Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 12 - Evidence, December 2, 2010
OTTAWA, Thursday, December 2, 2010
The Standing Joint Committee for the Scrutiny of Regulations met this day at
8:32 a.m. for the review of statutory instruments.
Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs)
in the chair.
SOR/2007-82 — IDENTITY SCREENING REGULATIONS
The Joint Chair (Mr. Kania): Good morning. I welcome Laureen Kinney,
Director General for Aviation Security with Transport Canada. Ms. Kinney, do you
have an opening statement you wish to make?
Laureen Kinney, Director General, Aviation Security, Transport Canada:
Yes. Good morning. I am here in response to your letter of October 22, 2010, in
reference to the Identity Screening Regulations and the Passenger Protect
Program. Please excuse me because my remarks are a little long, but I wanted to
respond to the questions that you raised in the letter.
I will give a brief program overview. First, I think it will be helpful to
set out some background and explain the statutory context in which the Passenger
Protect Program was developed. In 2004, Parliament amended the Aeronautics Act
under Bill C-7 to include two new sections: section 4.76 and section 4.81.
Section 4.76 established authority for the minister to make emergency directions
as part of a suite of regulatory instruments to address multiple aviation
security contingencies including regulations, interim orders and security
measures. Section 4.76 provides a general and broad power to the minister in the
face of an immediate threat to aviation security:
. . . the minister may direct any person to do, or refrain from doing,
anything that in the opinion of the minister it is necessary to do or
refrain from doing in order to respond to the threat. . . .
Section 4.81 authorizes the minister to require information in air carriers'
control in two particular situations: First, where there is a specific threat to
a flight, the minister may request that the air carrier provide information set
out in the schedule to the Aeronautics Act; and second, where the minister
requires an air carrier to provide information in its control about a particular
person who may pose a threat. I will describe this situation more fully later in
With this broad authority, came important responsibilities. The department is
of the view that Parliament provided this power to the minister to ensure that
the minister was properly equipped to address emerging and often unforeseeable
risks. Given what is at stake in aviation security — the lives of passengers,
Parliament's approach to provide strong and flexible powers is appropriate. At
the same time, it was recognized that these powers needed to be exercised
judiciously, only when necessary and on the best advice possible.
The Passenger Protect Program was established in June 2007 from this
perspective. It was designed to assist the minister in exercising the
authorities of sections 4.76 and 4.81 as effectively and fairly as possible. The
program was established in accordance with the act and combines, as is the usual
case for a government program, regulations and administrative processes to put
in place a mechanism for preventing persons who pose an immediate threat to
aviation security from boarding a flight, among other possible actions that
might be taken by other agencies and departments.
The Passenger Protect Program was designed after extensive consultation with
stakeholders, including valuable input from the Office of the Privacy
Commissioner. For example, the Identity Screening Regulations contain strict
provisions on the confidentiality of the Specified Persons List; the program was
the subject of an intensive privacy impact assessment; and Transport Canada
carries out regular monitoring of domestic and foreign air carriers' compliance
with the Identity Screening Regulations, and pays particular attention to their
handling of protected information.
The Passenger Protect Program complements other layers of our system,
including the physical screening of passengers and their bags. The program
focuses specifically on our core mandate, aviation security. From its inception,
it was viewed as a last resort where other mitigation measures will not address
a perceived risk. Our experience with the program proves that this view was
appropriate. Since the program was put in place, over 190 million passengers
have flown on more than 6 million flights, and only a single emergency direction
has been issued.
The application of the Passenger Protect Program and the supporting Identity
Screening Regulations involve a partnership between government agencies and air
carriers. To describe the program briefly, Transport Canada, using information
from the RCMP and the Canadian Security Intelligence Service, provides a
recommendation to the Minister of Transport, Infrastructure and Communities to
add the name of an individual to a list who may pose a threat to aviation
security. The list of individuals who may pose a threat — the Specified Persons
List — contains the name, date of birth and gender of each specified person, and
is provided to air carriers using a secure system.
It is important to note that a continuing feature of the program is the
restriction of names considered for placement on the Specified Persons List to
those names where information suggests that they may pose an immediate threat to
aviation security, should they arrive at an airport to board an aircraft.
This policy-based limitation to the Specified Persons List is in keeping with
the program intentions, which were consulted on broadly, and reflect the
government's intention that a Canadian list of this nature would relate only to
individuals who pose an immediate threat to aviation security and would be
reviewed a minimum of every 30 days. For greater clarity, I emphasize that the
determination of whether any individual may pose an immediate threat to aviation
security is made only at the time of boarding, if ever.
Under the Identity Screening Regulations, air carriers are required to check
each passenger's name against the Specified Persons List prior to issuing the
boarding pass. When a passenger's name, date of birth and gender match with an
entry on the Specified Persons List, the air carrier contacts the Transport
Canada operations centre, which is open 24/7.
An officer on duty will determine then whether there is a match between the
passenger and a specified person. If there is a match, and in consultation with
the program manager, discussion of the specific case, the latest available
information and the travel itinerary, if they are of the opinion that there is
an immediate threat to aviation security, the officer may make an emergency
direction that either prohibits the person from boarding the aircraft or
requires another action necessary for aviation security. The air carrier is
provided with two emergency directions, one of which prohibits the air carrier
from allowing the person to board, and the second, which the air carrier
provides to the individual, prohibits the individual from boarding.
As with any government decision, the decision may be reviewed by the Federal
Court in accordance with section 18.1 of the Federal Courts Act. However,
Transport Canada also considered that it would be useful to provide individuals
with a less formal means of review. The department established the Transport
Canada Office of Reconsideration for this purpose. Any person denied boarding is
provided with contact information of the Office of Reconsideration and basic
open-source or non-sensitive information that provides the individual with
information as to why they have been denied boarding.
To review the case, the Office of Reconsideration engages independent
advisers who make a recommendation to the minister on whether the decision to
specify the person should be reconsidered. Persons affected may also apply to
the Federal Court for judicial review.
In response to the specific concerns that you have raised, the program has
now accumulated over three years of experience in operation, and has encountered
real-life situations that can help us to provide context and examples of the
program in operation in response to some of your concerns.
In your letter, your first concern was that section 7 of the Identity
Screening Regulations does not explicitly compel Transport Canada to disclose
the reasons for issuing an emergency direction and why the individual may wish
to contact the Office of Reconsideration.
While we agree that these provisions could be incorporated into the
regulation, in our view expressed in previous correspondence on this subject, we
indicated that we have adopted an administrative approach, which is consistent
with the Cabinet Directive on Streamlining Regulations and normal government
Importantly, the program was designed to ensure that it respects Transport
Canada's legal obligations to act fairly. As it stands, our administrative
process ensures that individuals affected by decisions are provided with all the
relevant information that Transport Canada is legally entitled to disclose.
With respect to the time within which a recommendation by the Office of
Reconsideration and decision by the minister would be made, an administrative
timeline objective was publicly set at 30 days. Each case is likely to be
different in a specialized program like this one, and the department has tried
to create a flexible, speedy and inexpensive venue for anyone affected.
The only reconsideration case related to the Passenger Protect Program to
date was complex and took over one year to conclude. In that case, the
independent advisers took five months to prepare their recommendation. Part of
that delay may have been caused by the fact that it was the first
reconsideration case, but it seems likely that 30 days is optimistic, given the
complexity of the issues that are likely to arise.
For example, the initial concept of the Office of Reconsideration was
modified throughout the final regulatory consultations to allow for such
processes as face-to-face meetings and the use of outside contractors. Thirty
days is likely unrealistic, except in a case where an individual may have been
mistakenly identified as a positive match on the Specified Persons List.
Your second concern related to the review process lacking a legislative
basis. The spirit and intent of establishing the Office of Reconsideration was
to enable members of the public to challenge a decision made by the Minister of
Transport without having to go through the time and expense of going to Federal
Court, which is the ordinary alternative had this review mechanism not been put
In the department's view, the present structure is well-suited to the
particular scheme. If the review processes were set out in regulation or law, it
would be rigid. In addition, it is likely that affected individuals would be
required to follow it, and this may not be appropriate in every case. There may
be cases where a person will want to go directly to Federal Court. In other
cases, another process may be appropriate.
For example, depending on the information used, the Security Intelligence
Review Committee, SIRC, the RCMP public complaints commission or the Canadian
Human Rights Commission may be best suited. Given the small number of
anticipated cases, and given the difficulty in predicting the nature of the
issues that may arise, it is appropriate to provide options but not to limit
options for people concerned.
