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.

Royal Assent

[The Deputy Speaker, Conservative, Andrew Scheer]

Order, please. I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Ottawa

June 11, 2009

Mr. Speaker:

I have the honour to inform you that the Honourable Rosalie Silberman Abella, Puisne Judge of the Supreme Court of Canada, in her capacity as Deputy of the Governor General, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 11th day of June, 2009 at 3:56 p.m.

Yours sincerely,

Sheila-Marie Cook

Secretary to the Governor General and Herald Chancellor

The schedule indicates the bills assented to were Bill S-2, An Act to amend the Customs Act; Bill C-3, An Act to amend the Arctic Waters Pollution Prevention Act; and Bill C-28, An Act to amend the Cree-Naskapi (of Quebec) Act.

[Don Chapman]

Not much. John has not returned all my phone calls.

There are a lot of other people in your party who have been absolutely wonderful. Let's start with John Reynolds. We wouldn't be here today without John Reynolds. He is a real hero of the lost Canadians.

Diane Ablonczy; I can't say enough good about Diane Ablonczy.

If we go further, there are lots of people in your party who have helped me along this way. Senator Kinsella has helped us several times with Bill S-2, Bill S-17.

There's Inky Mark. I have a whole list here of quotes from wonderful people of your party who have tried to help us along the way.

I can't say that John Weston has done.... I mean, I haven't seen it.

Business of the House

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I am pleased to respond to my colleague's questions. Before I get to his specific questions, perhaps we will revert to the more traditional response, which is to lay out the anticipated business for the week ahead.

As members know, today we completed debate at third reading stage of Bill S-2, the customs act. We will continue and hopefully complete the second reading stage of Bill C-20, Nuclear Liability and Compensation Act. Following Bill C-20, we will call at second reading, Bill C-30, Senate Ethics Act.

Tonight the House will go into committee of the whole to consider the main estimates of the Department of Fisheries and Oceans.

Tomorrow we will begin debate on Bill C-24, Canada-Peru Free Trade Agreement Implementation Act. The back-up bills for tomorrow will be any unfinished business left over from today.

Next week we will continue with any unfinished business from this week, with the addition of Bill C-15, drug offences, which is at report stage and third reading stage.

We will also consider Bill C-32, the bill that will crack down on tobacco marketing aimed at our youth, and Bill C-19, investigative hearings and recognizance with conditions. These bills are at second reading.

As I have been doing, I will also give priority consideration to any bills that are reported back from our standing committees.

Finally, I would like to note that on Monday, June 1, at 10 a.m., there will be a memorial service in the Senate chamber to honour the memory of parliamentarians who have passed away since April 30, 2008.

As well, in response to the specific questions, the hon. opposition House leader would know full well that we just had our House leaders meeting of all four parties and their whips. I thought I took extraordinary steps to inform my colleagues about the anticipated business that I intend to call between now and the House rising on June 23. He has all of that information. He knows as well that much of this is tentative and subject to change because we do not know exactly how fast committees will move and how long debate will take in this place. Having said that, I have tried to be as transparent and as open with my colleagues as possible.

As far as specific questions about the three remaining supply days, I will be designating them in the future, although I did indicate tentative dates for all three, and the member is well aware of that information; in fact, I think it has been made public.

Customs Act

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I would like to ask the member a follow-up question.

Has there been any economic impact on shippers and businesses in recent years stemming from problems experienced crossing the border in his view? Which specific provisions of Bill S-2 would contribute to alleviating those problems? How would the provisions of the bill pertaining to advance information requirements facilitate low-risk commercial shipping?

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I note that the Auditor General's report of 2007 also made recommendations on the need for the Canada Border Services Agency to improve its framework and strategy for managing and assessing risks. Specifically, the report recommended that the Canada Border Services Agency should better develop its risk-based approach for the delivery of integrated border services and use this as a basis for deploying its resources and focusing enforcement efforts.

I would like to ask the member how the provisions of Bill S-2 would improve the Canada Border Services Agency management and risk assessment procedures in his view?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am pleased to offer some thoughts on Bill S-2, which originated in the Senate.

The bill would amend the Customs Act, clarify certain provisions and make technical amendments to others. It would also impose additional requirements in customs' controlled areas, amend provisions respecting the determination of value for duty and modify advanced commercial reporting requirements. The bill provides that regulations may incorporate materials by reference.

It is interesting to see how the debate has gone on. It started off with a member of the official opposition spending a bit of time dealing with the potential implications of border areas on the economy of Canada and a little review of the current economic climate and the financial position of the country right now, which members are concerned about, whether it be with regard to the size of deficits, the level of unemployment, the international difficulties, bailouts and the like.

Having allowed that discussion to take place for some 10 minutes provided a great opportunity to open up the entire debate to talk about the finances of the nation, but the bill is not about that. It is tangentially involved.

There was also an intervention by the parliamentary secretary, who gave us a little lesson about the Canada Border Services Agency. It is helpful for the public to understand that this agency has some responsibilities and they are very serious and onerous.

