateness and about safeguards. So having this discussion now is good.

Mr. Paul Szabo: But if you put the details in the legislation, it could take weeks, months, or maybe even years to make changes, depending on the cycle and condition of Parliament. That might in fact put an airline in a position in which it couldn't comply, and it therefore would not be permitted to go to a foreign destination if it was at the insistence of a foreign government that the information be provided. So it makes no sense to lock yourself in.

Are you suggesting that there's no accountability with regard to changes in regulations?

• 1605

Mr. George Radwanski: On your first point, the philosophical question is whether or not we would want to draw a line in the sand at any point, saying a foreign government could not simply demand things that are inappropriate for Canadian entities to provide. At some point, we would have to say something is inappropriate and the Government of Canada is not going to countenance it. If inappropriate sanctions were contemplated by that other country, we would have to argue that out.

I would not want to think this legislation—or any legislation—is simply based on the premise that whatever a foreign country asks of Canada, if that country is insistent enough, Canadian policy must consist of throwing up our hands and giving it to them. I hope you agree with me on that.

Mr. Paul Szabo: My understanding is that within a foreign jurisdiction, the details have to be part of their own legislation. They can't be holus-bolus—this time around, they want credit card numbers for all those who charged. They can't do that just because they think it might be interesting to have that information.

Mr. George Radwanski: Not necessarily.

Mr. Paul Szabo: It would be pursuant to their own legislation, would it not?

Mr. George Radwanski: It would be pursuant to what's required by the laws of the other country. The laws of another country can say—as ours is going to do in this instance—that the data elements required will be determined by regulation. Another country could demand just about any information, by directive, by regulation, by whatever, and, as per this legislation, it would be required by the laws of that country. So, yes, the scenario does it exist with less constraint than you might hope.

Mr. Paul Szabo: Okay.

The Chair: We'll go to Val.

Ms. Val Meredith (South Surrey—White Rock—Langley, PC/DR): I'm a little taken aback by the language you use in terms of saying “the demands of the Americans” and “inappropriate use of information”. Are you familiar with the act in the United States that controls the use of information, the Privacy Act of 1974?

Mr. George Radwanski: It doesn't apply to foreigners. It doesn't apply to Canadians, it applies to Americans.

Ms. Val Meredith: You made the statement that once this information gets to the United States, nothing controls how the Americans use that information. I'd like to read from the American legislation, the Privacy Act of 1974, under “Conditions of Disclosure to Third Parties”:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains unless disclosure of the record would be...

And then there are some exceptions.

Mr. George Radwanski: Those rights do not pertain to foreigners.

Ms. Val Meredith: Is this not very similar to the Canadian legislation, in which we also have exceptions to where government agencies can share information?

Mr. George Radwanski: There are two issues.

First of all, the American Privacy Act, unlike ours, has no specific oversight mechanisms whatsoever. There is no officer of Congress and there is no ombudsman. That's point number one. So more is at stake.

Ms. Val Meredith: Is this not in the act?

Mr. George Radwanski: Please, it is more a statement of good intentions than it is a legislative assurance, first of all, and that's where Canadian law differs from American. Two, the American Privacy Act does not apply to residents or nationals of other countries. Three, I asked officials of the Department of Transport what safeguards will apply to the use of this information by American authorities with regard to whom they could share it with, or where it could be passed on with regard to other interests or third countries. The answer was that there are none.

Ms. Val Meredith: So what you're saying is that because this information the Americans are receiving is on foreigners or foreign nationals, U.S. laws would not pertain to that information that the Americans had collected.

Mr. George Radwanski: Not under privacy rights, no. American law does not give Canadians privacy rights.

Ms. Val Meredith: I'm not saying it gives Canadians privacy rights, I'm talking about the information they have collected. What you're telling me is that the American law does not protect the information their agencies have because that information belongs to foreigners.

Mr. George Radwanski: It doesn't protect it in any way that I would regard as sufficient protection for the privacy rights of Canadians. If you would like to explore this further, perhaps you could call the American ambassador and he can explain it to you. But my view is—

Ms. Val Meredith: I certainly will be following it up, because—

Mr. George Radwanski: Please do.

Ms. Val Meredith: —their legislation certainly says almost very much what our legislation says. You're saying their legislation doesn't address the fact that the information they have is on a foreigner, so I will look into that.

• 1610

Mr. George Radwanski: Also, there are no safeguards, as I indicated.

Ms. Val Meredith: When Canada collects information about foreigners, are those individuals protected under our privacy legislation?

Mr. George Radwanski: Generally speaking, no, not unless they're within Canada. But that's why—

Ms. Val Meredith: In other words—

The Chair: Just a second. Don't be too argumentative. Let him answer the questions.

Ms. Val Meredith: Well, he did. He said they were not necessarily protected.

What I'm reading is that our Canadian response to information on foreigners is not much different from the American response to information about foreigners.

Mr. George Radwanski: I think one difference is that, first of all, we are not forcing the Americans to provide any information about their citizens. Secondly, the point I have been making is simply—and I'm not sure what we're arguing about, if indeed we're arguing—that I think it would be appropriate for Canada to seek assurances from the U.S. that the information will only be used for certain purposes for which it is ostensibly intended; that we all be clear on the basis of a bilateral understanding—and that should be the case with any other country to which we provide similar information; and what the rules of the game will be in terms of how that information may be used. Quite frankly, I have not had it suggested to me by the relevant officials in question that it is unreasonable to try to have that kind of discussion.