Where legislation provides for procedural fairness in an administrative
mechanism, an affected person is afforded the degree of fairness that is
legislated. Where legislation does not set out parameters of the fairness
afforded, common law requirements establish the requirements for procedural
fairness. The minister takes his responsibilities, including carrying out common
law requirements in regard to the Passenger Protect Program, very seriously.
Again, I suggest that the department made a significant effort to go beyond
the minimums required by legislation in creating an appropriate administrative
process to provide assurance that these authorities would be exercised
diligently, and the department has also taken these steps to create a more
transparent program. The results of the only Office of Reconsideration process
to date certainly support the independence of the process.
As a review mechanism, the Office of Reconsideration facilitates the needs of
both the individual and the government. In practice, in the one case to date,
the Office of Reconsideration has been able to balance the government's need to
protect sensitive information by having independent advisers with appropriate
security clearances review classified and unclassified information while
enabling the individual to provide input and submissions so that an impartial
review of the decision that was made by the minister can take place.
Your letter also suggested that the program strays outside of what was
intended by Parliament. I will return to the original intent of the program.
It is Transport Canada's position that the department used clear and specific
authorities in the Aeronautics Act, clearly framed by Parliament and supported
with regulation and administrative processes, as is the normal approach for
government programs to establish the Passenger Protect Program.
Although the Passenger Protect Program was not specifically envisioned at the
time the amendments to the Aeronautics Act were passed, the clearly outlined
example of the use of authorities under section 4.81 related to the formation of
a watch list of persons who could pose a threat to transportation security.
Clearly, as only one person has been prohibited from boarding a flight since
2007, the primary function of the list is of a watch list.
While some examples of the associated action that might be taken, such as an
inspector's authority to require certain actions, were included in the
discussions on the bill, Parliament made the decision to confer broad
authorities under section 4.76. There can be little doubt that not only does the
minister have the authority to act when he believes that aviation security is at
risk, but that he has a duty to do so.
The Passenger Protect Program is designed to ensure that the powers of
section 4.76 are exercised judiciously. The power may be used in exigent
circumstances to deal appropriately with an immediate threat to aviation
security. The Passenger Protect Program is about identifying threats and
ensuring that appropriate measures can be taken. Importantly, these issues are
now before the court and we will have a definitive answer in the near future.
The department is confident that the process will be upheld.
With respect to your third concern that an individual may not know where or
with whom they may seek redress, I believe that the department has taken
unusually comprehensive steps to inform people of all the possible avenues for
recourse. While departments would ordinarily simply advise persons affected of a
decision of their right to seek review by the Federal Court, Transport Canada
created the Office of Reconsideration and advises people of the process, the
Federal Court and a number of other offices or agencies that may be relevant.
The role of the Office of Reconsideration is clearly set out on their
website. It explains that the office is there to provide an efficient process
for people to ask for a review of the decision to include their names on the
Specified Persons List. The other options are characterized that an individual
may lodge a complaint to the appropriate body if they believe that being
specified was the result of misconduct of one the agencies involved or that they
may pursue the matter in Federal Court.
As mentioned previously, the process allows for an affected individual to be
provided with sufficient information to understand the rationale for the
decision in any foreseeable situations. It would be inappropriate, in our view,
for the department to provide advice to the individual on what might be the most
appropriate recourse steps to take in any particular situation, each of which is
likely to be unique.
With respect to an individual knowing which recourse to pursue, I will again
use the example of the case before the courts. The individual was provided with
information and the reason why an emergency direction was issued. As the court
record reflects, the individual was aware that CSIS was involved and made a
complaint to the Security Intelligence Review Committee, in addition to
initiating a judicial review before the Federal Court and seeking review by the
Office of Reconsideration.
In short, given the narrow focus of the program on individuals who are known
or suspected to have a history, capability or intent to target transportation,
and specifically aviation, a specified person who is made aware of information
by way of the emergency direction will have sufficient information to determine
the recourse options open to them.
In closing, I note that Transport Canada will be consulting on the Identity
Screening Regulations, in any case, over the next year, in accordance with the
requirements for the recent interim orders made by the minister.
This is an opportune time to consider your perspectives and comments, as well
as for me to present additional information for your consideration in these
matters. I look forward to today's discussion and am ready to respond to your
questions to the best of my ability.
The Joint Chair (Mr. Kania): We will move to the question phase. As
this committee is non-partisan, we will not go by parties but will give everyone
interested an opportunity to pose questions.
Ms. Jennings: Thank you for your presentation this morning. As you
know, the concerns of this joint committee are that, given the design of the
program and the actual playing out — the objectives that are sought within this
program —contrary to, I believe, what I understood you to say, all parts of that
program do not appear to come out of express statutory authority.
While you conduct your consultation, will you also consult on the possibility
of legislative amendments that will provide clear legal authority to implement
this kind of program in all its aspects, including the identity screening piece,
and your administrative review process, which a person can avail themselves of?
Ms. Kinney: I suggest that, in terms of my statement, I can perhaps
clarify that the suggestion is not that the details of this program have been
laid out in the Aeronautics Act. I agree that is not the case. However, the
provisions and the authorities that are exercised in the program are laid out
clearly in terms of the authority for the list and the authority for the
emergency direction, which are two different activities that occur.
My other point is that, as we go forward with consultations, I suggest as
well that the debate around the degree to which any particular program should be
laid out specifically with its administrative processes and regulations is
something that, in normal cases, is not always done. There is not always a
detailed layout of every program that all authorities are used for. These
authorities are general authorities that are used in a specific case, and
administrative processes are a part of doing that.
The choices to which administrative processes to put in regulation or
legislation is something we will take into consideration; the comments made
here, and the discussion and consultations. We will look at what is appropriate
to put into the regulations as we go forward in those consultations.
A decision has not been made, that I know of yet, to go forward with
consultations on the legislative aspects. I think that is something I have to
take back to the minister.
Ms. Jennings: The concern of this committee, in terms of the
administrative review process, is that there does not appear to be any
legislative or regulatory authority to put into place that administrative review
The question I am asking you is whether, as part of your consultations, you
will raise that issue with the stakeholders you will be consulting with — with
the experts that you are consulting with — to ensure that that regulatory and
legislative authority is in place.
It is not a bad thing to have an administrative review process, but clearly
it must be out of clear legislative or regulatory authority. It appears that
neither exist for the administrative review process.
In your statement, on page 12, second paragraph, you yourself say that ``Your
second concern related to the review process lacking a legislative basis.''
You go on to say that at no time do you challenge the fact that there is no
legislative basis for that particular review process. In the last paragraph on
page 12 you say:
In the department's view, the present structure is well suited to the
particular scheme. If the review process were set out in regulation or law,
it would be rigid.
I must say, as a lawyer, I am astonished to hear a government department
saying they would prefer to operate without any legislative or regulatory
authority for an administrative review process that has been put into place. The
review process could be good, but it must flow from statutory instruments,
either the law or the regulation.
That is why I am asking you again, as part of your consultation, when you
meet with experts to discuss this entire program, will you also discuss with
them how to ensure that the administrative review process that has been put into
place moves forward, but with a legal basis to it?
Ms. Kinney: I think, as I said, our view is that there is an
appropriate legal authority to have administrative processes and seeking
guidance for the minister in the decisions that he is taking. Certainly, there
is no direct legislative direction in the authorities for the emergency
direction or a specified person that puts in place that legislative authority,
as you pointed out.
I can definitely say that will be part of the discussions we take, the
appropriate review and recourse mechanisms. They will be part of our discussion.
They are a key part of a program of this nature.
Ms. Jennings: I will not belabour the point.
Mr. Lee: On a minor point of order, we do not often have witnesses
before the committee, and I am hoping members will allow counsel an opportunity,
perhaps at the mid-point of our session, to ask questions if he feels he can
help the committee.
The Joint Chair (Mr. Kania): I spoke to counsel about it, and his
preference was to ask questions closer to the end.
Senator Harb: On page 6 of your presentation, you mention that ``over
190 million passengers have flown over 6 million flights and only a single
emergency direction has been issued.'' Is that one case where this person
arrived at the airport, or did this person fall through the cracks and not be
notified? In other words, how many passengers, for whatever reason, tried to buy
an airline ticket and were told they were on some sort of a list, or would they
be told they are on a list and therefore cannot buy a ticket?
As well, on page 7, you say, ``I would emphasize that the determination of
whether any individual may pose an immediate threat to aviation security is made
only at the time of boarding, if ever.'' Why is that? Why would this
determination not be dealt with at a much earlier stage?