What caught my attention about the bill is the whole area of the regulatory environment and the expansion of the regulatory reach, which is being enabled by Bill S-2.

I was curious at the outset as to why the bill, which was introduced in the House in the last Parliament, was this time put through the Senate. I will be the first to admit that Senate committees do better work than House of Commons committees for no other reason than their members do not have constituency responsibilities as well as some of the political responsibilities of members of Parliament. Senators are not spread as thin and they can look at bills carefully, and I noted a couple of items senators raised.

The bill passed in the Senate on April 23, about a month ago. It received a quick second reading here and went to committee where it stayed for one day. To me, second reading of bills is an opportunity for a few members to participate in a debate and to talk about their views or about their knowledge, but without having the knowledge of any witnesses or experts to find out exactly what the stakeholders have to say about charter implications or privacy implications. Did the Privacy Commissioner appear? What do airport authorities have to say about this? How do they feel about the changes that are being proposed to the Customs Act?

There is a major implication in Bill S-2 with respect to the way the Customs Act operates and the latitude that people will have. It touches very closely on charter rights, on personal information and electronic documents and on the facilitation of trade activity across our border. Bill S-2 touches on a lot of things, but committee had only one day to discuss it.

The committee met on May 26 and it reported today.

That raises the question about why the committee did not look more carefully at some of the substantive questions that have come up. I do not know why there were not the kinds of witnesses that would be necessary to expose risk areas. The previous speaker was a member of the committee, and I asked him a simple question: What is the definition of a customs controlled area? He was not aware. That definition is in the current Customs Act. I do not happen to have it with me.

There was a speech given earlier this day by a member who mused about whether or not a customs controlled area would include an airport parking lot, or certain other areas as opposed to what we would normally consider to be the customs area, where there are officers and people would be taken to be asked questions. Another question had to do with duty free shops which are customs controlled areas. Duty free shops are in the main part of an airport where the public is going.

This is sloppy. I hate to say it, but this is a sloppy approach to a bill that may have some consequences. When I rose to ask a question earlier, I asked about an area that I spent a lot of time on. It has to do with regulations. I am still not aware of the discussions and I have not had an opportunity to look at the discussions at Senate committee. There is a new section being added to the Customs Act, new section 164.1(1), which states:

A regulation made under this Act may incorporate by reference any material regardless of its source and either as it exists on a particular date or as amended from time to time.

Leaving out the time element, it says very simply that the regulation may incorporate any material regardless of its source. I was astounded when I read that. There are no restrictions. A regulation can incorporate anything. Why would a document be incorporated by reference? Take the example of legislation regarding a tax credit for people who buy tools. There may be an incorporation of the Income Tax Act by reference so that if people wanted to see the kinds of tools that would qualify, they could refer to that document. There is more detail. It is for clarification.

This new section that will go into the Customs Act says “any” document. From a lay perspective, I guess people would say that if there is a piece of legislation called the Customs Act, they can read it and see what the powers are. They can go to the regulations and see those. Members will know that we do not see the regulations on any act until after we have passed the legislation and it has received royal assent. Regulations are made by order-in-council.

This new section goes on to say that those regulations that we do not see until after we have given royal assent to a bill can incorporate by reference any other material. How is a stakeholder or interested party to understand the substantive point of a clause of a bill or an act like the Customs Act without seeing the regulations if they need some clarification? Now it has this other element of incorporation by reference of any other material.

If people are wondering whether or not they are going to be in compliance with the law, they are now almost forced to go to the regulation to see what documents or materials are incorporated by reference and then they are going to have to find those materials to see whether it is in context.

This is a very strange addition. I understand that the matter came up at the Senate committee. There were concerns raised. Here we are at third reading and I have heard a couple of speakers also raise some concerns. There are still outstanding questions about what constitutes a customs controlled area. This problem of the incorporation of any other materials that they want is still a concern. Are there still concerns about privacy? Are there still concerns about charter rights of individuals? Are there concerns about the impact of the authority that is going to be expanded and passed on to customs officers that may have some impact on the flow not only of goods and materials, but also of people? This is part of the economic equation.

Here we are at third reading. We still have questions. The House is not quite sure whether or not a customs controlled area includes the parking lot of an airport. The Greater Toronto Airport Authority has opined on this. It supports the bill. The GTAA supports the bill and feels that it will provide border services officers with the flexibility, and I stress flexibility, to examine goods and question and search people anywhere within customs controlled areas. Under the current Customs Act, the Canada Border Services Agency is only able to exercise this authority at exit points.

It is kind of broad. The Canadian Airports Council also is supportive and indicates that when it was first introduced, trade lawyers expressed concern with parts of the Bill S-2 that it might allow the government to pass regulations regarding what information or advanced data elements would need to be provided by exporters prior to the arrival of goods into Canada without much consultation. The council is concerned also with the extent of the information that will be required and how the requirements to gather and provide the information will affect exporters' trade with Canada.

This is very, very significant. The response of the GTAA and of the Canadian Airports Council about how this is going to impact the flow of people, the flow of goods. The bureaucratic requirement now is almost open-ended. It is almost as if all of a sudden those who have goods or services or other trade matters which come through border areas, or people, may now be exposed to a whole bunch of onerous requirements.