I don't know what you and I are disagreeing on, actually, unless we disagree that the rights of Canadians should be protected to the maximum extent possible.

Ms. Val Meredith: My disagreement is perhaps just with the way you're presenting it—that the Americans are forcing Canadians to comply. Do you not think a state has the right to ask for information about people coming into their country? We do it.

Mr. George Radwanski: Well, my point—

Ms. Val Meredith: Do the Americans not have the right to gather information, and as much as they deem necessary, for their security?

Mr. George Radwanski: My point was that, in my view, when we're dealing with people's rights, sensitive information, and Canadian law, there should be room for an orderly process in this regard. The Canadian government asked for some limited additional time to try to do this in an orderly fashion, I was told, and it was told Canadian aircraft would either be denied landing rights or be subject to what sounded to me like deliberately obstreperous searches and so forth unless we complied.

I find it repugnant—and I stand by my use of that word—that laws affecting the rights of Canadians have to be rushed into effect, under the gun, as it were, at the behest of a country that is an ally and that I would think could be a little more guided by a spirit of cooperation rather than using those kinds of tactics. I don't like to see the rights of Canadians having to be dealt with in this kind of rushed atmosphere, quite frankly. That's the only point I'm making.

On the broader issue of providing information, exchanging information, sure we can do it, with appropriate safeguards. We're working on developing those safeguards. As I've said from the beginning, I'm not objecting to permitting the airlines to provide information, but the question is what information will be provided, and under what safeguards. Those are things that can appropriately be developed in a calm, rational way.

Ms. Val Meredith: I've been given the understanding that the legislation would so indicate. Yes, it's done through regulations, but most government legislation these days unfortunately is done through regulation. Although I have a problem with that approach to governance, the legislation and the schedule that the government has put in here is quite clear in terms of what information would go—the airline passenger list. In general, the manifest is very basic. That's what you are normally asked when you go through customs. It's not like they're asking...

I assume you fly a lot, and I assume you fly to the United States. The kinds of questions they're asking or are going to be giving are questions you're asked when you're precleared at Macdonald-Cartier Airport in Ottawa to fly to the United States. So I'm not out of line.

Mr. George Radwanski: I'm not usually asked for my phone number, for example, by American authorities.

Ms. Val Meredith: The first one doesn't give phone numbers.

Mr. George Radwanski: No, but they're in the second list.

Ms. Val Meredith: Well, that's the second list. I was dealing with the first list. The first list is something they're asking you anyway when you get precleared at the airport in Ottawa. They have that information anyway.

Mr. George Radwanski: The first list doesn't concern me in the slightest.

• 1615

Ms. Val Meredith: The second list is the passenger name record, basically. Mr. Szabo alluded to the fact that this information is already shared commercially. The witnesses from the department acknowledged that this information is collected through Customs... through Bill S-23, wasn't it?

Mr. George Radwanski: In Canada.

Ms. Val Meredith: In Canada, yes.

This information is also collected legislatively under Bill C-11 by Immigration, and CSIS and the RCMP have the ability to get this information through other means. So this information is already used throughout government services domestically.

Mr. George Radwanski: But that's all done subject to the constraints of Canadian privacy law, in order to keep it from being used for purposes other than those for which it is collected, to keep it from being disclosed to third parties inappropriately, and so forth.

If I may, just to be clear and to put it on the record, I'm a little surprised by the confrontational tone of our exchange. As I said at the outset, I am really here to say I'm pleased with the progress that has been made in tightening this legislation. I said I'd be delighted if this stuff was in the law rather than in regulations, because then it would be clear that it couldn't be changed. I did not come here to suggest that the law as it is now, with the amendment that I suggested, is worthy of condemnation, or that I object to it as Privacy Commissioner, or that it should not be passed.

I think we're on the same page. I'm a little concerned about having my position mischaracterized, because the next thing that happens is the media—which seem to be of the view that I'm incapable of making an utterance without slamming or blasting something, that I cannot write a letter without it being scathing—will say I came to this committee and attacked the legislation. I'm not doing that, and I would not want the tone of the exchange we're having to incorrectly convey that I'm doing anything other than saying it is desirable to have this kind of material matter treated with as much caution as possible.

I'm very pleased with the spirit in which the department addressed this issue. I'm very pleased that they did bring the one amendment I asked for. That is a victory for the privacy rights of Canadians, so I'm very pleased with it. I hope—and I've been given no indication to the contrary—that the department will pursue safeguards on how this information is used by foreign jurisdictions. As an advocate of privacy, I would be delighted if the details of information were in the legislation itself and not in regulations. They are not, but I can live with that.

I just want to be very clear on that, so that we have no possible areas of artificial disagreement.

Ms. Val Meredith: If you're concerned about the tone, then when you accuse our allies south of the border of forcing us to do something, and when you use the word “repugnant”, I'm sorry, but you kind of set the tone. I'm responding in kind to a tone that your opening comments set at this table, and I don't apologize for it—

Mr. George Radwanski: That's fine.