Ms. Kinney: To answer your first question first, the process that is
followed requires that the air carrier cannot issue a boarding pass to the
individual if their name is a match to a name the air carrier has in their
secure records as a person on the Specified Persons List. That means that
someone who was perhaps checking in off-site or at a hotel would not be able to
obtain their boarding pass. They would be directed to go to the check-in
counter. At the check-in counter at the airport, they would attempt to check in,
and at that point there would be a discussion normally with our 24-hour duty
Then, depending on the decision, the confirmation, first, that this person
was a match, the confirmation, second, that the person was not a false match —
that their data matched but they were not in fact the person, and we have other
information on file in our records in that 24-hour centre to be able to better
verify more details about that person and based on what the air carrier may have
in their records about the passenger — then we verify that this is the correct
person, as far as we can tell at that point.
If that is the case, then a discussion is held between the individual duty
officer and their manager to assess the specific circumstances around that
particular event. There is the background material on file. There may be a
discussion with other agencies in the process. There would a consideration of
the flight, the trip itinerary, what is happening, and there would be a
consideration of potentially what other security measures may be in place.
At that point, a decision would be made whether that individual would pose an
immediate threat to aviation security. If that were the case, then an emergency
direction would be issued. That is the way that that is done. They would be told
at the point they did not get their boarding pass.
If the officer issued an emergency direction, then that direction would be
sent, as I said in my notes, to the air carrier, and a copy to the individual,
with information but minimal information, obviously, because it is being shared
with the air carrier and through them, given to the passenger: information about
this direction and how to contact the Office of Reconsideration where they can
obtain more information.
I think that covers the second part of your question, which is how is a
decision made at the time of boarding. It is very much in the situation, and it
is based on the facts of a specific case.
Senator Harb: The question I am asking is, why wait until then? Why
would a ticket be issued, never mind a boarding pass? Why is a ticket issued to
someone who, in the opinion of the minister, poses a threat? You share the
information with the airlines. Why put this person through the aggravation of
packing, with his or her kids, and going to the airport to go on a holiday, only
to find out at the time of boarding they are on a list? Why wait until then?
Ms. Kinney: Part of the background of the program is the situation
that we are dealing with and the type of information that we have on the
individuals and the type of risks that the person might pose. Normally, we would
not wish to disclose that information before it was necessary in case, in fact,
this is not the person. For example, there might be a number of people who have
close matches or partial matches, and we would end up being engaged with a much
larger number of people who are not affected by the program. There are several
reasons, but that is why the determination is done at the point where the
situation is triggered and there may be a concern.
Many things can change from the point that a person makes a reservation and
two weeks later they are planning to fly. A variety of things can change, and we
are not in a position, appropriately, in our minds, to make a determination
until the point at which the person is attempting to board the aircraft, at the
airport attempting to do that, and that would be the point at which the
immediate threat would arise.
Senator Harb: I am not getting an answer to the question. In other
words, you are telling me you do not deal with the situations before the
passenger buys his or her ticket. That is completely out of the question. You
wait until the person buys the ticket.
To a large extent, that is what is causing a lot of constituents, lots of
people, lots of aggravation. If you have a problem with someone, let them know
ahead of time. Do not wait until they come in and want to board the plane and
suddenly you tell them they do not qualify.
The Joint Chair (Senator Martin): I have a supplementary question,
Senator Harb. When you are talking about why this specific time, on page 7, if
you say only at the time of boarding, do you mean at the time of check-in? Some
individuals are checking themselves in, and they can issue their own boarding
pass at the machines. The way you describe it, if a person is looking to obtain
his or her boarding pass at that point of check-in, not boarding on the plane
but prior, that would clarify that it is not at the end immediately before they
are about to enter the plane but rather when they check in. Even an individual
checking in on his or her own, trying to obtain a boarding pass, would be denied
because his or her name would match a list?
Ms. Kinney: If I may clarify that point, the process that I was
explaining entails that the individual cannot obtain the boarding pass until the
process has been gone through. The air carrier does not issue a boarding pass.
Say, for example, someone is at their hotel or home, ready to make a trip, and
they try to print their boarding pass. They will not be able to do that. There
will be a block on the printing of that boarding pass by the air carrier. The
person will be told to contact the check-in counter, which does mean that they
will then go to the airport for their trip, and it is at the airport when they
are attempting to obtain that boarding pass, which is close to the time of
take-off, that they will be engaged in this process.
I want to re-emphasize, in terms of your points about concerns of the public,
that this emergency direction is an extraordinarily rare occasion. As I
mentioned in my brief, there have been 190 million people who have flown, and
there has been one emergency direction issued in this case. The other point that
I might raise is that there have been approximately 850 potential false positive
matches that our people have handled in the three years of the program, and they
have been resolved — I do not have the figures here, but normally within a few
minutes — to determine that this is not a false positive. The number of
emergency directions has been only one.
A number of concerns are raised by the public about whether this program
meant that they may have missed their flight, but I reinforce, as we have
attempted to explain in a number of cases, that this is almost never and
practically never related to the Passenger Protect Program.
You may be aware that air carriers maintain lists for a variety of purposes.
They have their own internal lists that relate to problems with passengers,
various incidents that also could have false matches as well, and they also have
other lists from other governments, et cetera. I think that the statistics speak
for themselves. The implementation of a major administrative process earlier in
the flight, when first, there is not a confirmation that the individual is that
person affected and, second, the circumstances are not such that we would be
able to make the determination of whether there was an immediate threat,
preclude us doing the process earlier in the phase. As I say, I do not believe
that process has caused any significant difficulties for passengers.
The Joint Chair (Senator Martin): I think your explanation is clear,
but on page 7, your statement says that this determination is made only at the
time of boarding, so it sounds as though they have already received their
boarding pass, but now you have clarified the point. Thank you.
Senator Moore: It is at the time of seeking the boarding pass.
The Joint Chair (Senator Martin): Yes, it is at the time of check-in
or trying to print out their boarding pass on their own.
Ms. Kinney: At that point, they would not be able to print the
boarding pass. Normally, they are required to go to the airport to do this.
The Joint Chair (Senator Martin): Yes; that was the same question I
had. Thank you.
Mr. Lee: I do not think anyone here doubts the purpose and objectives
of the Passenger Protect Program. It has been reasonably successful in achieving
its objective. However, as we have assessed these regulations so far, they
appear to offend four of Parliament's criteria. These criteria are not the
committee's criteria; they are Parliament's criteria.
As we keep score around here, that item is a significant one on the score
card. Ordinarily, we would look to the department to try to rectify the
regulations, which are offside in four separate, distinct ways. This analysis is
only preliminary, and we might end up concluding or trying to conclude that it
involves only two criteria, but I think we have identified a problem.
Both regulations say that the broad authority, as you described it, is based
on the existence of either emergency or threat. As we look at the operation of
this program, it is difficult for me to conclude that on every day of every week
with every passenger, there exists an immediate threat — as referenced in the
regulations — or an emergency. I do not see those threats being in existence.
The authority we are relying on is based on these two conditions existing.
Can you try to square that for me? What is the immediate threat? What is the
emergency that causes these regulations to interface with every single passenger
on every single aircraft?
As a sidebar, you have indicated that only 850 passengers in the last three
years have been identified as false positives. I will take it as accurate that
only one person has been prohibited from flying, but 850 people have been made
to comply with these regulations. Can you identify the immediate threat or the
emergency that existed in those 850 cases?
Ms. Kinney: That is an interesting question. One point to clarify is
that from the beginning of your comments, it is fair to say that with the
particular emergency direction issued in the one case that is before the courts,
we are expecting to hear the commentary, which will be taken into account as to
where we go. These discussions will be taken into account as well. Certainly, I
would not make any statements that would preclude that information.
In terms of emergencies and threats, there is a requirement to be aware, if a
person who potentially could be an immediate threat is arriving at an airport
and attempting to fly, of the circumstances around the individual. Concerning
compliance with the regulations, I will make a correction, although not
necessarily helpful perhaps, to clarify that the people who comply with the
Identity Screening Regulations would have been the 190 million, or all of the
passengers that fly, because the Identity Screening Regulations require that all
passengers provide identification and have their photo identity matched when
they fly. In my interpretation, all the passengers would comply with the
Identity Screening Regulations, as opposed to those who have a false match.
Perhaps you could clarify that if you would like to do so.