It raises the spectre I have asked businesses on many occasions. What can we do so that they can do more business and be more successful? Time and time again, they want us to reduce the bureaucratic involvement, the paper requirements, the disclosure requirements, the forms, the reporting. All of these things are very important, but the bill opens it wide where advance reporting requirements may bog the system down. It is going to have some implications.

This morning I was at the meeting of the Standing Joint Committee on the Scrutiny of Regulations. It is one of the least known committees in Parliament, but it has an important responsibility.

As I indicated earlier, when a bill comes before us, the House deals with it at second reading. It goes to committee. It comes back, perhaps with report stage amendments. We have third reading debate and a vote. When it passes here, it goes to the Senate and basically goes through the same process.

If a bill indicates that the minister may make regulations in certain areas, and this bill does, members of both houses have debated and discussed all their concerns without seeing the regulations. There is legislation that was given royal assent four years ago which still has not got the regulations in place. Many of the clauses in that particular bill are still not enforced because it is waiting for regulations.

It is so bad that a Senate private member's bill actually passed in this place which says that if a bill does not get royal assent or items are not proclaimed and enacted within 10 years, they will sunset. They will die. It happens; that is the reality.

Now we have a situation in this bill where the regulations are expanding the horizons by permitting incorporation of materials, any material, by reference. It will make it more difficult for people to understand what the law really says. It is the responsibility of the Standing Joint Committee on the Scrutiny of Regulations to be vigilant and to look at the regulations as they are gazetted to make sure that those regulations clarify or provide the additional information so that people understand what the clauses in the bill say.

There can be no regulations that are not enabled by the legislation. The legislation itself must have clauses that say that the minister can make a regulation to amplify or clarify the details. For instance, if there is a tax credit for tools, in the regulations there might be a list of the kinds of tools that would be eligible for a tax credit. That would be an example of a regulation doing what it should.

What has been happening for a long time is something called backdoor legislation. It is in fact putting into regulations intent or activities which have not been specifically enabled in the legislation. It means that the House of Commons and the Senate can do all their work, but once the bill passes and it gets royal assent, it then goes into the hands of cabinet. It is cabinet that does the regulations. Those regulations start to creep and have a broader implication to the bill. If we look at the regulations, our understanding of what the clause in the bill actually says may be different. It should not be. It should be the other way around. There should be no surprises in regulations.

I have some grave concerns about this. I do not think there is anything I can do about it. I will say that the potential implications concern me. It concerns me that the committee seems to have given it fairly short shrift. That is problematic. There are potentially some sweeping implications of this. There have been some assurances given with regard to the charter issues and privacy issues. I would have had a greater comfort level if the representatives from the Office of the Privacy Commissioner had been there to give their view to the committee about the privacy considerations, because if a customs controlled area is much broader than we think it is, the public could be subjected to questions on any matter that someone has a reasonable suspicion to think might affect the Customs Act.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I was heartened by the member's comments about how well the committee works together. This is a minority Parliament and that is exactly how these committees should work, unlike in the last Parliament, where there was a lot of acrimony. I think maybe we are moving forward when we can work together as a group and get things done for the people of Canada.

I note that the Auditor General did a report on the Canada Border Service Agency and found that the border services officers did not a have a clear authority to search for or seize counterfeit goods, which is an emerging area and a very large area. She states:

The Agency has established policies and procedures; however, at certain crossings, we noted poor control over the administration and handling of seized goods, such as alcohol and firearms.

Bill S-2 includes requirements pertaining to advanced information and expanded search powers for officers. Would these requirements lead to decreased amounts of dangerous and illicit goods entering Canada through customs controlled areas?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I rise today with pride to support the bill on behalf of our caucus and our leader.

The bill before us is Bill S-2, An Act to amend the Customs Act. We are very pleased to support the movement forward of the bill, because we have examined its provisions carefully, and although we have some small concerns, which I will itemize later in my speech, fundamentally it is a sound bill that will do much to both preserve security at our borders and enhance the movement of goods and people through those borders.

The bill really does a number of things. It provides legislative changes that are needed to provide a lawful basis for and allow the full implementation of previously approved key programs. These amendments will strengthen risk assessment, enforcement, trade facilitation and security.

The bill also embraces a number of technical and housekeeping changes that are required to implement the programs that I mentioned earlier, which have been put in place in the past several years.

The bill contains key amendments that provide a concrete response to a number of security concerns noted in the October 2007 report of the Auditor General.

The Canada Border Services Agency employs three fundamental strategies for managing the border. One is pre-approval programs. These programs are to expedite the movement of low-risk goods and people and to allow for strategic focus of resources on people and goods of higher and unknown risk. By focusing on the latter, we can more easily, quickly and with less interruption expedite the flow of the former.

The second strategy is advance information. The bill is intended to help stop threats before they reach our borders and to facilitate border processes for legitimate trade and travel.

