Bill S-2 (Historical)

An Act to amend the Customs Act

This enactment amends the Customs Act to clarify certain provisions and to make technical amendments to others. It also imposes additional requirements in customs controlled areas, amends provisions respecting the determination of value for duty, and modifies the advance commercial reporting requirements. Finally, it provides that regulations may incorporate material by reference.

Customs Act

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, we are indeed debating the border services act. I would like to begin by reading the summary of Bill S-2.

This enactment amends the Customs Act to clarify certain provisions and to make technical amendments to others. It also imposes additional requirements in customs controlled areas, amends provisions respecting the determination of value for duty, and modifies the advance commercial reporting requirements. Finally, it provides that regulations may incorporate material by reference.

Basically, as the title of the paragraph indicates, important factors must be put into context. If we take a moment to look at this bill's progress, we all know that Bill S-2 was introduced by Senator Marjory LeBreton, the Conservative leader in the Senate, on January 29, 2009. It passed third reading on April 23, 2009, and was sent to the House of Commons. It should be pointed out that it is identical to a bill bearing the same number and title introduced on December 2, 2008, as well as to Bill C-43 introduced on February 15, 2008, during the second session of the 39th Parliament. Both of those bills, of course, died on the order paper.

Bill S-2 amends the Customs Act to clarify certain provisions of the French version of the act and make technical amendments to others. It also imposes additional requirements in customs controlled areas, grants the minister the power to authorize entry, amends provisions respecting the determination of value for duty, and modifies the advance commercial reporting requirements. The search powers of customs officers are expanded to include individuals and their goods that are in or are leaving a customs controlled area. The bill also provides that regulations may be enacted that describe the time frame and manner in which information about passengers may be provided by prescribed persons.

The current Customs Act is the result of the total revamping of the 1867 act, which was undertaken in 1986 to maintain the original act’s three purposes and to allow for greater flexibility in light of developments in transportation, communication, trade and business practices.

Since 1986, the Customs Act has been amended continuously in response to free trade and related international agreements and to fine-tune international trade measures.

Primarily, though, this bill is designed to provide Canada Border Services Agency officers with information, tools and the flexibility they need to identify threats and prevent criminal activity, while ensuring that legitimate goods and travellers can cross the border efficiently.

Under the amendments that have been announced, all businesses that are part of the import chain are required to provide the Canada Border Services Agency with electronic data on their shipments before the goods reach Canada. With this advance information, the Canada Border Services Agency will be able to make better decisions about admitting goods and analyzing the risks they pose to Canadians.

Other changes will allow the agency to fully establish customs controlled areas that will provide greater flexibility to officers for examining goods or questioning and searching persons, regardless of their location within these zones, and not only at exit points as currently provided under the existing legislation. Even though Bill S-2 seems adequate at first glance, an in-depth review of this legislation and close questioning of government and Canada Border Services Agency officials will be necessary.

The bill also includes other amendments. Here are some of the main changes to the Customs Act that are proposed in Bill S-2. Clause 2 eliminates the requirement for the minister to make a regulation to grant access to a customs controlled area to any person. From now on, the minister will be able to authorize such access directly. Clause 3 eliminates the exemption that applies to persons leaving a customs controlled area to board a flight with a destination outside Canada. Now, these persons will be required to present themselves to an officer, identify themselves, report any goods acquired while in the customs controlled area, and answer questions.

Clause 4 amends the power of the governor in council to make regulations respecting the persons or classes of persons who may be granted access to a customs controlled area, and regarding the manner in which a person in a customs controlled area, or a person leaving such area, must present himself or herself. Clause 5 amends the requirement to report goods imported into Canada, so that a prescribed person, and not the person in charge of the conveyance, must report the goods at the nearest customs office. So, a regulation defining those prescribed persons will determine who must report the goods at the nearest customs office.

Clause 12 of the bill amends the act to allow the minister to set the prescribed time and manner in which he can require a prescribed person to provide information about any person on board a conveyance, under prescribed circumstances and conditions. Clause 7 amends the methods used to adjust the transaction value of imported goods when proceeds accrue to a vendor following a subsequent sale. This change can lead to the setting of a higher value and, consequently, to an increase in the duties paid by importers.

Clause 10 amends the act to authorize an officer to search any person who is in or is leaving a customs controlled area if the officer suspects on reasonable grounds that the person has secreted on or about their person anything in respect of which this Act or the regulations have been or might be contravened. Clause 11 amends the act to enable an officer, in accordance with the regulations, to conduct a non-intrusive examination of goods in the custody or possession of a person who is in or is leaving a customs controlled area.