In terms of the threat, an administrative process is put in place to identify
those people who potentially would be an immediate threat. There is a
requirement clearly to have an ability to identify those people if they attempt
to board. In the development of the regulation and the imposition of
requirements on all passengers to provide identification, that balance and
impact were significant considerations. There were substantial consultations, as
was discussed, on the balance and impact on individuals.
As I mentioned, the impact on individuals is relatively minor in this case,
although it depends on one's particular perspective. People can fly and they
need to show identification. We have made several adjustments to the Passenger
Protect Program from the beginning to address those individuals who might be
affected somewhat by the ability to have photo identification or
government-issued identification. A change was made in the regulations initially
to address what was intended originally to apply to people over the age of 12
years. During the implementation of the program, it was evident that it would
not be easy for domestic flights to obtain that identification, et cetera.
Mr. Lee: You cannot identify the threat or emergency with respect to
each passenger who attempts to board a plane. In fairness, I do not expect you
to be able to do so. If you can describe in words, in English or in French, the
immediate threat or emergency that would exist with respect to every passenger
boarding a plane that causes these regulations to have a good basis in the
statute, then the committee would like to hear it. I do not expect you will be
able to do that, except in the case of the one passenger.
On page 10 and 11 of your presentation, English version, about when a
passenger is denied, it says, ``individuals affected by decisions are provided
with all the relevant information that Transport Canada is legally entitled to
I have seen those words before in the House of Commons just before the
decision of the house that the Department of Justice was wrong about what
information it was legally entitled to disclose to Parliament; I refer to the
Speaker's ruling of last April.
How can the individual know what the problem is with respect to their ability
to board the plane if the department does not want to disclose the reasons? In
the discussions with counsel thus far, and I have read the correspondence, I see
no particulars. The department says only that if someone has a problem with its
decision, there is a menu of institutions that they can appeal to; they are on
their own. If the law were to say that to citizens, then that would be our law.
However, in this case, there is no law that the citizen can rely on; it is only
a little menu. We have not even seen the menu, but we hear there is one. One can
go alone to the Security Intelligence Review Committee or to the Federal Court.
I am concerned about that situation. Why are there not minimum particulars
that have to be disclosed to a citizen when he or she is denied access or
prohibited from boarding a plane?
Ms. Kinney: If I may, I will touch on your first question. I suggest
from my reading and understanding that the Specified Persons List establishment
is linked directly to the statute, and the emergency direction is linked clearly
to the statute. The Identity Screening Regulations do not suggest that every
individual passenger is a threat. Obviously, that is something we can exchange
In terms of information that is legally possible to be provided, I will
mention a couple of points. The case currently before the courts has
demonstrated that Transport Canada was able to provide substantial information.
There are laws that relate to what we provide to individuals that are separate
from those provided to Parliament, obviously. I am not sure of that point, if
you would clarify if there was a question. Certainly, the department supplies
all possible information and in the only case that has been an actual event, has
provided substantial information, which is shown in the court record.
There are obviously limitations on what can be disclosed to individuals, and
we work through that process, as is the case with SIRC and other bodies that
investigate these areas, or are provided recourse.
I suggest there is law available in terms of what is required, and there is
administrative fairness, there is natural justice and there are common law
obligations. There are a number of obligations that are taken into account, and
we take it seriously. The department has, as I said, put forward additional —
beyond the basic requirements — opportunities to provide the absolute maximum
potential, administrative fairness and natural justice that could be provided.
In terms of your point near the end, in terms of establishing a minimum
amount of information, that would be one possibility, but I think that the
approach the department has taken is to provide the maximum information that is
at all possible, and then to work through the independent advisers to be able to
share information and to obtain background. I think that is probably more
helpful to the individual than to have a minimum established set of information.
Again, that is something to consider as we go through a review of the
Mr. Masse: I am curious as to the 30 days here. What happens, I guess,
to the person who shows up, they are told they are a threat and cannot board the
plane? Are any other government agencies contacted, or is the person turned away
at that particular point in time?
Ms. Kinney: The department process is to notify CSIS and RCMP, who
were engaged in the decision to put the person on the Specified Persons List. It
depends on the particular circumstances and the immediacy of what is happening,
but there could be a conversation as well to resolve an assessment of the
immediate threat that would occur by the duty officer or the manager of the
program at Transport Canada, and perhaps CSIS, in the determination of the
current, exact specification of whether there was an immediate threat for this
particular trip at this particular time.
We have a formal notification process. We would advise CSIS and RCMP of a
no-boarding decision, although that has occurred only once.
Mr. Masse: Right: They can take the bus out to Pearson Airport, be
denied access to the plane, and then take public transportation again to return
to wherever they came from? What is the process? Are they barred from other
types of public and private transportation while awaiting their review?
You say it is CSIS and RCMP, but obviously not municipal police or Ontario
Provincial Police. The person is deemed a significant risk to board a plane —
and I do not accept Mr. Lee's compromise of the law saying you cannot tell the
determiners why not. Is it because they are suspected of having a bomb or bomb
capabilities, or is it that they are violent? I think people should know exactly
why they were denied boarding on a plane. Even the cases that are resolved,
whether it be name problems or whatever it might be, they should have that right
What happens to that person, more specifically, in the in-between, grey area?
You mentioned the 30 days was seen as ambitious, but what happens in that time
frame when they are appealing the decision to their rights as far as public and
private transportation go?
Ms. Kinney: This program affects travel by air carrier and the
aviation security side of things. That is not something that is taken into
account under the Aeronautics Act and in this Passenger Protect Program. Part of
that program obviously is related to the degree to which there is a strong
interest in terrorists attacking civil aviation, although obviously there are
other possible targets.
This is something that is part of a broader government attempt obviously to
be aware of where people would provide a threat. The part I can speak to in the
Passenger Protect Program relates to the boarding. This program is not a general
application to how people travel. In fact, they are not prevented from
travelling; it is a matter of whether they can fly on that day at that time.
Mr. Masse: It seems odd that if someone is so significant and
considered a threat that they cannot board a plane, they would be turned loose.
We only have to look at Spain and England, where other modes of transportation
have been attacked. If someone is identified by the government as so significant
that there is a problem, then I find that odd.
I want to move to what I thought was interesting, to understand the process.
On page 9, you say you engage independent advisers. Who are these independent
Ms. Kinney: One point on your final comment: I will note that, as I
mentioned in my speaking points, this is one component. We look at whether an
emergency direction would be issued for an individual in the circumstances we
have been speaking about. That is one situation, one thing that can happen.
Other things can happen, as was discussed in Parliament when the act
amendments were being considered. I do not want to suggest this is the only
thing that might happen. Obviously, these are people who the other agencies are
aware of, but I cannot speak to their activities.
Mr. Masse: Fair enough, and you did mention that CSIS and the RCMP are
Ms. Kinney: Exactly: To the second part of your point —
Mr. Masse: Who are the independent advisers?
Ms. Kinney: The Office of Reconsideration was established in a
separate part of Transport Canada that is not under the Safety and Security
Group, which is where aviation security is located and where I report. It is
under the corporate side of the department, and it is separate, so I can speak
obviously to some degree to the program, but not necessarily to the management
Fundamentally, a request for proposal was issued and there were people who
applied who had various backgrounds of knowledge and suitability. A roster of
people was selected so that there would be people available and they would be
standing by, if needed, to react quickly to be engaged in this process.
Mr. Masse: Even though the security side triggers the person being
suspended from flying, the corporate side goes out and finds the independent
advisers who give advice about whether they are a threat?
Ms. Kinney: The consultations that were carried out in the design of
the program and the discussion were focused around the idea that the
administrative fairness would be improved by having information and advice
provided to the minister separately from the information and advice provided by
our organization. Part of the fundamental concept of having this type of a
recourse was to have someone who is separated from our perspective, to look at
these things, to look at whether a reasonable person might reach the same
conclusion and give advice to the minister about whether the minister should
reconsider his or her decision: not necessarily right or wrong, but should they
Mr. Masse: To the chair — and no disrespect, but you are identifying
that you are not the person to answer — I want to know more detail about these
independent advisers from that department and their budget. These are private
people who are being engaged to make, I guess, the case for a public citizen. I
find it unusual that it comes outside the government itself. I think we need to
follow up on that question.
This is my final question before I turn it back to the chair.
The 30 days that you identified as not being realistic, specifically why was
it not realistic in terms of the appeal?