The third is to turn information into intelligence. Because the Border Services Agency relies on sophisticated risk assessment systems based primarily on modern technology and techniques and the expertise and experience of employees at home and abroad, we need to ensure that they have the tools and the legal framework to allow them to carry out this important task.

The first major area where the bill improves Canada's border efficiency and security has to do with the new e-manifest system, which is really a commercial information system that will require carriers of goods and people coming into Canada to transmit that information in advance of coming into our country. That will provide our Canada Border Services Agency personnel with the ability to make more informed risk assessments, and conversely, allow through our borders the more free movement of people and goods that do not really present a risk to our country.

The current program, which is being amended by the bill, requires the owner or person in charge of the conveyance of air and marine modes to provide commercial information electronically prior to entering Canada. The regulations that we are proposing address the time, manner and data requirements, to require all links in the import trade chain to provide CBSA with this advance information. In other words, not just the owner or person in charge of the conveyance, but all links in the import trade chain will be required to furnish information in advance.

The rationale for this is that by providing advance electronic data, CBSA will be able to better target high-risk shipments while streamlining the entry of low-risk shipments. Without the amendment, compliance at present is on a voluntary basis.

Electronic reporting would also remain streamlined and timely, reducing the dependency on paper filing, and this is demonstrative of the commitment to sustainable development.

Many of the commercial carriers in our country, customs brokers and importers, would be able to more efficiently move their goods through our country's borders. Because they will be able to file their information electronically, it will be quicker and better for our environment.

I am happy to say that there have been external consultations. The source of focus in the committee's study of this bill was to ensure that the people who would be most affected by this change both understood the changes and that their views and ideas were taken into consideration. I am pleased to say that was done.

Trade chain partners in marine, air, highway, rail, importing, freight associations and brokers involved in various stages of the import chain have all been informed and consulted about this bill. We in the New Democratic Party will work to continue to ensure that the trade community will be consulted throughout the design, development and implementation of this project.

The second major area that this bill pays attention to has to do with the creation of what are called customs controlled areas. The current legislation designates customs controlled areas to be secure areas controlled by CBSA where international uncleared goods or persons may come into contact with domestic goods or persons, such as, for example, in airport lounges or areas on airport tarmacs.

Border officers currently have the authority to only question and search individuals when they are at exit points. In other words, all persons leaving a customs controlled area must report to a border services officer. The proposed amendment in this bill would retain the customs controlled areas and would not expand the powers of the Canada Border Services agents whatsoever.

What it would do is provide officers with the authority to stop, question and potentially search individuals within the customs controlled areas, not just at exit points. People would still be obligated to report to Border Services officers upon request but it would remove the onus on all persons to report upon exiting the area because now the officers would have the clear legal authority to stop people.

The reason we believe this amendment is a positive step is in areas where there are domestic workers, domestic goods or even domestic citizens coming into contact with international passengers or goods, there is the potential for security breaches. If people are entering and exiting these areas many times a day, taking the example of workers going in and out of customs controlled areas, it is simply beyond the resources of CBSA to follow and question those people each and every time they exit the area. It is a more efficient use of resources to grant the power to CBSA officials to stop higher risk or suspicious activity within the area.

This also would liberate people who go in and out of the area frequently from having to stop and report every time. It has a dual advantage, in my view. It both increases the efficiency and effectiveness of our CBSA officials and it is less of a burden on those who need to go into and out of customs controlled areas on a daily basis.

We also think these changes would improve the security at these points because testimony in committee indicated that it was these areas where conspiracies may develop. This is where people can meet within the customs controlled areas and potentially make arrangements that may allow for dangerous goods, services or people to travel in and out of our country. We think this is an important part of our security.

Once again, I want to make clear that there are no additional powers beyond what are currently given to the agents at our borders. It is simply a more effective means of delivering those powers.

This bill also contains other technical and housekeeping amendments, which I will not go through, but I will highlight some of them. There are amendments to valuation provisions that would make the act consistent with the WTO customs valuation agreement that Canada ratified in 1991.

There is a technical amendment to the advance passenger information personal name record program that would help clarify and make existing mandatory obligations for commercial carriers to provide passenger information electronically within prescribed time limits. Currently, there is no time limit on it. Carriers are required to provide that information prior to entering Canada or within a reasonable time of landing. These amendments would require that all information be provided prior to arrival in Canada, which would assist our personnel in processing the information and speeding up the process.

Language inconsistencies will be corrected, particularly with respect to ensuring that the French version of the legislation corresponds better with the English version.

I want to mention some of the concerns with this bill because the bill is not without its areas of concern. First, this bill does not delineate what exactly a customs controlled area is, rather, that is left to the discretion of the minister, which is somewhat concerning. Parliamentarians will need to be vigilant to ensure that the way the minister designates these areas does not go beyond the purpose of the bill. There has been some suggestions that customs controlled areas may include duty-free shops and, as was raised some time ago by my hon. colleague from Burnaby—Douglas, may be extended to parking lots.

We need to be vigilant to ensure that the areas are restricted to the bare minimum in order to attain the object of the bill, which is to control the areas where international and domestic persons and goods intersect at border and customs controlled areas.