Our main point of disagreement with Bill S-2 is that the Customs Act is a linking legislation between duties and tariffs paid by importers under the customs tariff, and security and safety legislation under various other Acts. The changes made to the methods of valuation of imported goods may also decrease disputes regarding the calculation of duties. This may also increase revenues obtained from duties if the value of imported goods is more likely to be adjusted upward as a result of the proposed changes in the valuation provisions.

The advance information requirements proposed by the bill are intended to improve risk assessment of imported goods at the border.

Combined with the expanded search powers of officers in customs controlled areas, this may lead to decreased amounts of dangerous counterfeit goods entering Canada through customs controlled areas.

Currently, border services agents are authorized to search individuals only at exit points from controlled areas. If this bill is passed, border services agents will be authorized to conduct searches in controlled areas, as Ms. Kerr-Perrott explained during the Senate Standing Committee on National Security and Defence's examination of Bill S-2. She said:

—an officer would question the person at an exit point, where the person must speak to a CBSA officer. The officer can ask questions and can search if it is deemed necessary. In this new scenario, the customs officers could ask similar questions within the customs controlled area, and if there are reasonable grounds to conduct a search, the officer would indeed proceed with a search. The officers would be trained appropriately, and individuals within the customs controlled areas would be advised of the possibility that a search could occur. There would be notification.

The Minister of Public Safety has provided assurances that officers conducting these searches will be subject to the requirements of the Canadian Charter of Rights and Freedoms with respect to protecting the constitutional rights of the individuals searched. However, the bill also grants discretionary authority to the government to establish and even expand these areas. The controlled area could be expanded to cover the entire airport or port and even parking and drop-off areas.

The authority granted to border services agents would be disproportionate. Consequently, an in-depth study of these provisions must be carried out in committee. I would like to point out that the RCMP, the Canadian Security Intelligence Service and Transport Canada support the changes to customs controlled areas. Airport authorities also consider the use of customs controlled areas to be a reasonable security measure and port authorities acknowledge the need for customs controlled areas in proximity to commercial and cruise ships.

To summarize, it is important to understand that there is a great need for flexibility at borders and in customs. We have also known for a number of years that there is also a great need for security.

Thus, both elements must be considered to ensure that border crossings and security are efficient. That is why I reiterate that flexibility is required in order to detect threats and to prevent criminal activities while ensuring that legitimate goods and travellers can freely cross the border.

I will close by saying that the Bloc Québécois supports Bill S-2.

As I said earlier—and it bears repeating—the bill will be sent back to committee, where certain aspects will be examined closely in order to improve the bill and increase its effectiveness. As I have already said, even if, at first glance, the bill seems acceptable, it must scrutinized. We must also further question Canada Border Services officials to ensure that the proposed changes will be effective. The government must be open to the changes or recommendations proposed by the committee, which will surely be positive.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I want to congratulate the member opposite on the effort he obviously has put into preparing his remarks and researching this bill.

We hear in our caucus from the member for Windsor West, who has been very concerned with matters relative to protecting our borders and of course with the goods and services that are provided to our country today. We are concerned about counterfeit, illegal and harmful goods being imported into Canada.

I understand that the Customs and Immigration Union is in favour of this bill, as is the Canadian Airports Council and the Greater Toronto Airport Authority as well. Coming from Hamilton, we have one of the busiest inland ports in Canada, relative to Toronto. When we are talking about the chain of goods as they come into our country, we have the ports in the eastern and western parts of the country for ocean-going vessels.

Does the member see, in the provisions of this bill, any impediments to the movement of those goods that would be coming, particularly to Hamilton on the Great Lakes, with some of these ocean-going vessels?

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, the member talked about counterfeit goods. I am not necessarily an expert in border services, but I have had to use them on a few occasions, as many of us have. Certain individuals may have displayed some behaviour that I would perhaps not call meddlesome, but which, by their nature, could frankly help the agents do a very good job.

When I looked at this bill, I had some questions. I look at the importance of the border between Canada and the United States, and the number of places where people can cross in both directions. Of course there are border services at ports and in airports, but there are countless places that need to be monitored, and it is not humanly possible to monitor all of them.

Of course, modern techniques are needed to quickly detect if certain things are illegal. It is a huge job. Some methods do exist, but when they are insufficient, someone must also physically go there, which is what I would call scientific verification. Not all merchandise, equipment and individuals can be thoroughly checked. Someone must go there, perhaps not just by chance, but based on sampling, for both merchandise and individuals. As for counterfeit goods, even greater efforts are needed.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Mr. Speaker, I understand that this bill is intended to improve security at customs, but one provision bothers me. It expands the powers of customs officers to search people and their goods. Clause 10 even authorizes a customs officer to search anyone in a customs controlled area.