Ms. Kinney: In terms of the administrative recourse process, we set an
objective of 30 days, and I think in some cases it is possible that it could
happen. I believe that the expectation is — and I think the general statistics,
although we have had few, and no cases where we have not been able to resolve a
false positive match — there might be cases where people would have the same
date of birth, gender and name as someone who is on the list, but is not that
I think, from the perspective of making sure, if something happened in the
actual assessment that is done on the scene by the duty officer who determines
if there appears to be a true match, we have been able to resolve all those
questions in that circumstance. I think, in setting up the program there was
envisioned the possibility that there might be more situations where false
positive matches were made and could not be resolved. In those circumstances, I
think clearly it would be reasonably easy to meet the 30-day verification with a
little more information.
In regard to situations where there was a correct match, and, as I say, we
have had only one case so far, the administrative processes that are set up
would make it difficult to have a false positive that went so far as an
emergency direction. Certainly, in the case that it occurred, we have a
If we have a situation where the person is a match and they have been issued
an emergency direction, as I mentioned in my speaking points, there are quite a
few different aspects that the individual might wish to address. There is the
information on which the recommendation was made to the minister: the source,
the quality of that information, the individual's interpretation of that, et
cetera. Many situations can arise in that aspect: where the information came
from and which agency; and then the actual conclusions that were drawn from that
information and whether those were reasonable conclusions. Clearly that is
something that someone would bring forward.
The intention is to allow for a more fulsome process for an individual in
these circumstances. The department made significant efforts to put far more
than normal administrative processes in place, given the significance of this
type of program. Because of that effort, we made changes in the Office of
Reconsideration processes early in the program for face-to-face meetings, to let
people know who is engaged, where they would hold meetings and the processes
involved. The individuals themselves obviously may seek advice and go through a
variety of procedures.
Mr. Masse: It is not about the individual doing that. I want to know
the specifics as to why it would take more than 30 days. You are talking about
the individual seeking advice and so forth, but it is really the department.
What specifically is it? Are you waiting for CSIS to respond, the RCMP or other
intelligent reports? Is there a specific time that you have to respond to those
cases? Does it go on indefinitely? I am not looking for what the excuses for the
person should be but for what they should expect from the department.
Ms. Kinney: We take every effort to answer earlier than 30 days, and,
in some cases, it is possible, but they are all unique individual cases. From
our perspective, we have the information available. We are prepared to respond
quickly. The Office of Reconsideration has put in place this ability to call on
people at a short notice and put in place a response. I suggest there are a
variety of circumstances: if the individual provides any input or provides what
they want to discuss; and based on what information we give them, whether they
have said they will make a meeting or not make a meeting. I do not suggest the
department would not make every effort. In any case, where it was
straightforward, and the individual had one particular issue — they challenged
something, we have a review and return with an answer — it is possible we could
do it within 30 days. I also do not want to mislead anyone. Given the individual
circumstances, it is practically impossible to say that we would set 30 days,
because then we have to say to the individual they would have to give us a
certain amount of information before if they are challenging certain points. It
becomes a fairly unwieldy process, I suggest, which would not be helpful to the
individual necessarily. I can say only that everything about the design of this
process was intended to give a fast, speedy, inexpensive and relatively informal
process as an alternative to the individual needing to go through the Federal
Court process for a judicial review. It could be done perhaps in 30 days. We
would make every effort to do that.
Mr. Masse: I will close with this comment. I find it somewhat of an
oxymoron that so much hard specific evidence must be necessary to deny someone
boarding a plane, yet it seems to become cloudy later on for the reasons
Senator Moore: I too am interested in this Office of Reconsideration.
I cannot find any legislative or regulatory authority for its establishment. Mr.
Massey asked you about page 9 where you talk about the office engaging
independent advisers, and then on page 12 you talk about the use of outside
contractors. Are they the same people?
Ms. Kinney: Yes, that is correct.
Senator Moore: This office is in the corporate sector of Transport
Canada, and you are the director general for aviation security. Do you know how
the Office of Reconsideration was set up? I want to know the qualifications of
the people who serve, their term of office and what their compensation is. How
big is the staff at the Office of Reconsideration? If we have had one case in
three years, what is the staff complement? What is its budget? When the office
makes a recommendation to the minister and the minister makes a decision, is
there an opportunity for the passenger to appeal that decision?
Ms. Kinney: In terms of your questions, I will be happy to send a
letter back with some of the details about the Office of Reconsideration budget
and the qualifications of the independent advisers. I point out that the design
was developed through the consultation process. There were extensive
consultations with a number of groups, et cetera. I was not there at the time,
but I was somewhat aware of it and I have looked at documents. The primary
consideration was to the benefit of the individual, to give them an opportunity
to make the case to people who were not tightly engaged in the security
Senator Moore: I understand that part, but maybe you can also include
a copy of the request for proposals. Was there an advertisement that went out so
people could say, ``Oh, that looks interesting; I will apply to be an adviser to
that office''? Is there a piece of paper you can send us?
I want to know, too, if the decision does not sit well with the passenger,
who does the passenger appeal to? Can they appeal, or is the minister's decision
Ms. Kinney: In the case of the process itself, the process is an
administrative process whereby these advisers look at the package and give
advice to the minister as to whether the minister should reconsider the
decision. If the minister chooses to reconsider the decision, the outcome can be
positive or negative for the individual. If the individual was, at that point,
not happy with the decision, whichever it might be, then the individual still
has the recourse of the judicial review of the minister's decision and that sort
of event that concludes the emergency direction and the decision.
Senator Moore: To be clear, the Office of Reconsideration — the
advisers — actually makes a decision. The advisers do not simply review the case
and then make a recommendation to the minister. From your comments, it sounded
like they make a decision and then let the minister know what the decision is,
and let the minister decide whether to review the decision or reconsider the
Is that the process? From what you said, it sounds like they make a decision,
and then they report to the minister and the minister decides whether to
reconsider what they decided. Is that it?
Ms. Kinney: No, I am sorry if my comment sounded like that. This
process is an administrative process that provides advice to the minister. They
do not make a decision per se. The minister makes the decision. This
responsibility clearly is given by Parliament to the minister, and the minister
is taking account of that responsibility and seeking advice on this situation.
The advice to the minister is whether the office recommends that the minister
reconsider the decision or not reconsider the decision and let it stand, but it
is not about what the decision was. It is about the recommendation of whether
the minister should reconsider, because the minister is the decision maker. I
hope that clarifies. I do not want to suggest that this process is a
decision-making process about the emergency direction or any decisions around
Mr. Saxton: Can you tell us how many people have been screened under
the identity screening regulations over the past three years?
Ms. Kinney: I think it is about 190 million passengers. We are getting
that figure from statistical records of passenger traffic, so obviously it may
not be exactly correct.
Mr. Saxton: You mentioned 850 false positives. How many true positives
Ms. Kinney: I mentioned that there was one issuance of a non-boarding
direction. There have been other positives where there were matches. In those
cases, emergency directions were not issued. There have been cases where,
depending on the situation, the emergency, the review of the immediate threat
and the other sorts of security arrangements, et cetera, that might be
available, the emergency direction was not issued. There has been more than one
Mr. Saxton: That is what I wanted to know. Do you know how many
Ms. Kinney: I do not have the numbers here, but it is a small number.
Mr. Saxton: Can you tell me how many people availed themselves of the
reconsideration process after being matched?
Ms. Kinney: Only one emergency direction was issued. That person
availed themselves of the Office of Reconsideration and other recourse measures
available. There have been no other recourse applications. There has been no
other issuance of an emergency direction.
Mr. Saxton: That means only one person has ever availed themselves of
the reconsideration process.
Ms. Kinney: That is right.
Mr. Saxton: Since the inception of the Passenger Protect Program, how
many passengers have missed flights as a result of being identified either
falsely or truly?
Ms. Kinney: I will check on the details but perhaps one or two
passengers; I would say fewer than five — an extraordinarily small number of
people. I believe it is closer to one or two people but I have to verify that
number. Normally, potential false matches are resolved in two to four minutes.
In the case where there is a full match of data, it is resolved in less than
five minutes. It is extremely unlikely that anyone would miss a flight. It has
been only one or two — a small number.
Mr. Saxton: In your opinion, does Transport Canada have the
legislative authority to operate the Passenger Protect Program?
Ms. Kinney: Yes: As I said in my remarks, there is clear authority for
the development of the Specified Persons List and clear authority for the
minister to take the appropriate action if there is an immediate threat to
aviation security. In the case of this program, that decision is made at the
time. One the actions that might be taken is a direction not to allow the person
to board. There is a clear authority for making those types of decisions.
The Joint Chair (Mr. Kania): Is there anyone who has not asked
questions that wishes to do so before we go to the second round?
