Hon. Wilfred P. Moore:

Honourable senators, I rise today to speak to Bill C-42, An Act to Amend the Aeronautics Act, which seeks to create an exemption under the Personal Information Protection and Electronic Documents Act so that airlines are enabled to provide information to the United States of America when flying over its airspace in compliance with the U.S. Secure Flight Program's oversight provisions.

We are dealing with the right of the United States to defend its soil and citizens in the wake of the terrorist attacks of September 11, 2001. The events of that day completely and irrevocably changed relations between the United States and the rest of the world and, yes, Canada's relations with our neighbours to the south have been altered forever as well.

From that day on, security has played a major role across the board in the relations between our two nations. From border issues, to trade and to travel, security will play a role in any negotiation that takes place between our two countries. Bill C-42 is not a surprise in that regard.

In fact, cooperation in civil aviation between Canada and the United States dates back much further. Canada is a signatory to the Convention on International Civil Aviation, which came into being on April 4, 1947. Article 1 of the convention states:

. . . every State has complete and exclusive sovereignty over airspace above its territory.

Canada has recognized the sovereignty of the United States over its airspace since 1947. That has been a fact for a long time. Part of that recognition of sovereignty is the right of the United States to ask for information regarding the people who are flying to the United States or through its airspace to arrive in another country. For reasons of security and in light of the events of 2001, this is completely understandable.

But, personal privacy has become a major issue with the rise of new technology and the inevitable globalization which has resulted. Canadians expect full protection of the privacy of their personal information.

In light of the massive shift towards security in the recent past, the balance between these two issues of privacy and security is a real issue. How does one strike a healthy balance?

Civil liberties groups state that personal privacy has primacy over the security issue and their points are valid. At the other end of the spectrum, Canadian airlines believe that closing American airspace to Canadian civil aircraft is not a very balanced business solution, to say the least.

In the committee hearings in the other place, the Privacy Commissioner of Canada, Jennifer Stoddart, expressed her concern with Bill C-42, but she did not feel the legislation would break Canada's privacy laws. She expressed her belief that, with the passing of Bill C-42, the Canadian Government has a responsibility to work with the Government of the United States and the airline operators to "minimize the impact," and pointed out four areas of concern.

First, ensure that the minimal amount of personal information is disclosed to American authorities. The U.S. Secure Flight Program requires only three pieces of information: the passenger's full name, date of birth and gender. In particular, Transport Canada should work with the airlines to avoid excessive disclosure of personal information. On this point, we note that our Aeronautics Act currently allows the Governor-in-Council to make regulations respecting the type or class of information that may be provided to a foreign state.

Second, question the retention periods of seven full days for no match, and seven years for potential matches, to fulfill the commitment from the U.S. to collect personal information only as necessary for airline security.

Third, negotiate robust and accessible redress mechanisms with the U.S. Department of Homeland Security for Canadians who are prevented from flying as a result of the U.S. Secure Flight Program.

Fourth, make Canadians aware of the Secure Flight Program and Canada's Passenger Protect Program to minimize the confusion that may result from the operation of the two programs.

Of course, the Liberal Party has great concerns with this bill as well. That is why an effort was made to strike that balance between privacy and security. The result was several amendments which have strengthened this bill and made it more effective. The Liberal members in the other place amended this bill in three ways.

First, airlines and travel agencies will be required by law to inform passengers that data about them will be transferred before they purchase their airline ticket.

Second, in the original version of the bill, other countries could be added to the legislation by order-in-council. The legislation now restricts the data transfer to the United States only.

Third, the legislation is now subject to oversight by the members of the committee of the House of Commons responsible for transport matters. The measures will be reviewed two years after coming into force, and each subsequent five years.

These changes were critical to finding agreement on this legislation in the other place. Awareness by the airline passenger as to the transfer of personal information provides transparency. The restriction on adding further countries to the law in the future will require that separate agreements will need to be entered into between Canada and these other countries.

The oversight provision will allow the members of the committee responsible for transport matters of the other place to review the manner in which this legislation is functioning and thus provide some oversight by Canadians on a matter of such delicate balance. I do not know why the oversight provision does not include the Senate of Canada, it being the other legislative body in our bicameral Parliament, particularly on matters of such high importance as dealing with the privacy and security of all Canadians.

The Standing Senate Committee on Transport and Communications should also be an oversight body. As an aside, I wish to add my own thoughts to Commissioner Stoddart's point that the Governments of Canada and the United States must work together to minimize the effects of Bill C-42 and other security matters between Canada and the United States.

From my experience, communication is key. We are living in a world where information can be disseminated, read and become "a fact," regardless of its truth, in a matter of moments. Ensuring this information is accurate and honest should be one of the issues we deal with seriously.

As recently as two years ago, the Secretary of the Department of Homeland Security of the United States was repeating the myth that the 2001 terrorists entered the United States from Canada. We know this is not true, but the upper echelons of the United States government, indeed the agency with which we would deal on matters of security between our two nations, was unaware of the facts. That falsehood was repeated last week by senior Senator John McCain of Arizona.

This complete failure of communication results in Americans' distrust of Canadians and our diligence in maintaining security along our mutual borders at a level acceptable to the United States. We need to be just as diligent in maintaining the level of communication between our two nations, at least at the same level as our security efforts. We try to do this in a non-partisan way through our Canada-United States Inter-Parliamentary Group. We have had success in explaining to our American counterparts Canada's position on various issues, but our efforts need to be continuously built upon every day. We saw that during our visit last week to Washington with the many new members of Congress who had little or no knowledge of Canada's important relationship with their country.

I believe my thoughts are most appropriate in view of the declaration made between the President of the United States and the Prime Minister of Canada on February 4, 2011, regarding a shared vision for perimeter security and economic competitiveness. As this declaration is explored and advanced, I expect the same issues of privacy and security will be paramount. In all of these discussions and negotiations, Canada must insist upon reciprocity from our American counterparts as well as full respect for the sovereignty of our territory.

In closing, I would like to salute the efforts of my colleagues in the other place for their efforts at cooperation and for the responsibility they have shown in striking the balance between security and privacy. It is not an easy feat to achieve.

Recent Statements from Liberal Senators