Ms. Val Meredith: —because I'm responding to that tone.

Mr. George Radwanski: As long as we're clear on what each of us is saying, then I'm very happy.

Ms. Val Meredith: I do want to ask you if you find it just as repugnant that Canada, through Bill C-42, is going to be requiring the same information from foreign airlines flying into Canada.

Mr. George Radwanski: I repeat again that what I find repugnant is not the need to collect information, nor is it the exchange of information for security purposes. What I find repugnant is the application of pressure of the sort that was applied, when the U.S. said that if they didn't get their way immediately, our planes would not be able to land, or they would effectively impose prohibited forms of harassment on our carriers. That gets in the way of dealing with the rights of Canadians in as orderly a way as possible, and I would prefer that our laws be enacted—particularly when we're dealing with an ally—in a spirit that reflects the friendship between us and that ally, rather than under that kind of pressure. You may disagree. You may think it's a very good way for our laws to be made, but I don't.

• 1620

Ms. Val Meredith: Well, we spent two days in Washington dealing with officials, and I don't recall any of them saying our planes couldn't land if we didn't pass this legislation.

The Chair: Thanks, Val. You're over by three minutes.

Mr. Alcock.

Mr. Reg Alcock (Winnipeg South, Lib.): Perhaps you could just clarify a couple of things for me, Mr. Radwanski. I'm trying to understand something when I read this amendment of yours, which has not been passed. The bill refers to the Aeronautics Act and the Personal Information Protection and Electronic Documents Act. Does the Aeronautics Act refer to the Privacy Act in any other way? Just to enlarge upon that question, if it may be helpful, are the actions of the airlines not controlled by the Personal Information Protection and Electronic Documents Act?

Mr. George Radwanski: Are they controlled by that? Yes.

Mr. Reg Alcock: Because they're now in the private sector, theoretically.

Mr. George Radwanski: Yes.

Mr. Reg Alcock: So is there any other reference to the Privacy Act in the Aeronautics Act?

Mr. George Radwanski: To be honest with you, I've not studied the Aeronautics Act. I could find that out for you, but I don't have that information at my fingertips.

Mr. Reg Alcock: Yes, I'd appreciate it if you would.

If I understand your amendment—and I'm sorry, but I fight being a lawyer, so I don't read these things that well—you would insert the following as proposed subsection (2) of proposed section 4.83:

No information provided under subsection (1)

—and that would be information that is required by the laws of a foreign state—

to a competent authority in a foreign state may be collected

—I understand that to mean no information that has been provided to a competent authority in a foreign state, so we're talking about the information that's described in the regulations now—

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...

What you're saying is that you can't open up a back door.

Mr. George Radwanski: Exactly.

Mr. Reg Alcock: You can't send it offshore and then get it back in some other form.

Mr. George Radwanski: Exactly. All kinds of information sharing agreements are in place, and you don't want the stuff coming in through a back door for purposes completely different from security or defence or public safety.

Mr. Reg Alcock: That makes sense.

Either you or whoever drafted this felt it was necessary to refer to section 3 of the Privacy Act, rather than using some tool within the Personal Information Protection and Electronic Documents Act. Can you explain why that was so?

Mr. George Radwanski: It wasn't me. My recommendation was in the letter I sent to the minister. It said:

No information provided to a competent authority of a foreign state under subsection (1) may be collected from that foreign state by the government of Canada or an institution thereof unless

(a) the information is collected for the purposes of protecting national security, public safety or defence, and

(b) the information is not collected, used, or disclosed for any other purpose.

Rather than saying “Government of Canada or an institution thereof”, for whatever reason, the drafters thought it should be the definition of what is subject to the legislation in section 3 of the Privacy Act. But that doesn't really change a great deal, quite honestly.

Mr. Reg Alcock: No, it's just that I misunderstood you when you said it was your amendment. I thought you drafted it, but we'll question the department on that.

Mr. George Radwanski: They just wanted it a little narrower than “Government of Canada or an institution thereof”, I guess. it excludes, for instance, crown corporations, not that they're wildly pertinent.

Mr. Reg Alcock: Coming to the regulations, I'm always trying to relate things back and forth. The thing that kicks off the request for information is the law of a foreign state. Although you're comfortable with it, what the government has done with Bill C-44 is hand over the further adjustment of this to Order in Council. The only state listed in the regulations or in the amendments at this point is the U.S., I believe—at least, in the documentation that I have here.

• 1625

Hypotheticals are always difficult, but if a Muslim government someplace—just to take an example given the current tense context—passed a law that said all people coming into their state had to give evidence of their religious background, an Order in Council change would be sufficient to cause that to become Canadian regulation.

Mr. George Radwanski: No, not unless an airline was collecting that information. First of all, there would be a real issue as to whether or not it could collect that information in the first place, which is a different set of issues.

But you are correct. The danger of adding elements of information that might not be innocuous is there when it's done by regulation. For instance, in some earlier drafts of various preclearance materials before this, it was all the elements of information possessed by an airline. In the second category, that would have included, for instance, dietary preference specified on booking a reservation.

Mr. Reg Alcock: Yes, well, there we are.