Second, another area that is left to the minister's discretion is the minister's ability to exempt certain persons from the requirements to be stopped within customs controlled areas. I asked a question on that at committee to ensure I understood the rationale for that. The answer was that this was for perhaps diplomatic personnel or emergency personnel, like ambulance or medical personnel who are rushing to an emergency, those kinds of things.

However, that is another area where we must be vigilant to ensure is controlled. It does no good to say that people entering the customs controlled areas are subject to search and questioning and then to allow the minister to exempt classes of people. We need to be sure that list is small and carefully justified.

There were other areas of concern that we on the committee and in our party were vigilant to ensure were taken into account in this bill. We received assurances that the Charter of Rights and Freedoms would apply to people in these customs controlled areas so they would not be subjected to unreasonable searches and seizures. We wanted to ensure privilege would be respected. Many times lawyers travel through these areas and many of them have material that relates to their clients' privileged legal interests. We wanted to ensure their privilege was respected and that their material would not be subject to search and seizure.

We wanted to and did inquire into privacy concerns to ensure people's privacy interests were respected. I must say that is an area that is unclear at this point and, as parliamentarians, we must be vigilant to ensure the privacy interests of Canadians are respected in these areas, as they ought to be across our land.

We asked questions and ensured there would be plans to have proper training for all the CBSA officials, who may need to implement these broadened powers, to ensure they would be respectful of the issues that I just mentioned and effectuate their powers in a manner that is responsible and lawful.

We wanted to ensure, and did ask questions, that there would be adequate safeguards around the information or goods that are detained or seized. We wanted to ensure that the length of time the information or goods would be retained would be limited and that there would be restrictions on the disclosure of that information to third parties. We wanted to ensure the information would not be used for purposes beyond that for which it was garnered in the first place. We wanted to ensure information would be carefully controlled and, ultimately, disposed of, returned or destroyed so that it would not get out of the lawful possession of those who had an obligation to guard the privacy interests pertaining to that information.

Last, we wanted to ensure that the workers who had to work in customs controlled areas were informed of their rights and had their rights respected at all times in the implementation of this legislation.

Having said all of that, I want to congratulate the government for bringing forward this bill. We think it is measured and administratively well drafted legislation which, I might add, passed through committee with the unanimous support of all four parties. It is a model of how this Parliament can work when all four parties put aside their partisan differences and work together to try to provide solid, reasonable legislation.

I would like to congratulate all members of the committee from all parties who worked co-operatively and constructively to ensure the legislation was moved forward in an efficient, effective and logical manner.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am pleased to speak to Bill S-2, An Act to amend the Customs Act, on behalf of the Bloc Québécois. The summary of the bill reads as follows:

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.

This bill is not very long. It has seven pages excluding the summary. I would like to start by saying that the Bloc will be supporting Bill S-2. This bill is designed to provide Canada Border Services Agency officers with the information, tools and 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 electronic information, the CBSA will be able to make better decisions about admitting goods and analyzing the risks they pose to Canadians.

Other changes will allow the CBSA to fully establish customs controlled areas. Officers will enjoy greater freedom to examine goods and question and search people, regardless of where they are in these areas, not just at exit points, as the current law states.

Although Bill S-2 seems all right at first glance, it will be necessary to have ongoing follow-up and close questioning of representatives of the Canada Border Services Agency and the government.

The Customs Act makes the connection between the customs provisions that impose duty and tariffs on importers and the security measures in various other laws.

The bills' proposed amendments to the method of calculating the value of imported goods could reduce the number of disputed duty calculations. Moreover, revenue from duties could increase if the value of goods imported were more likely to be adjusted upward as a result of the proposed changes to the methods for determining customs value.

The purpose of the provisions of the bill that require information to be provided in advance is to improve the risk assessment of goods at the border. Combined with the broadened search power for officers in customs controlled areas, this measure could reduce the number of dangerous counterfeit products entering Canada through customs controlled areas.

At the present time, border services officers may search persons only when they leave controlled areas. If the bill is passed, in future, it will be possible to do that inside the controlled area itself.

When the bill was being examined, the vice president of the CBSA said the following:

Currently, 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.

It will therefore be necessary to ensure that this follow-up takes place. We are told that officers will be trained and that notice will be given. Therefore, care must be taken to respect individual rights and freedoms by ensuring that the officers will indeed be properly trained and will give the necessary notification.

The Minister of Public Safety has given assurance that officers conducting a search will be subject to the requirements of the Canadian Charter of Rights and Freedoms with respect to protection of the constitutional rights of the people being searched. The minister has said so, but care must be taken, once again, to ensure that the government will not take advantage of this to go beyond the limits of the Canadian Charter of Rights and Freedoms, for instance.

It is all well and good to say that, but this bill also gives the government regulatory authority to establish and expand customs controlled 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 officers would be disproportionate. Consequently, it will be necessary to constantly monitor how the Canadian Border Services Agency and the government are implementing these provisions.