As I have recently travelled, this worries me. First, when we go through customs now, especially at the airport, we are insecure and we feel that the people we are dealing with are looking at us suspiciously. Customs officers often seem very unfriendly and cannot smile. They are also very brusque with the travellers. I am afraid that this will lead to abuse of authority. For example, a customs officer who does not like the way I look could deliberately check my bags, search me and send me into the back room. I have seen it happen. People wearing a hijab and Muslims are systematically sent into the back room to be searched.

Has any thought been given to the abuse of authority that could result from this bill?

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, I almost feel like I have been travelling with the hon. member, since I have occasionally had similar impressions. I remember one time in particular when I was crossing the border with my young daughter. As was the trend in Quebec, we sometimes went to the United States to go shopping. I did not find anything and my daughter was disappointed, but we had not bought anything. When we got to the border, we were regarded as people who were trying to bring something in illegally. They really grilled my daughter with questions about her watch, since they thought it had been purchased in the U.S. They appeared to really want to find something. I do not know if my car had been picked randomly, but that happened in the past.

I do hope things have changed, however, especially when it comes to searching people. In fact, the Minister of Public Safety must ensure that agents who carry out these searches meet the standards of the Canadian Charter of Rights and Freedoms. We hope, we want, in fact we insist, that they proceed in this manner so that people's rights are respected when they are being searched.

When I was an accountant , the best way to exercise audit control was to make sure that standards were properly applied. I am sure that there will not just be one border services officer searching someone alone, hidden in a corner. I would hope that human rights will be respected. In a society like ours, this is just plain common sense, and it is necessary. I am sure that that will happen. However, individual officers may take advantage of a situation. This happens everywhere in society. The power will go to their heads, and they will force someone to answer their questions and submit to a search. That may happen, because it does happen.

I would hope that the measures that are in place to make sure that the Canadian Charter of Rights and Freedoms is fully respected will be followed to the letter. People have to be able to trust border services officers. They are also working to protect our security. We want things to go smoothly at the border, but we also want security. It has become almost an obsession. There may be minor incidents from time to time. People want security, whether we are talking about individuals or goods. But we must not allow just anything into the country.

Earlier, members talked about counterfeit goods. If I purchase an original item worth $100, I do not want to find myself with $90 worth of phoney goods. We have to protect goods, but we have to provide just as much protection, if not more, for people, while respecting human rights.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Mr. Speaker, I would like to give an example for my colleague to comment on.

I have been involved with security myself. I was on in transit New York, en route from Ottawa as part of a ministerial delegation. In New York, a particularly zealous officer took my passport and asked for my U.S. green card. I told him that I did not have one and that I had never lived in the United States. He delayed me for at least 15 minutes, demanding to see a green card, which I did not have, and refusing to let me through. The minister was waiting for me on the other side because the delegation was about to board a plane for Africa. That is what I call excessive. As members of Parliament, we all have special passports. I had to tell the officers that I wanted to talk to his supervisor, or I would never have been allowed through. In the end, he took my passport, stamped it and practically threw it in my face.

I hope that that will never happen here, and that we will have enough staff to make sure that it never does. That is what happened there, and it is still happening.

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, I understand what my colleague went through because I had a similar experience in the United States.

If ever we worry about what happens here, we have only to look elsewhere if we want to feel better about ourselves. I believe—I hope—that border services in Canada and Quebec are much better than what my colleague and I experienced in the United States.

In any case, this bill has to go to committee, and the minister has to provide satisfactory responses to all of the issues raised in the House.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, let me say at the outset that I will be supporting the bill, and I believe the remaining members of our caucus will also.

The provisions are good. They are positive. They are a step in the right direction. However, there are a lot of overriding and overarching issues dealing with the border between Canada and the United States that certainly are not, in my view, receiving the attention they ought to be.

I cannot overstate that this is a tremendously important issue for our economy and our society. Some 87% of our exports cross into the United States, and something like $1.5 billion of trade goes back and forth every day. Many people work and travel back and forth between Canada and the United States and between the United States and Canada. It has to be done in a very efficient manner.

There are basically two overriding interests at stake here. First of all, there is the free and efficient flow of people, services and goods, both ways. Second, there are the security interests of both countries. Neither country wants to be invaded by criminals, illegal drugs, illegal guns. These are situations that have to be stopped at the border. We know full well that given the size and extent of our border there are going to be situations that happen each and every day. Again, I want to state how important this issue is.