Mr. George Radwanski: If you order kosher, there's a certain inference. Quite frankly, though, it could be a misleading inference, because I've certainly heard of some people who order kosher meals simply because they think the food is better. But that, for instance, would be highly sensitive personal information, and if one were to say it was any information in the possession of an airline more broadly, and if that kind of thing were to be added, it could be a problem.

An additional problem that I'm a little concerned about is that the airlines have previously taken the position that it would be prohibitively expensive for them to cherry-pick from elements of information in their possession; that it's one thing for them to turn over the record that they have, which might include, for instance, such elements as dietary requests, any special requests, or any special needs; or that it's very difficult for them to winnow that out in providing this information. So I can see potential problems arising.

What can one do about it? I honestly don't know. The difficulty for an ombudsman like myself is that you have to deal in the art of the possible.

An hon. member: That's true.

Mr. George Radwanski: In the case of Bill C-36, I was able to get very important changes made that protected rights. In the case of this bill, I've been able to get an amendment preventing something that would have really put an important privacy right at risk by leaving open the possibility of backdoor uses. However, one can't always attain perfection, and one obviously can't fully dictate public policy from an ombudsman's position. But I can live with this, and I appreciate the changes that were made. Nonetheless, I do worry about a potential for problems arising through regulation.

Mr. Reg Alcock: I don't want to spend a whole lot of the committee's time on this, because it does, as you point out, affect a whole bunch of other areas in terms of the broader policy issue of regulation versus legislation. But it does seem to me, with all respect to my colleague, that there is a difference between facilitating speed on the part of a government through Order in Council as opposed to legislative change in a whole range of commercial arrangements, and facilitating changes that may impact upon the body of rights that people have. This would be one. There is a sensitivity here.

This is not necessarily germane to this particular piece of legislation in a specific sense, but in the research that your office does, I'd be interested in knowing what other countries do deal with issues of this sort, and whether or not they do have mechanisms that take them out of the legislation and put them in the hands of officials and management. For example, what would be the practice—and I don't expect you to answer this right now—in the U.K., in Australia, or in other comparable political or governmental systems? That's a question that comes up over and over again.

I'm a supporter of it when it comes to things that facilitate rapid decisions in a rapidly evolving world that are of less consequence than the body of rights we exercise, but I'm not when it comes to things that may impinge upon my rights. Having that extra protection is important.

• 1630

The Chair: Reg, you're almost out of time.

Mr. Reg Alcock: I'm just a little uneasy about another state being able to pass a law, and that the only push against that is whether or not, through the Order in Council process, somebody raises a flag. I'm not certain that's adequate.

Mr. George Radwanski: I share that concern. I'm very much on record in previous instances as having said matters that directly touch on rights should be... privacy rights are the only ones within my jurisdiction—

Mr. Reg Alcock: Some would say you're too much on record.

Mr. George Radwanski: Well, one tries to be clear and transparent.

But hose rights should be addressed by legislation, not regulation. I took that position very clearly when I was asked my views by the Ontario legislature on their proposed or purported health privacy legislation.

Mr. Reg Alcock: You were wrong in that instance, but you may have a point in other places.

An hon. member: Oh, oh!

The Chair: We'll move to Mario. We're getting a little bit into a dialogue.

[Translation]

Mr. Mario Laframboise: Thank you.

I still have the same problem. Finally, what is important is the information to be provided. That is what has to worry the population and the people you have to defend as Privacy Commissioner.

We introduced a bill and you suggested an amendment when you did not even know the nature of the information to be provided. You seem satisfied. You suggested your amendment and you are happy, but as you said earlier, you got the list of information to be provided, that will appear in the future regulations, only a half hour before our meeting began.

I would have preferred, by far, to see you suggest that the legislation itself should set out the information to be provided. That way, you would have been defending the interests of our citizens.

I am trying to understand how one can propose amendments without knowing what information is going to be provided to certain countries. We are looking at this list together. We got it this morning and you got it half an hour ago. It is not true that everyone is going to have access to my phone number. I will simply have it changed, sir, and I will not give it out anymore. That will be the end of that.

What you say is quite consistent, but the problem is that the legislation has not been amended in that way. The information required is not included and the amendments that are being proposed to us and that the government is proposing to us... I repeat that you prepared them and made a suggestion before our knowing what information would be provided to the other countries.

I have a lot of problems.

Mr. George Radwanski: I am not sure I can help you with your problem. I have already explained what I am trying to do with this. I always do my best to defend the rights of Canadians. Your opinion is that I am not doing it well enough. We do not agree, but there is still not much that I can add to my previous answer.

Mr. Mario Laframboise: Try to help me understand how we can intervene without knowing what kind of information will be provided. In any case, he is the one stuck with the problem, not me.

[English]

Mr. George Radwanski: I'll switch to English only because it has been a long day and I want to answer this very clearly.

It was very easy for me to propose the amendment that I proposed based on what the law said, because the law spoke of any information required by the laws of a foreign country. That was open-ended. There is obviously no difficulty in saying that if we may have to provide any information required by the laws of a foreign country, we should make sure at the very least that there is no backdoor channel through which this information potentially can be used inappropriately not only within that foreign country, but also within Canada, in what would otherwise be in contravention of our laws. So I didn't need to wait to see the schedule of information to recommend that amendment, because that's common sense to me.