The Conservative government is constantly introducing security-related bills and bills to amend the Criminal Code and including a little poison pill to try to push their right-wing agenda even further. We will have to watch this preoccupation with security. Under the bill as drafted, these controlled areas, in which border services officers could take action, could be expanded to cover an entire port or airport, including parking areas. Imagine the anarchy that could result if we do not exercise appropriate control and we let right-wing philosophies dominate security. It would be quite a worry for the people using these spaces.

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. Both the airport and port authorities want greater flexibility and new areas. But the port authorities were clear that the areas should be close to the ships. We are not talking about the entire port. It is therefore important to be careful.

The men and women who are watching this debate need to understand that the Bloc Québécois will always defend security, of course, but will also protect the interests of individuals. People's rights should not be violated because they happen to be at an airport or port and someone has decided to conduct full searches because those in charge, specifically the government, have been allowed to go overboard on security. Obviously, once again, the Bloc Québécois will make sure people's rights are respected.

I would like to summarize the bill's timeline. It was introduced by the Leader of the Government in the Senate on January 29, 2009, passed at third reading on April 23, 2009, and sent to the House. We have just received it. It is exactly the same as a bill with the same number and title introduced on December 2, 2008. Bill S-2 was introduced on December 2, 2008. It is also identical to Bill C-43, which was introduced on February 15, 2008, during the second session of the 39th Parliament. These last two bills died on the order paper when the government called an election.

Once again, they say the matter is an important one, yet it was more important for the Prime Minister to break his promise about fixed election dates last time. He got himself a second minority government. Once again, it is clear that the Conservatives always think that they are the best. Now this is where they have ended up, and they are getting worse and worse day by day. That is a fact. We all knew it, and now everyone knows it, everyone in Quebec, at least.

It is becoming clearer day by day that the government is no longer able to govern. It is out of touch with what people want. Of course, when one has a right-wing philosophy, one always thinks that one is right and that everyone else is wrong. If the Conservatives carry on doing what they have been doing, they will be wiped off of the Quebec electoral map, and I, for one, will not mourn their fate. It is so disappointing every time government members from Quebec get brainwashed by the party's right-wing philosophy. They will get what is coming to them: a straightforward invitation to go back to where they came from.

This bill imposes additional requirements with respect to customs controlled areas, grants the minister the power to authorize entry, and amends provisions respecting the determination of value for duty and advance commercial reporting. It gives customs officers the power to search people and their goods while those people are in or are leaving a customs controlled area.

What I just said is important because customs officers in these specified areas will have more power. We are concerned that the government plans to expand that area to include entire airports and even parking lots.

First of all, more customs officers will be required to ensure proper control. Will they be properly trained? Will they respect the Charter of Rights and Freedoms? We can see the Conservatives' right-wing philosophy lurking behind this. It must be curbed, and once again, the Bloc Québécois can be counted on to do so.

The bill also states that regulations may be made stipulating when and how persons covered by the regulations may provide information on travellers.

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 regularly in response to free trade and related international agreements and to fine-tune international trade measures.

This is why the Bloc Québécois wants to cooperate. Yes, there are new international standards, yes we trade with other countries, such as the U.S. Yes, from time to time our customs legislation needs updating. On the other hand, we must not go too far. Once again, the Bloc Québécois can be counted on to do so.

I will take a few of the clauses in Bill S-2 as introduced, and give some comments on each if I may.

Clause 2 eliminates the requirement for the minister to make a regulation to grant access to a customs controlled area to any person.

Once again, care will have to be taken to ensure a degree of transparency with respect to the minister's powers.

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.

Obviously, greater monitoring is a good thing. That is the reason, among others, that the Bloc Québécois will support this bill.

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.

Understandably, the size of this area is important. That is why we have said from the beginning that we will have to be extremely vigilant concerning how this government will enforce this clause and how the minister will decide to increase the size of this area. Clearly, port authorities want this area to be expanded to all locations near vessels, but they did not ask that this apply to the entire port area, included its parking areas. Thus, we must be vigilant about how clause 4 is applied.

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. Accordingly, a regulation defining those prescribed persons will determine who must report the imported goods at the nearest customs office.

That is good. The purpose of this standard is to harmonize international trade practices and ensure that the individual who is transporting the goods is obliged to declare them, and not the person in charge of the conveyance, as was the case under the former legislation. This will shed an important new light on the matter.

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.

Every time we talk about providing information on passengers, the Bloc Québécois is very concerned about privacy issues. We can never do enough to ensure that this information does not fall in the hands of people who will use it for nefarious purposes. It is therefore important to track it and ensure that the information on passengers provided to the agency will be properly protected.

Clause 7 amends the methods available to adjust the transaction value of the goods being imported when the vendor receives a benefit from a subsequent sale. This may lead to higher valuations and therefore higher duties being paid by importers.

We have seen that, in international trade, duties must be paid on the value of goods. So this clause proposes somewhat of an adjustment. Manufacturers in Quebec and Canada are sometimes under intense pressure from competitors in emerging countries and foreign competitors, which use pricing that is not in line with the actual value of the goods. This provision will make it possible to establish balanced tariffs, which can only promote international trade and, as a result, our businesses.

Clause 10 amends the act to authorize a customs 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.