For the last five or six years, I have been a member of the Canada-U.S. Inter-Parliamentary Group. I believe it is a group that functions very well. We have an annual meeting, which alternates between Canada and the United States. It will actually happen in a week and a half, in Canada.

There are a number of issues, but invariably the first one that always comes up before anything else is the border issue. Whether it is the western hemisphere travel initiative, again it is the thickening of our border that has to a certain extent impeded the natural flow of trade and the natural flow of people on both sides of the border. They have the same concerns as we have, especially the northern states: Michigan, Illinois and New York State.

Of course the vast majority of the Canadian population lives within 100 miles of the U.S. border, so this is a tremendously important issue. Anything we can do to improve the situation, as the bill does, or that helps to facilitate the movement of goods and services and people, is a positive development.

This was before Parliament as Bill C-43. I believe it passed first reading at that time. It died on the order paper, and now it has been introduced in the Senate as Bill S-2. It received debate and deliberation in the Senate.

I have been impressed by some of the amendments that have been made. I am encouraged by the work that was done in the other place, and hopefully the bill will go through the House to committee. There are a few issues that will have to be explored further, especially dealing with the minister making regulations.

I assume that the committee will also want to hear from some of the stakeholders who deal with this issue each and every day. The union that represents the customs officers, the Canadian Airports Council, the Toronto airport, many of the stakeholders have expressed general consent for the bill. I am not aware of anyone who is opposed to the bill yet. So hopefully the bill will go through the House to committee. It probably should not be that long at committee, and hopefully it will be law in the not too distant future.

The bill could be broken down basically into two general components. The first component is the expansion of the activities within a customs controlled area, which allows customs officers to search, to seize and to stop people. This is an expansion of the powers that presently exist, and again that is a positive development.

The second component of the legislation is in passage of information, that is information in all forms, whether we are talking about ships, aircraft or general conveyance. Again, it is the goal of everyone to see that goods move efficiently and quickly across the border, both ways, and that people move also, that they are not stopped at the border for unnecessary reasons. At the same time it is equally important to facilitate the border people in stopping anything like illicit drugs, guns, or people who should not be allowed to cross the border.

When we read the resolutions and the policy papers coming from the Canadian Chamber of Commerce, the Canadian Council of Chief Executives and other major business groups across Canada, this is a major issue. This is an issue that they identify regularly, and it is an issue that they want both governments to work at.

As I stated previously, this will certainly be an issue at the next meeting of the Canada-U.S. Inter-Parliamentary Group, which meets in Quebec a week from this weekend.

We have had a lot of situations that have arisen over the last number of years. One of course was the western hemisphere travel initiative. That has been before this House in debates, and this is an issue that was spoken about by this group. It is something we were able to delay. It is effective now for air transport, and it will be effective for vehicle transport on June 1 of this year, which is not too far away. That has been a major concern. We are hoping that when it does come into effect that sufficient people on both sides of the border will be aware of the provisions of this new regime and that we are not going to see adverse effects to our tourism and other industries because of lack of knowledge.

I hope that I am wrong, but I can see problems, especially in some of the border towns where people are used to going back and forth each day, whether to work, or for recreation or to purchase goods and services. Let us all hope that everything will work efficiently and effectively come June 1.

When the previous round for air transport came through a couple of years ago, Passport Canada was woefully unprepared to deal with the avalanche of new passport applications. But so far, everything in my experience as a member of Parliament has been positive. I think there is a bit of a delay now, but we have seen absolutely nothing like we saw in the horrendous situation of a couple of years ago. Passport Canada was telling Canadians on its website that their passports would be back in 20 days. The people would book their flights, send their passport in 40 working days before their departure date and find out the day before that they did not have their passports.

Mr. Speaker, you probably experienced the problems of many members of Parliament, especially members of Parliament who came from areas that did not have a passport office in their area.

There are a couple of matters I am going to bring forward that are not in the bill but they relate to this debate. They are issues that concern me as a member of Parliament and that I deal with each day. It is a nagging issue that deals with the stopping of people who have what I call “old criminal records”. In most instances we are dealing with records that are 20, 25 or 30 years old. Two major instances are possession of cannabis, marijuana. At that time, 30 years ago, it was a criminal offence.Right now they probably would not be given a conviction; they would probably be given a conditional discharge or an absolute discharge. The other more common case would be an impaired driving conviction.

Depending on the agent who greets them at the border, this stops them from going to the United States, and vice versa. One thing I would suggest to the House is that there has to be some way of resolving these issues. There has to be a protocol developed between Canada and the United States, and a quick way of adjudicating the matter.