• 1635

For the rest, I have studied. I'm a quick reader, and I did study this list and the development of information even though I only had it half an hour before the meeting. This is not the first time we've looked at issues of preclearance, so I'm aware of which of these elements are sensitive and which are not. So I'm able to give you that answer as I have.

Why am I not proposing an amendment or a suggestion that this be in the law rather than in regulations? I'll tell you why. I don't believe it would be accepted. My success as a protector of the rights of Canadians, as an ombudsman, and in getting improvements in legislation, is to pursue the art of the possible, and to go as far as I find it is reasonable and appropriate to go to try to achieve the best possible outcome, without pushing it so far that the position becomes one in which people feel there is no pleasing me because I'm not reasonable so you might as well say no to everything because I'm going to criticize everything anyway.

It's a judgment call. I think my responsibility to Canadians as an officer of Parliament is to be an effective protector of the privacy rights of Canadians, and I guess I would ask you and everyone else to trust my judgment that I do this to the best of my ability. You may not agree. Some say I push too hard and insist on safeguards that are not needed. Others might say that I should take the position of all or nothing, that you should agree with everything I ask or I'll condemn the legislation—for whatever that's worth—and take an adversary position. I have the view that I have.

[Translation]

Mr. Mario Laframboise: Did you actually say that they might have had enough of you? Are you telling me that you are afraid of losing your job?

Mr. George Radwanski: I beg your pardon?

Mr. Mario Laframboise: You said you were afraid that they had had enough of you. Are you afraid of losing your job?

[English]

Mr. George Radwanski: Of course not. I'm an officer of Parliament, and my position is untouchable for seven years.

What I am concerned about is one's effectiveness. I'm an ombudsman, so I have no powers except for the power of persuasion and the power of public opinion. I have to use those thoughtfully and carefully, because if I get tuned out—and it sometimes happens that if one does not do this kind of thing thoughtfully and carefully, one simply becomes tuned out—it becomes a case of people saying to let me say what I want, and they'll take their lumps because I'm going to criticize no matter what they do. If that happens, then I will not be effective, so I have to make judgment calls in each instance, about what it is critical to achieve; about what I have to draw a line on because it's fundamental to privacy rights; and about what would be desirable but may not be attainable. I take my positions accordingly.

Being an ombudsman is not an easy job. It involves a lot of using one's judgment, using one's common sense, and using one's skills to try to actually get a result. It's possible to do this kind of job and to simply try to make the maximum noise possible, to be crowing from the rooftops about this or that position, and one can be a very vigorous advocate. But at the end of the day, if you look at the record of accomplishments, it will be very small. All one can be is goal-oriented, asking how one can best achieve real improvements in the protection of the privacy rights of Canadians, without by any means being shy about being critical. I'm not shy, but I hope I'm also pragmatic about how I do it.

[Translation]

Mr. Mario Laframboise: In conclusion, Commissioner, you will perhaps allow me to say that as far as I am concerned—we can have different opinions on this, you and I—when legislation is passed to provide information, what is important is to set out exactly what information will be provided to people who are providing no guarantees to us concerning the ends to which the information will be used. I have a problem concerning the kind of information. That is what I have been concerned with from the very beginning. I am endeavouring to try to get the government to tell us what kind of information we will be providing. As for the rest of it, if we agree on the principle that information must be provided, then the population has to feel protected as to the kind of information that will be provided and that is very important for people's privacy.

[English]

The Chair: Thanks, Mario.

We'll go to Bev Desjarlais from the NDP, please.

• 1640

Mrs. Bev Desjarlais: Mr. Radwanski, did you indicate that in an earlier draft of this amendment, the suggestion was to have it state “Government of Canada”? Did I hear that earlier, or did I just miss that?

Mr. George Radwanski: The language I had recommended when I wrote to the minister stated, “I am therefore recommending an amendment to the Bill, with wording to the following effect:”—so I wasn't locked into specific language—

No information provided to a competent authority of a foreign state under subsection (1) may be collected from that foreign state by the government of Canada or an institution thereof...

Mrs. Bev Desjarlais: That was my point when I said earlier that I was concerned about the fact that the approach to this wasn't more clear. I saw that they could possibly give that information to other foreign states. I'm a little more concerned now that this doesn't say “Government of Canada”.

Mr. George Radwanski: No, they've only changed it to say “by a government institution, within the meaning of section 3 of the Privacy Act.”

Mrs. Bev Desjarlais: Okay, so no matter what, this will only apply to the Government of Canada. They cannot give this information.

Mr. George Radwanski: No, this exclusion only applies to the Government of Canada. In other words, what I'm saying is that the Government of Canada, as I said to Mr. Alcock, can't develop a back door, through exchange agreement, to use this information. This does not have any bearing one way or another on what happens to that information with regard to third-party governments.

Mrs. Bev Desjarlais: Is it your thought that there should possibly be an audit or a review of information that gets requested under schedule 2? Is there some way of doing that so that there can be some sort of oversight in regard to the type of information being requested, and whether or not it's being legitimately requested?

Mr. George Radwanski: Because of my oversight under the PIPED Act, I will certainly be in a position to know what information is being provided, what elements of information are being included. In fact, at a maximum, it can't be elements of information beyond those spelled out in the regulations. We know it's not more than that. If it is more than that, it's a violation of the law. It may be less than that.