Therefore, the bill expands the officer's powers and rights to search a person who is in or is leaving a customs controlled area. Previously, the person did not have to deal with officers unless that individual had registered or gone through the service. In future, officers will be able to stop and search a person no matter where that person is in a designated area.

Clause 11 amends the act so that a customs officer may, in accordance with the regulations, 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.

The officer can not only search the person, but also conduct a non-intrusive examination of goods in the person's possession.

The goal of the Bloc Québécois has always been to ensure the highest level of safety in areas under Canadian control or jurisdiction. That is the reason we wanted to make sure we discussed this bill. We understand that it is in our best interests to protect personal rights, and that is why we need to be extremely vigilant when it comes to expanding controlled areas, and ensure that the Canada Border Services Agency and the government do not make excessive demands.

In conclusion, take the example of the port authorities. They told us what they needed, specifically, for the controlled area to be expanded to include areas near the vessel. But they never said that it would apply to the entire port, the connecting parking lot, and so on. When the controlled area is too large, we cannot ensure that the employees have the appropriate training or that individuals are informed of their rights.

Again, we are interested in protecting the rights of individuals, passengers and those who administer the service.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, first, I would not want to trash our best neighbour and biggest trading partner on its efforts at security.

Bill S-2 is about making trading simpler, easier and faster, and at the same time safer within our country. The whole premise of Bill S-2 is to make Canadians safer and more secure.

It is not only about trading directly north and south. It is also about trading east and west at our ports and our railways. We should not look at Bill S-2 as something that is intended only to speed the flow north and south. It is to make Canadians safer and to speed the flow east, west, north and south. It does that in a way that is appropriate and also makes an area within our country safer and more secure by giving those tools to the CBSA officials to carry out their task in a more efficient way.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, the issue the member raised is the exact opposite of what this bill is about.

Bill S-2 is about people coming to Canada, not people going to the United States. The issue that he raised, although it is a significant issue and is of concern, is a situation of going into the United States where the bus was stopped and the individuals were checked, and it would have been the information that they had.

I have no real information on the NEXUS program other than to say that we do know that it is being taken up. As the member may be aware, some folks are comparing the NEXUS program with the passport, and are deciding that the passport may be the choice for them, but it is certainly one of personal interest.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I thank the member for giving us a briefing about the Canada Border Services Agency.

Bill S-2 is a tidy-up bill which provides some amendments. I wonder if the member could shed some light on one clause that caught my attention. It is the very last item that has been added. New Section 164.1(1) states:

A regulation made under this Act may incorporate by reference any material regardless of its source and either as it exists on a particular date or as amended from time to time.

I am a little concerned because I have not seen this type of language before in all the years that I have been here. I am wondering whether the member is aware of why this has been put in the bill. It basically says that any document can be referred to in any regulation, which can be made by order in council at any time and in any document whether or not it is relevant.

My concern is from the standpoint of bringing in or by incorporating by reference intent or basis for the Canada Border Services Agency to do or not do certain things which may not be enabled in the legislation itself. It is a very sweeping undertaking whereby any document can be incorporated by reference. It is, in my view, far too broad and not generally prevalent in bills having regulations.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I rise today in support of Bill S-2, An Act to amend the Customs Act. Now at third reading, this legislation has made its way through both Houses and their respective committees. At each stage the bill has received broad-based support, and this is because it speaks to some universal priorities. Canadians want to be safe in communities; they want the Canada Border Services Agency to have the resources and flexibility to address risk on any scale, in any form; and, finally, they want to have the opportunity to travel and do business freely and securely.

I want to emphasize for the House that the amendments contained in Bill S-2 address these priorities directly. In the simplest terms, the amendments would improve the ability of the CBSA to carry out proactive risk management, which is a key component of modern border management. Effective border administration requires a comprehensive array of programs and policies that combine in response to multiple challenges. These include contraband, illegal migration, health and safety, organized crime and terrorism. They change over time, and our defence against them must also evolve in kind.

The amendments in Bill S-2 acknowledge the new face of border security and equip our border services officers to contend with it.

At the same time the bill is designed to allow an equally rigorous approach to facilitating cross-border trade and commerce. Responsibility for maintaining this balance is the foundation of the CBSA. The agency provides integrated border services that support national security and public safety priorities as well as facilitating the free flow of legitimate persons and goods.

The reason for bringing this bill forward is to give the CBSA greater scope and flexibility as it discharges that dual mandate. The more information the agency has concerning potential threats, the better equipped it is to deal with them in advance of their arrival on Canada's doorstep.

Bill S-2 contains several amendments to the Customs Act. I am going to focus on two in particular. These amendments would fully implement two programs, both of which have been approved and funded by the Government of Canada: the advance commercial information initiative, known as eManifest; and customs controlled areas.

First, the need for fully operational customs controlled areas comes in response to the threats of internal conspiracy and organized crime that can arise in the busy atmosphere of a port. Our border services officers need to have the flexibility to perform stop, search and seizure functions at any point during the transit of goods and people through a port.