If someone had an impaired driving charge 30 years ago, yes, it is on his or her record. It is probably something the person is not proud of but does that really affect the security of the United States or Canada? Is there not some efficient, quick way that we could expedite that process so these people can go into the United States or, if they are in the United States, can come into Canada? That is one issue I would like to see explored and resolved.

I do not want to get into the whole gun registry debate now, but another issue is the very clear and cogent evidence of the large number of illegal handguns that come from the United States each and every year that end up in Canada, certainly some of our major cities. There has to be some way for our customs officers, the people at our borders, whether it is through technology or whatever, to identify the illegal guns that are coming north each and every year.

Of course, the Americans would certainly have other issues concerning Canadians, such as drugs. Again, one of the major issues that I hear in my role as a member of Parliament is the number of illegal handguns that come into our country from the United States each and every year.

Another issue I will bring up is the whole area of the free flow of goods, services and people each way. It requires a massive expenditure of infrastructure by our government. Two years ago I had the pleasure of taking a tour of all the customs facilities within the city of Windsor, in the tunnel. As everyone who lives there and has experienced that particular border crossing, it is woefully inadequate.

The expansion of that facility has been talked about ever since I came here eight and a half year ago. I know it is complicated and an international issue. I know there are all kinds of different versions as to the correct manner of doing it, but I would like to point out that it is something that ought to be done and done soon so that things will flow that much more freely.

As I said, I do not consider this a major bill. It provides a more efficient operation within our customs operation. It allows for a more effective pre-clearance or information flow for people. Therefore, it is a positive step in the right direction, but there are a lot of other steps that we have to take on this particular border issue.

In conclusion, I will be supporting the bill. I hope it is not in committee too long and becomes law within a very short time.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, my colleague mentioned in his remarks that there were some things he would like to see changed or some concerns he had with regard to this legislation. He went on to talk about illegal guns coming into Canada through a very porous border, mainly the United States. I am wondering if he sees this bill as being helpful in that regard or is that one of the areas where he has some concern.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, some of the officers will be allowed to stop, seize and search in that particular area. It will help but, again, this is a much larger issue that requires a lot more resources and attention than it is given right now. It is still going to be inadequate but, to answer the question, yes, it will be of some assistance.

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

Mr. Speaker, I want to ask the hon. member for Charlottetown to elaborate on three areas.

The first area is on the search provisions and the powers that are given to customs officers and whether he thinks they will be unwieldy; and second, will the privacy issues be resolved, preserved and protected? Finally, as a former member of the Ontario Tourism Marketing Partnership Corporation board, I wonder if he could elaborate on whether there are any other alternatives to the passport requirements, such as universal identification, that we should consider rather than the passport requirement that is now law.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, one of the components of the legislation expands the area that customs officers can search, seize and stop. As I indicated in my remarks, that is a positive development.

On the privacy issues, this is something that can be looked at in committee. I must confess that I did not examine it that closely, but as far as I can see, I do not see any overriding privacy issues that ought to concern the House. The last question on the exploration of other travel documents is extremely important. Of course, we do have the NEXUS system that is used by frequent travellers.

The enhanced driver's licence is being explored. British Columbia and Ontario are looking at that. I would hope that, at some point in our future, that will be the method that is used by all states and provinces. Eventually, we will come to the point where we will accept driver's licences with enhanced IT capabilities that will allow customs agents to plug in the driver's licence and see one's criminal history or whatever things ought to be of interest to a border agent when we are either exiting or entering this country.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I just have a comment. I would like to publicly acknowledge the member for Charlottetown for speaking earlier so that I could speak next. I want to thank him for being generous in doing so. It is a busy schedule up here and I appreciate the fact that he was able to change his speaking slot so that I could speak next.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I thank him very much for the comments.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I want to thank the hon. member for his pretty thorough canvas of a number of issues of concern, particularly to Canadians when dealing with this border issue. I thought he had a fairly thoughtful analysis.

There are times when I wonder whether we just end up talking to ourselves. It seems awfully difficult to get the attention of the Americans on a whole variety of issues, a number of which the hon. member has mentioned. Because we end up talking to ourselves, we end up in some fairly frustrating situations, some of which have been precipitated or highlighted by the comments of Secretary Napolitano.

I want to ask the hon. member whether he thinks that this bill will actually make a wit's worth of difference, particularly the expansion of activities with respect to the customs control area? Witness after witness said the same thing, which is that we make all of these changes and the border thickens. Things slow down and it takes more time to get over the bridge when delivering goods and services. I wonder if he could put it in the context of talking to ourselves, in effect, and being seemingly unable to get the attention of either the secretary of homeland security or the ambassador.