Mrs. Bev Desjarlais: Should the regulations become quite broad and suggest some other things—Mr. Alcock mentioned the possibility of religion, and you mentioned the dietary requirements—will you have the ability to scrutinize that regulation?

Mr. George Radwanski: You may be assured that I will take a great interest.

Mrs. Bev Desjarlais: I do want to just comment and thank you. I imagine the position you're in is much like the position we're in, in that we're just getting this information today, recognizing that we're being told that the Government of Canada doesn't even know what the United States is going to ask for. We're in this precarious position of having to do what the U.S. wants us to do, without really knowing what the heck it is that they actually want us to do. They could request pretty much anything, so we are in a precarious position. So to suggest that we're not being bullied into a certain position in order to see legislation move quickly is, I think, quite accurate, frankly. Your suggestion and your wording in this amendment probably have saved a number of us from having to come up with something to at least give some kind of protection to Canadians.

I just have one more question, although I don't know if you're the right person to ask. I've tried to foresee where difficulties would arise with the type of information that's requested by governments when we have differing views on different governments. I don't know exactly how the legislation in the U.S. now applies to representatives of the Cuban government who might be coming to or going from Canada but are flying over the U.S. With Canada having a relationship with Cuba that is different from the one it has with the U.S., I understand that there's no problem right now as long as they don't land, but would there be a problem after this?

Mr. George Radwanski: I have no idea where to go with that, but as I said before in response to another question, my sense of this is that it is meant to provide for information provided with regard to planes whose destination is the U.S. If it's something other than that, any number of possible issues arise for any number of people, but I really wouldn't know how to help you with that.

Mrs. Bev Desjarlais: Okay, fair enough. Thanks very much.

Mr. George Radwanski: Thank you.

The Chair: André Harvey.

Mr. André Harvey (Chicoutimi—Le Fjord, Lib.): I have no questions.

The Chair: Okay, we'll go to Alex.

• 1645

Mr. Alex Shepherd (Durham, Lib.): Bev's comment got me thinking about something that has absolutely nothing to do with it, but a website called expedia.ca basically lets you order airline tickets and so forth. It's a mirror image of expedia.com. If your destination is Cuba and you're travelling from Toronto, it goes through the process but then it rejects the form. It won't allow you to actually enter the information. That's a Canadian website, but because the Americans don't recognize travel to Cuba, it's rejecting that in Canada. I thought that was interesting.

Mr. George Radwanski: It is interesting, but it's not really something on which I, as Privacy Commissioner, can really comment.

The Chair: Was that all, Alex? Do you have any more questions for the witness?

Mr. Alex Shepherd: No.

The Chair: Mario.

[Translation]

Mr. Mario Laframboise: Commissioner, you say that you are appointed for seven years and that the government appoints you. That is what you are saying?

Mr. George Radwanski: No, I am appointed by Parliament.

Mr. Mario Laframboise: Actually, we could say that it is the government.

Mr. George Radwanski: For you, it may be the same thing, but not for me. Parliament is Parliament.

Mr. Mario Laframboise: Thank you.

[English]

The Chair: Mr. Radwanski, thank you for being here today. We appreciate your input and your position. You did very well. Keep up the good work.

André.

[Translation]

Mr. André Harvey: Mr. Chairman, I would like us to go to clause-by-clause on the bill. I would like to officially move the motion that I tabled this morning which takes into account the testimony we heard at the end of the afternoon. It was circulated to everyone. So I think I can be dispensed reading it word for word. But I can read it.

[English]

The Chair: The motion is that we go to clause-by-clause.

(Motion agreed to)

(On clause 1)

[Translation]

Mr. André Harvey: I would now like to move the amendment we tabled today. All the members of the committee have received a copy.

[English]

The Chair: We have an amendment to clause 1. Is there any discussion on that amendment? Mr. Alcock.

Mr. Reg Alcock: Are any officials here?

The Chair: There are officials here.

Mr. Reg Alcock: Can we bring some officials to the table, please? I have a question or two.

Could I get an answer to my question about the Aeronautics Act? Under the Aeronautics Act, are the airlines subject to the Privacy Act in any way at all?

Mr. Sherill Besser (Senior Counsel, Legal Services, Transport Canada): The Privacy Act applies to federal institutions, which are government departments and other organizations set out in the schedule. The Privacy Act does not apply to air carriers or airlines, so the answer is no.

Mr. Reg Alcock: Then by introducing this reference to the Privacy Act, are we bringing that act into areas it was previously decided the Privacy Act would not be in?

Ms. Sherill Besser: No, we're not, because we're describing the government institutions. That's all we're doing. It's only within the meaning of section 3 of the Privacy Act, which defines government institutions.

Mr. Reg Alcock: Okay.

Proposed subsection (2) says, “The Governor in Council may make regulations”. Why is that in there?

Ms. Sherill Besser: That proposed subsection is there only for renumbering purposes.

Mr. Reg Alcock: No, I'm referring to the whole proposed subsection (2), “The Governor in Council...” I realize it's going to become proposed subsection (3) if the amendment is carried, but it's the enabling subsection that enables regulation. At whose request was that put in? Is this an instruction from the minister?