Mr. Asselin: How is the list drawn up? How often is it updated and
what are the reasons why a person's name is placed on the list? If someone goes
by the name of Mohammed, will his name be automatically placed on the list?
Ms. Kinney: No: As I mentioned, the list is reviewed every 30 days. It
is a built-in process. There is a meeting of the committee that looks at the
Specified Persons List. We look at the list every 30 days in that process. The
meeting is held without fail. The names that come forward for consideration deal
with people who have demonstrated, in some fashion, the capability and intent to
pose a threat to aviation security. Absolutely, it is not based in any way on
ethnic, cultural, religious or other such factors. It is purely about what has
happened, what has been done and what the specific facts of the individual are.
Evident from the statistics of the program, the small number of people who have
been matched indicate that is the case and it is applied that way in practice.
Mr. Asselin: How many names are on the list here in Canada?
Ms. Kinney: Normally, we do not supply the number of names on the
list. We consider that information to be security-sensitive confidential
information. It potentially could inform people who have malicious intent if
they had a better idea of the number. This practice has been established since
the beginning of the program.
Mr. Asselin: If, for some reason, a person's name is on a list in the
United States or in Europe, is the information shared with Canada so that it too
can list this person? Do countries share information? For example, if a person
is listed either in the United States, in Europe or elsewhere, will that
information be conveyed to Canadian authorities so that they too can add that
person's name to the list in Canada?
Ms. Kinney: No: To clarify, this process is about a Canadian list. The
information is provided normally from CSIS or the RCMP. That information must
have sufficient background, detail and provenance, if you will, to demonstrate
clearly the concern that could be created if this person were to fly. I can say
categorically that at no point do we simply take names from anyone else's list
and add them to our list. Frankly, it would not be legally justifiable, and it
would not be appropriate. Absolutely that does not happen.
Mr. Asselin: I have one last question. Does this mean that a person
who catches a Toronto-Paris flight and then wishes to continue on to another
destination, for instance, Washington, could run into some problems because his
name could show up on a list somewhere?
Ms. Kinney: Yes, in general that is correct. The Passenger Protect
Program and its legal reach are for air carriers departing from Canada or on the
final leg of a trip coming from another country into Canada. The program does
not apply, for example, to someone who is making a trip with several itinerary
stops and then going elsewhere. Even when the last leg of the itinerary is
Canada, our legal authority exists to require air carriers to do certain things,
which include the Identity Screening Regulations and the Passenger Protect
It is possible that someone could fly in Canada or to or from Canada and not
be affected by our list in our Passenger Protect Program. They could make a
different flight and could be affected by another list of another country, for
example the country of their destination. That situation could happen. The lists
are not connected or linked in any way.
Mr. Anders: I want to follow up on a couple of questions that my
colleagues posed, and hopefully gain some context.
One question asked was: Why allow a person in question to purchase a ticket?
It makes sense to me that often it is only situational. Even if they purchased a
ticket, depending on where they purchased it to, what the circumstances were at
the time and what information you had at the time, et cetera, all those things
and many more, I am sure, factor into the situational nature. Is that a fair
Ms. Kinney: Yes, that is exactly correct.
Mr. Anders: Another question posed was about people being told they
are on a watch list. I assume that for someone of a violent or unstable nature,
which some passengers are who are on either private watch lists for airlines or
public watch lists for national security issues, informing them at the time of
an issuance might be an inelegant way to go about informing them because it
might set them off. Is that assumption fair?
Ms. Kinney: I think that is a fair consideration. I think the other
consideration one obviously takes into account is, if we have a security
regulatory regime in place to protect the aviation system, the more we tell
people about how it operates, and the more advance warning we give them about
how the system works — which is why we have confidentiality — the more capable
they might be to find a way to circumvent the regime that is in place. It is one
of the factors.
Mr. Anders: Another question asked by another colleague today was why
independent advisers or this expertise lies outside of our government. I assume
that sometimes we rely upon other governments and their expertise. I can think
of people I have listened to from other governments who have expertise in areas
relating to national security and foreign intelligence that is superior to what
we may have available at any given moment.
I also know people who used to work for the Canadian government who are now
working as private security contractors who have more knowledge than many of the
people currently employed by the federal government. Are those examples of why
you need outside contractors?
Ms. Kinney: I suggest that we have capable people in the government.
The people working on the program are the experts who are brought together to
provide the best possible advice to the minister in carrying out these serious
The idea of going to independent experts, who might come from some of the
types of backgrounds you are talking about, someone who perhaps has been
employed in these areas, et cetera, as I said — the consultations, the
discussion with the public and the discussion with a number of groups — was
mainly about getting what we might call a sober second look from somewhat
outside the security system, at the decision that the minister had made and at
the facts the minister had been presented in making that decision.
It was mainly that issue of having a separation from those who had made the
recommendation initially to the minister, more so than what kind of expertise
was needed. We obviously feel we have the right expertise to make that
recommendation. The question is more the ability to find someone who can give
the minister an additional source of external, independent advice.
The Joint Chair (Mr. Kania): I will give counsel an opportunity, as we
are running out of time, and then we will go to the other individuals.
Mr. Clarke: Point of order, Mr. Chair. I am new on this committee. In
regard to the questioning of witnesses and the parliamentary process for a
non-parliamentarian to have the opportunity to speak to a witness, I want to
seek clarification. How is the process set out for a member of Parliament and
also for a senator? What is the authorization to give that opportunity to a
non-parliamentarian to speak to a witness and ask questions?
The Joint Chair (Mr. Kania): I can tell you only from experience, last
time we had witnesses — and I think it was before you were on the committee —
counsel posed questions and no one objected.
Senator Harb: By consent.
Mr. Lee: Let us get on with it.
The Joint Chair (Mr. Kania): Are you objecting?
Mr. Clarke: I am concerned about setting a precedent. I wonder about
The Joint Chair (Mr. Kania): We have a precedent, on this non-partisan
committee, where we specify counsel and a secretariat, where this has occurred
in the past. We are following our prior precedent by allowing our counsel to
pose questions at present.
Mr. Clarke: When was the last —
Ms. Jennings: To answer, it is a good question, and I want to be able
to say that now, into my fourteenth year here on Parliament Hill, I have sat on
almost every committee except for Finance, Aboriginal Affairs, Status of Women
and Fisheries and Agriculture. There has always been the tradition that our, for
instance, researchers — because on the other committees it is not counsel, it is
our researchers — have been allowed to put questions forth to any witnesses
including, I might add, ministers. A precedent exists in other committees.
Committees can always change the practice. I do not wish to see that happen, but
there you go.
Mr. Saxton: Mr. Chair, I have also sat on other committees, and do
currently as well. The analysts normally give proposed questions to the members
of the committee, and then the members of the committee decide whether or not to
ask those questions. I have never seen a non-member ask a question of a witness,
in my experience.
I am sure Mr. Lee will talk to that point because he has more experience than
Mr. Lee: I do not want to spend too much time on this issue. I have
been on this committee for over 20 years continuously, and there have been many
instances where our counsel have asked questions of witnesses. They ask them at
the invitation of the members.
This committee is a joint committee. I have seen the same thing happen with
special committees and with standing committees of the House of Commons. There
are tons of precedents, and I think we should get on with it.
Most members find it helpful in allowing our researchers, analysts and
counsel to focus in on issues that have been put on the table already and that
can benefit from clarification from the witnesses.
Mr. Asselin: We would like to hear from witnesses because the
committee initially requested that parties be contacted and counsel followed up
on this request. The responses received were unsatisfactory and the committee
unanimously agreed to hear from witnesses. We are not trying to point the finger
at anyone at this time; we merely want some clarification in order to reach a
conclusion and eventually, close the file.
Mr. Lee: Can we continue?
The Joint Chair (Mr. Kania): Can we continue?
Mr. Clarke: To ask my colleague, Mr. Saxton, when counsel —
The Joint Chair (Mr. Kania): You are asking . . .
Mr. Clarke: I want further clarification here. When legal counsel, or
even the analysts, provide us questions, if we have witnesses appear, as a
guideline, I wonder if, before our counsel starts asking questions, these
questions should have been written before so we have an idea what type of
questions he will ask.
The Joint Chair (Mr. Kania): Mr. Clarke, we are following a precedent
on this committee that has taken place for years. There is nothing new happening
today. I realize you are a new member of the committee, but this is something
that has been going on for a considerable period of time.
Senator Harb: No matter which house.
Mr. Clarke: I have a hard time understanding the process here.
Mr. Masse: What is so hard about it?
