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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.



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 my remarks.

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 program development.

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 place.

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 process.

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 centre.

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 disclose. ``

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 further on.

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 regulations.

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 immediately.

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 advisers?

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 identified too.

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 details.

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 reconsider.

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 person.

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 situation.

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 afterwards.

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 organization.

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 final?

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 decision.

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 the program.

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 were there?

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 match.

Mr. Saxton: That is what I wanted to know. Do you know how many matches?

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 Program.

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 comment?

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 responsibilities.

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 other committees.

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 I do.

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 been set.

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 addressed.

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 administrative processes.

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 review.

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 Parliament?

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 do that.

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 decision.

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 list?

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 boarding.

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 would apply.

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 plane.

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 other countries.

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.)

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