• 1650

Mr. William Elliott (Assistant Deputy Minister, Safety and Security, Transport Canada): Sir, are you referring to the proposed subsection in the current bill as printed, or to the clause that is the subject in the amendment?

Mr. Reg Alcock: I'm referring to proposed subsection (2) in Bill C-44. It says:

The Governor in Council may make regulations generally for carrying out the purposes of this section, including regulations

and then you have proposed subparagraphs (a) and (b). Where did this proposed subsection come from? What's the purpose of it? This wasn't a request made by the other government, was it?

Mr. John A. Read (Director General, Transportation of Dangerous Goods, Safety and Security, Transport Canada): You have a choice of doing two things in the law here. One would be to say that you give permission to the airlines to give any data to any country that asks for it whenever it asks. The other side of it is to put some controls on it and to say you give the airlines permission to give the data identified herein to the countries identified herein. That's why we have the regulations that would, in one schedule, name the countries to which the data can be passed, and the data itself that can be passed.

Mr. Reg Alcock: So you see this as a way of providing a second step, should a country decide to collect more information. If proposed subsection (2) wasn't in the bill, presumably they could make any law and we would comply, right?

Mr. John Read: If proposed subsection (2) were not there, proposed subsection (1) would have to give the authority if you wanted this to work. It would have to give the authority to the airline to give any data that any country asks for under one of its laws.

Mr. Reg Alcock: Or—

Mr. Paul Szabo: Within in control of the airline.

Mr. John Read: Well, yes. We can't give them permission to give data they don't have.

Mr. Reg Alcock: It could have been worded to say that. It could have been worded to say, “will provide the following list of information”.

Mr. John Read: Yes, but we don't know which countries and we don't know which information.

Mr. Reg Alcock: No, we do. We know it's the United States, right?

Mr. John Read: No, this will allow the United Kingdom to make a similar request without this having to come back to Parliament. This will allow requests by any foreign state that has a law requiring the data. Under the regulations, we can then add that country's name to the list of countries to which the data can be provided.

Mr. Reg Alcock: I understand what it does, but are you anticipating that to happen?

Mr. John Read: We would not be surprised if it happened. We don't have any requests at the moment, but we certainly would not be surprised to find that if the Government of the United Kingdom determined that it wished to know who is going into that country...

Mr. Reg Alcock: I don't want to get on guys too much, but it does strike me...

Mr. Paul Szabo: Should we come back to you?

Mr. Reg Alcock: Yes, you go ahead.

The Chair: Val.

Ms. Val Meredith: In response to the question Mr. Alcock posed to you, the only purpose of proposed subsection (2) is to allow you to add more countries to the legislation.

Mr. Reg Alcock: And more information.

Ms. Val Meredith: Yes, more information. Your response was that if it's not in here, you would have to come back to Parliament. I would suggest to you that Parliament may be concerned with what countries you may be including in this. We appreciate and accept the fact that the United States has requested it. We're comfortable with that. I'm comfortable with that. If you all of a sudden want to include Russia or China or some other country, though, I may want that discussion to be in Parliament and not allow, quite frankly, some bureaucrats to add it to a list and pass it through Order in Council. I would almost suggest that either you legislate the regulations you have before us, or you just strike off proposed subsection (2).

Mr. William Elliott: I have two comments if I may, Mr. Chairman. First of all, proposed subsection (1) refers to information being provided subject to regulations, and proposed subsection (2) is the general regulatory making power. Secondly, it's not bureaucrats who would make regulations, but the Governor in Council.

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Ms. Val Meredith: So you're saying the Governor in Council sits around and makes up the regulations.

Mr. William Elliott: The Governor in Council makes regulations, yes.

Ms. Val Meredith: The Governor in Council approves them.

[Editor's Note: Inaudible]

An hon. member: —

Ms. Val Meredith: The minister designs the regulations?

[Editor's Note: Inaudible]

An hon. member: —

Ms. Val Meredith: Well, let's be honest about this.

The Chair: Mr. Szabo.

Mr. Paul Szabo: With regard to this amendment, there was an exchange with Mr. Radwasnki about the whole idea that Canada cannot get this through the back door. If it came to pass that the airlines were taken out of the loop in terms of passenger screening techniques, and if responsibility for safety and security came more fully, more comprehensively, under the federal government—maybe an agency, for instance—it would be fairly reasonable that such an agency would in fact collect this information in its own right, because it would have access to virtually all the information by being able to look at tickets, by being able to look at passports, by being able to look at visa documents, and a whole bunch of other stuff. In other words, by simply changing the instrument of safety and the security mechanism or structure, the intent of this amendment could be mooted, is that not right?

Mr. John Read: The people doing screening now don't have access to passenger name records. The people who screen you as you go through the portal, the ones with the wands and running the thing your bags go through, don't have access to passenger name records.

Mr. Paul Szabo: They don't look at your ticket?

Mr. John Read: They can look at your ticket, but they don't necessarily look at your credit card number, which was an issue raised earlier.

Mr. Paul Szabo: It's probably on the ticket, isn't it? It would show who it's charged to.

Mrs. Bev Desjarlais: Your first name isn't on the ticket.

Mr. Paul Szabo: Yes it is.

Mrs. Bev Desjarlais: It's on the ticket, but not on the boarding pass. They look at the boarding pass.