The Joint Chair (Senator Martin): As the co-chair, in all fairness to
everyone around the table, it is important to talk about what is a precedent and
what is not. Members asking questions are not attempts to create more hostility
or tension, but only to inquire. I think we all agree that this committee is
non-partisan. Mr. Clarke has every right to ask these questions. Let us discuss
it, and I know we are looking at time as well.
Mr. Clarke, based on some of the answers you have received, do you have
further questions or comments?
Mr. Clarke: I want to see written documentation in regard to the
precedent so I can feel more at ease and comfortable, on the precedent that has
Ms. Jennings: Perhaps it will assist Mr. Clarke if our counsel go
through past committee meetings where there have been witnesses and pull out
dates and meetings where our counsel has been invited, with the consent, and by
tradition and precedent, of this committee, to ask questions, and prepare that
information for the next meeting or in advance of it. That information will
alleviate Mr. Clarke's concerns and clarify that it is, in fact, a precedent, it
is not unusual, et cetera. That information might assist.
Mr. Lee: For Mr. Clarke's benefit, counsel prepared a memorandum for
this meeting. In the memorandum are the questions that counsel has focused on.
The draft questions are right there on page 4. There are four pages of issues
and questions. I will stop there. Thank you.
Mr. Peter Bernhardt, General Counsel to the Committee: I will try to
go quickly, and I hope there will be time for any members who have additional
questions after that.
Can we take it that the individual who was the subject of the one
reconsideration is the same person who has mounted the court challenge?
Ms. Kinney: That is correct.
Mr. Bernhardt: I do not have the exact page numbers, but in a couple
of places in your paper you make the point that an adequate appeal mechanism
should be, I believe the words were, speedy and efficient. One thing the
committee has recommended is that part of being speedy and efficient and
adequate is having a fixed time period to ensure that things move along. Would
you describe the one year it took to complete the one reconsideration that has
taken place as speedy and efficient?
Ms. Kinney: I mentioned that there is a goal of setting a speedy and
efficient process, but, based on the individual circumstances and ensuring that
each individual receives the full hearing they are looking for and that all the
issues are properly dealt with, it may not be possible. This was a unique case.
It took much longer. It took closer to, I believe, a year. In this case, that is
a longer process, but it also goes to the reason why mandating a particular time
period would be extremely difficult for all parties.
Mr. Bernhardt: Have procedures been put in place to ensure that future
reconsiderations are more expeditious?
Ms. Kinney: I will qualify my answer by saying that, throughout the
process of the one reconsideration, we always took note of the things that
worked best, things that did not work well and all the various issues that were
raised, some of which had been foreseen and others, because it was the first
case, that not been foreseen. We absolutely did modify administrative processes
throughout that period of time, and then, at the end of the process, we have
made administrative changes. As I said, we make every effort to be as speedy and
efficient as possible, but without precluding the individual's opportunity to
bring forward their situation in the way they prefer, et cetera. Yes, I can say
that we have made significant changes in terms of a number of small
administrative changes. Depending on the circumstances of any case that may
arise, I hope that it would be speedy and efficient, but, again, there is
flexibility for the individual and for the particular circumstances to be
Mr. Bernhardt: On page 12 of your presentation, you note that if the
review process were set out in regulation or law, it would be rigid, and, in
addition, it is likely that affected individuals would be required to follow it.
Does the department accept that an administrative practice or mechanism is not
legally binding and can be changed at any time?
Ms. Kinney: Yes, I would certainly say that. As I said, we have
modified the administrative processes as we have learned from these particular
circumstances and the operation of the program. We have changed and improved our
Mr. Bernhardt: Is it not the case, then, as you illustrated, that
administrative processes can be changed quickly and easily? What is your
reaction to the suggestion that it is not so much that affected individuals
would be required to follow a legislated process but that government officials
as well would be required to follow the legislative process?
Ms. Kinney: It goes back to that individual circumstance. We are not
talking about a process that has perhaps 20, 100 or 2,000 people going through a
process. Every year, that number has certain limited variability, potentially.
It is fair to say that one could envision creating that type of a regime
potentially, but it would be difficult to envision all those circumstances. If
they were laid down in a mandatory process, then I would be concerned about,
first, potentially the administrative burden and potential obligations put on
the individual that may or may not be reasonable in individual cases,
backgrounds, their capability, et cetera. Also, there would be significant
potential for unintended consequences, which potentially would be found only
when we worked our way through that process. Certainly it is a possibility.
Although, as we discussed earlier, the legislation does not allow for a
legislated or regulated administrative review process, it is possible that type
of a process could be put in place if all the other changes necessary were made.
Mr. Bernhardt: Can those same arguments not be used against any
legislated appeal process in any sphere?
Ms. Kinney: I am not sure I am competent to speak to that point. I am
not an expert in all the legislation available. As I said, from my perspective,
looking at a unique, specific program that is designed and in fact has achieved
the objective of having an extremely narrow focus, and limited to minimal impact
on the general public, it is difficult, from one case, for example, to develop a
regime with a series of steps. Perhaps we would develop, in that circumstance
you are describing, a regime based on one case. It is hard to be sure that the
next case would resemble that case in any way. They are so unique. Whether this
is the case with other legislated appeal mechanisms, I cannot say, but I can say
that, in this case, there would be something very serious to consider in that
The Joint Chair (Senator Martin): Looking at the time, do we have
consensus to go until quarter after 10?
Some Hon. Members: Agreed.
The Joint Chair (Senator Martin): Some people who need to leave may do
so. Thank you.
Mr. Bernhardt: I have one last question. On page 15 of your
presentation, you note that the —
Mr. Clarke: I did not give unanimous consent.
The Joint Chair (Mr. Kania): Are you objecting?
Mr. Clarke: I am.
The Joint Chair (Mr. Kania): Then the meeting is adjourned.
Mr. Lee: This meeting was scheduled, if I am not mistaken, to go until
10:30. That is why we changed rooms. I have a question as well.
The Joint Chair (Mr. Kania): Let us first establish if the meeting was
scheduled until 10:30.
Mr. Bernhardt: I have the Senate notice.
The Joint Chair (Mr. Kania): The clerk has indicated today's meeting,
because of witnesses, was scheduled until 10:30.
Mr. Bernhardt: On page 15 of your notes, we have the statement that
the Passenger Protect Program was not specifically envisioned at the time the
amendments to the Aeronautics Act were passed. Notwithstanding the department's
position, and I accept the department's position is that there is authority for
these regulations and for the program, is the fact that it was not specifically
envisioned and in light of the fact that the impact of this program on a
particular individual can be serious, would this situation not be the sort of
thing that specifically should be considered and specifically dealt with by
Ms. Kinney: This question perhaps is outside my purview to answer, but
I suggest that, from my knowledge of legislation and government programs, the
law is based on the law as it is written. The discussions at the time are of
interest and have an impact.
We have many laws that are up to 10, 20 and 30 years old and a number of
programs have been put in place under them, so it is an opportunity to have a
discussion about whether it would be better to have the program there. From all
of my knowledge, such as it is, I do not see a rationale for requiring every
government program to be detailed specifically in legislation.
Mr. Bernhardt: I will clarify. My question is not so much to the
legality of this program as it is to the question of what is the most proper way
to ground it in law.
Ms. Kinney: I do not know. We had extensive consultations. A
substantial amount of work was done to put this program into place. We believe
that it is well founded in law and it has worked successfully to meet the
intended objectives. As I said, it has had limited impact and the department has
made serious efforts to ensure that the maximum possible administrative fairness
be embedded in the program. I think that is a judgment call, and I am
comfortable that it is well situated.
Mr. Lee: If this whole system had been developed by the airlines and
their international stakeholders on their own, without government, we would not
even be looking at it. It is only because it is government, and government is
constrained by rule of law, that we are looking at it. I am not finding any
fault with the general purpose and intent of the program, and it has gone a long
way to reassure the public.
However, in view of the fact that there is litigation taking place now about
this very thing, it is like the 100-per-cent chance. There is only one case of a
refusal, and it is in litigation. The batting record is not good in terms of
alleged legal compliance or noncompliance. As well, the committee has found
these four areas of potential noncompliance with its own criteria.
Can you indicate when you think this litigation might be completed and
whether the department is at least considering a rewrite of some of the
regulatory or statutory bases for the program in view of, one, the litigation;
two, the potential outcome of it; and three, the comments of the committee
through counsel so far?
Ms. Kinney: I cannot speculate on a forecast for the litigation. It is
such an individual case that I am not sure even the litigators will be able to
In terms of the regulatory and statutory aspects, as I mentioned, we intend
to consult and to look at the regulatory provisions, in particular because of
the interim order that was issued that requires that we do that to take the next
steps on modifying the regulation in accordance with the interim order signed by
the minister. It provides a good opportunity to look at this set of
recommendations and other issues that have been raised during the program, et
cetera. Obviously, it is a good opportunity to look fulsomely at those aspects,
so the expectation is that we will do that over that period of time.
In terms of the legislation, we believe that the court decision will find
that the program is well founded in law and is operating appropriately. However,
we are aware of the issues that have been raised, and we will certainly look at
those issues as well as at the comments that have been made here. I cannot speak
to whether there will be a decision to make any changes or to the timing of that
Ms. Jennings: For clarification, you stated that 190 million persons
have flown on 6 million flights since the program was created; that there were
850 false positives, that is, identification came up positive but within a few
minutes of investigation it became clear that they were not the individual
sought; and that there were an undisclosed number of true positives of which,
whether it was 2 true positives or 189 million true positives, only one
emergency directive was issued.
You also stated that every 30 days the list is reviewed and that
consideration for placement on the Specified Persons List is restricted to names
of people whose information suggests may pose an immediate threat to aviation
security if they arrive at an airport to board an airplane.
Of the undisclosed number of true positives, is it safe to assume that they
were allowed to fly and that, therefore, the investigation clearly found that
they were not an immediate threat, notwithstanding that their name was on that
Ms. Kinney: To clarify a little, as you know, there are two
components, the Specified Persons List and a watch list that the legislative
authority allows for. That list could be a larger list of individuals
potentially, given that the standard established there is different from the
emergency directions standards.
The program was designed to be minimal, to be narrow in scope, and to focus
purely on the potential for an immediate threat to aviation security. In
developing the Specified Persons List, the process that was developed was to
self-limit the names put on the list. However, there is certainly consideration
in that process that the person potentially would pose an immediate threat to
aviation security if they attempt to fly. There is that type of self-screening
of who should go on the list.
Again, we review this list every 30 days. People have been taken off the list
and people have been added to it, and then we review all the people on the list.
Ms. Jennings: I want to understand this point. The people whose names
are on the Specified Persons List, which is the list that the air carriers must
check a boarding passenger against, are limited to those persons that
information indicates may pose an immediate threat if they board an airline. We
have, according to your testimony, an unspecified number of true positives. That
means that the individual who presented himself or herself at the airline
counter to obtain a boarding pass triggered an alert and was indeed the person
on the Specified Persons List. However, of that unspecified number, only one
emergency directive was issued preventing that individual from boarding. That
means that all those other true positives, the number of which we do not know,
were permitted to board.
Given that their names were on that Specified Persons List, which is reviewed
every 30 days, and they were allowed to board, were their names subsequently
removed from the list?
Ms. Kinney: No: Perhaps I was a bit long-winded, but that goes to the
two-part process. As you said, the individuals whose names are put on the list
are those who may pose a threat, and clearly that list is slightly larger than
the list of people who potentially are an immediate threat today. The decision
as to whether these individuals are an immediate threat is made at the time of
The program was designed with the assumption that if someone presented
themselves and, in our opinion, they posed an immediate threat to aviation
security, one option is an emergency direction not to board the flight. However,
as was discussed in the development of the legislation and in the development of
the watch-list side of things, that program is in the context of a broader
government perspective. Situations arise where, for example, the individual was
put on the list with this concern based on a substantial body of information.
When a person arrives and causes a match to occur, the assessment is done: what
is the individual trip; what are the circumstances of the itinerary; who are
they travelling with; what are the particular environmental factors that feed
into the threat assessment; what, if any, more recent information might be
obtained from a discussion with our colleagues; has anything come up in the last
day or two days or five days; what is the nature of the individual's concern;
and why has the concern been raised?
The assessment includes such factors as the intent, capability and particular
circumstances. After that consideration, the decision is made. There have been
cases where at the time in those circumstances, it was not determined that there
was an immediate threat. We did not conclude that there was an immediate threat.
That does not mean that the individual is not of concern, so that means that the
person was not necessarily removed from the list. It might be a case- by-case
situation, which is individual.
Ms. Jennings: Theoretically, someone's name might be on the list but
if they have not travelled by air, a subsequent verification investigation has
not been triggered to determine whether, at that point in time, they pose an
immediate risk. One's name can be on that list for five years but if they do not
travel by air, there is no trigger.
Ms. Kinney: The two things are separate. Whether they should even
remain on the list and have their name available to the air carriers is reviewed
every 30 days. People have been taken off the list. If circumstances change,
they might be seen potentially as no longer posing that threat and could be
taken off the list. However, if they were on the list and after review on a
regular 30-day basis, they continued to appear to pose a potential threat, they
could remain on the list for a period of time. Typically over time,
circumstances do change. Again, it is individual because specific circumstances
Senator Harb: I am troubled with this whole notion. The argument you
use is that it is better to do this administratively than to do it through
regulations in terms of individuals on a no-fly list. You do not have to tell
them why they are on the no-fly list.
You mentioned that about 850 people were identified, but eventually their
cases were resolved within a few minutes. I know of three people who were on
their way to Mexico and were not able to board the plane. They were not told why
they were not allowed to board the plane. They have gone through a difficult
time because they did not know where to turn. When we suggested to them to go to
the Federal Court, you can imagine the amount of frustration and anxiety that
suggestion created for a Canadian citizen who was trying to take his family to
Mexico for a holiday. He took time from work but was not even able to board the
We have to think this program through and put ourselves in the shoes of the
people who are on the receiving end. The process at the Office of
Reconsideration can take two months; that is a long time for some people. We
have to put ourselves in the shoes of the passenger who is totally frustrated
because they do not know why they are not allowed to board the plane. The need
to know is a fundamental right. It is enshrined in the Canadian Charter of
Rights and Freedoms. People need no know the charge against them.
Ms. Kinney: If I may clarify, this situation arises on occasion, which
I mentioned earlier in my comments. There are a number of reasons why someone
might not board an aircraft, ranging from the air carrier's policies and issues,
payments for tickets and other such mismatches. The situation you describe might
be of a family of completely innocent victims because of a name match with some
other program. We receive calls about those programs frequently. Transport
Canada can be accountable for only the Passenger Protect Program. We cannot be
accountable for resolving programs with air carrier programs or a list from
We receive quite a few such calls. If the individual is affected by an
emergency direction from Transport Canada, the air carrier will give them the
emergency direction, the reason and a contact number; and the process will
begin. It has worked in all of the cases of 190 million passengers with X number
of false positives, et cetera. If this case involved the Passenger Protect
Program, it would be resolved relatively speedily and efficiently, in particular
if there was a mistaken match, within a couple of minutes. I would say that 99.9
per cent of the problems that you describe are not connected to the Passenger
Protect Program in Transport Canada.
We receive a number of calls from people like those you described. Our
24-hour staff try to provide information about the U.S. Trip Program and their
process for resolving false matches in the U.S., et cetera. We will give
information, not advice, about other reasons there may have been a problem.
We think we have a strong process in place that gives people the information,
and clear information, about how to proceed. Unfortunately, cases such as the
one you describe have nothing to do with our program. We end up with people
frustrated and upset who are looking for someone to talk to. We talk to quite a
few of those people and have been able to be somewhat helpful. At the end of the
day, it is not a Transport Canada program. I can say categorically that if they
were affected by the Transport Canada Passenger Protect Program, they would have
been given an emergency direction, and they would know it was us and whom to
call. It would happen right at the airport. We monitor the program and conduct
inspections of domestic and foreign air carriers to verify that they know and
understand the processes as well as the privacy aspects on not sharing the
information, et cetera. I can understand the frustration. Although we are not in
a position to resolve that kind of problem, we do our best to help them to find
the right avenue to recourse.
Senator Moore: Ms. Kinney, I believe you said that there are two
lists: the Specified Persons List and a watch list.
Ms. Kinney: My mention of watch list refers back to the initial
discussions in Parliament when the provisions were created for section 4.81, and
there was discussion about a watch list. I am sorry if I caused confusion.
Senator Moore: Is there only one list?
Ms. Kinney: We have a Specified Persons List only; it is the only list
we deal with.
The Joint Chair (Mr. Kania): On behalf of the committee, we thank Ms.
Kinney for appearing. We will adjourn.
I ask that counsel bring us back to the first item next week so that we can
discuss what happens thereafter.
(The committee adjourned.)