Mr. Paul Szabo: I understand that, but it doesn't necessarily mean that if responsibility for security or whatever they do now is taken from the airlines, the security procedures or processes would not incorporate a second look at a passport, or scanning it and taking other information.

The Privacy Commissioner is concerned about the Government of Canada having information on all the people who are on an airline. That is clearly visible at a screening point. Although there presently isn't a process in which it's actually recorded, that's a technicality. Scanning equipment easily could capture all of this information.

Mr. John Read: Is there a question?

Mr. Paul Szabo: Would that not frustrate the concern the Privacy Commissioner had about Canada actually having access if a government agency was responsible or took responsibility for national security at airports?

Mr. John Read: The part that is important is that all of the information that is gathered when a reservation is made... if you gave the government agency the reservation system plus security, then the government agency could answer all those questions.

Mr. Paul Szabo: Okay, thank you.

The Chair: Bev.

Mrs. Bev Desjarlais: Actually, I'm just wondering whether or not this is the place to have an amendment that would include the schedules as part of the legislation.

The Chair: We have a motion on the floor already for one amendment. You may want to wait to see what happens to his amendment, and then we'll deal with yours after that.

Mrs. Bev Desjarlais: Sure.

The Chair: Are you ready for the question?

Mr. John Cannis (Scarborough Centre, Lib.): Can I just ask one quick question?

The Chair: Yes, go ahead, John.

Mr. John Cannis: You mentioned the reservation system. To my understanding, there's a central reservation system right now when somebody goes to buy a ticket or book a reservation, and the reservation system is controlled by the airline companies. Is that where this information will remain, or will the government authorities wanting to access this information... There's going to be access from this Reservec—I think that's what it's called... If I go to a ticket agency or to a travel agency and I want to buy a ticket to travel somewhere in the United States, there's a central reservation system. A service is being provided for the airline, so they use this central reservation system, this databank. Is it there that the government authorities will access the information? How secure is that reservation system?

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Mr. John Read: We're talking about Bill C-44, and there is no accessing of records by government agencies in it. This bill is a permissive bill that allows the airline industry, the airlines flying into the U.S., to provide that information to the Commissioner of the United States Customs Service. That's what is presently before us.

If another country gets involved... Perhaps Her Majesty's Commissioner of Customs and Excise would also require certain information in the United Kingdom. Again, it would be the airlines who would pass it directly to that person, but not through us, not through Transport Canada.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Shall the clause carry as amended?

Mrs. Bev Desjarlais: No.

The Chair: Oh, yes, we'll deal with your amendment now, which means we have a further amendment.

Mrs. Bev Desjarlais: I'm trying to quickly write it out.

An hon. member: Is it bilingual?

Mrs. Bev Desjarlais: Given that the government doesn't really know what the regulations are, I'm trying to figure out how to word it.

Mr. Paul Szabo: Is it clause 1 that you want to amend?

An hon. member: There's only one clause.

Mrs. Bev Desjarlais: The amendment could be proposed paragraph 4.83(3)(c), that the attached schedule of regulations be included as part of the legislation.

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• 1705

Mr. Paul Szabo: Mr. Chairman, the member has stated the intent. Rather than dealing with the specific wording, I would suggest that we perhaps address the stated intent that the schedules be incorporated into the legislation, and that we deal with that as a motion. If it passes, we can then look at the specific wording.

The Chair: Is that fine? Yes? Do you want to make the motion then, Bev?

• 1705

Mr. Paul Szabo: I think the member has moved that we incorporate schedules 1, 2, and 3 in the legislation, and it would be so indicated by appropriate language, probably in a proposed paragraph (3)(c).

Mrs. Bev Desjarlais: Yes.

Mr. Paul Szabo: That's the motion.

The Chair: Is there any discussion on the motion?

Mr. Marcel Proulx (Hull—Aylmer, Lib.): Is the intention to remove what was paragraph 2—which is now 3—saying “The Governor in Council may make regulations”?

Mrs. Bev Desjarlais: No, that stays.

Mr. Marcel Proulx: That stays.

Mrs. Bev Desjarlais: There's no intent to remove it.

Mr. Marcel Proulx: How would it work as far as adding additional countries are concerned, for example?

Mrs. Bev Desjarlais: They're still able to make additional regulations, but the schedules—

Mr. Marcel Proulx: What's the use of throwing these in?

Ms. Val Meredith: Because they're here.

Mr. Marcel Proulx: Okay.

The Chair: The clerk has a question.

The Clerk of the Committee: Mr. Szabo, when you say you want to have the wording done later in regard to adding schedules 1, 2, and 3, are you referring to the texts of the schedules that are in the package I have right now?

Mr. Paul Szabo: We have a generic motion on the table. Subject to this motion being accepted, the intent would be that language to the effect of—

The Clerk: Okay, so we would—

Mr. Paul Szabo: We would get into all of the details of that if this motion is passed.

The Clerk: Okay, my question was about not just having schedule 1 blank, schedule 2 blank, and schedule 3 blank, and after that—

Mr. Paul Szabo: No, full detail is what the member wants.

The Clerk: Thank you.

(Motion negatived)

(Clause 1 as amended agreed to)

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill as amended?

Some hon. members: Agreed.

The Chair: We're adjourned until seven o'clock tonight.