The passage of Bill S-2 would give border services officers the ability to question, search or detain anyone suspected of an offence, not only as that person exits the designated area but anywhere inside as well. This would improve the agency's ability to intercept contraband and other illegal items before they enter the country and to combat internal conspiracies at points of entry.

The e-manifest is the second program that would reach full implementation with the passage of this bill. This is a substantial project premised on the idea that CBSA ought to be receiving electronic information on cargo destined for Canada in advance of its actual arrival. This would permit the agency to make more incisive risk assessments prior to arrival.

The e-manifest is the third stage of the advanced commercial information initiative. It would extend requirements already in place in marine and air to the highway and rail modes of transportation. This concluding phase would enable comprehensive assessment of all cargo prior to arrival at our border. In turn, this would mean that less processing would be required upon arrival and legitimate commercial goods would enter Canada more swiftly and with fewer disruptions.

The eManifest is a substantial project, designed to improve the flow of goods and to secure and streamline the process by which legitimate goods are cleared. It would have major consequences for the agency's partners in the trade chain. With eManifest, industrial stakeholders would be facing a new compliance paradigm in which information is requested well in advance of arrival, which would allow for a more thorough risk assessment by CBSA.

It is critical that the agency be in tune with the concern of stakeholders as this project approaches implementation. The best way for CBSA to ensure that its commercial partners comply with changing requirements at the border is to build trust with them. For that reason, the agency has consulted thoroughly throughout the initial stages of eManifest, and these consultations are ongoing.

This government is committed to preserving Canada's reputation as a welcoming and free-trading nation. At the same time, we are cognizant of the scope and evolution of border threats. The Canada Border Services Agency does an excellent job of ensuring the integrity of this balance, and it is up to us as parliamentarians to support it in that role.

I am going to conclude my remarks with a call to all members of the House to see Bill S-2 through third reading. The legislation addresses fundamental concerns. Do the people who manage the vast movement of people and goods into Canada have the right tools at their disposal? What do they need to do their job better? These are questions we must ask repeatedly because international border management is a field that is constantly evolving.

This legislation acknowledges the challenges faced by the Canada Border Services Agency, and I believe it would be instrumental in giving the agency what it needs to do its job.

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

Mr. Speaker, I appreciate the opportunity to speak to Bill S-2.

The concern about S-2 is that this may well just be one more layer of protectionism. It has gone through all stages in the Senate and has gone through all stages in the House. It is here in the final stage of the House, but it imposes additional requirements in customs. It expands the research powers of customs officers and provides for regulations of passengers.

This is an interesting coincidence of time but as of June 1 there will be something in the order of 30% of Americans who can come to Canada and that means of course 70% will not be able to come to Canada because they do not have valid travel documents. It means that 53% of Canadians will not be able to travel to the United States.

I do not think that is very good for either of our countries. In the name of the security business, such that common sense seems to get trumped by security and the economy seems to get trumped by security, all in the name of security, we continue to thicken the border. Regrettably, Bill S-2 seems to add to that trend.

We recently had a visit from Secretary Napolitano and she spent a lot of time apologizing for remarks that she had made. I am prepared to accept her apology at face value. I wish also Senator McCain would do the same thing in recognizing that the 9/11 terrorists did not come from Canada.

Unfortunately, this reflects a mentality that is in America, particularly in homeland security. I note that homeland security is subject to the effectively buy American policy. I want to point out that the buy American policy is really like loading a revolver and pointing it at one's head. There are something in the order of 17 million jobs in the United States which would be directly affected by this buy American policy.

It so happens that I was at the National Prayer Breakfast this morning. It was really a very impressive event. I happened to sit beside a gentleman who has two factories in Scarborough and a head office in Mississauga. It was his company that supplied the piping and fitting to the American military installation in California.

This company has been in business since 1949. It has literally supplied piping that would circumvent the globe 150 times. It has been in business since 1949, never had a lick of problems shipping its product across the border and yet at this military installation they put the piping in the ground but because it has a made in Canada label on it they ripped it out. That is homeland security. That is the U.S. military. That is the recovery policy of the United States.

That seems to me to fly in the face of President Obama's words when he was here in this country. He said, “We affirm the commitment made in Washington: to refrain from raising new barriers to investment or to trade in goods and services, imposing new export restrictions, or implementing World Trade Organization inconsistent measures to stimulate exports. In addition we will rectify promptly any such measures. We extend this pledge to the end of 2010”.

His secretary, Tim Geithner said, “The G7 remains committed to avoiding protectionist measures, which would only exacerbate the downturn”. He repeated on April 24, “The United States of America will refrain from raising new barriers to trade in goods and services”.

One would have a great deal of difficulty convincing the person with whom I had breakfast this morning that these fine and brave words of free trade are anything other than fine and brave words.

It is time that we actually stand up for Canada. It is time that the government stand up for Canada. It is time that the Conservative Party lives up to its slogan from the last election to stand up for Canada. The only person who can reverse these protectionist measures in the United States is by the Prime Minister of Canada picking up the telephone and talking to President Obama. I have yet to know, at least in a public way, that the Prime Minister has made that telephone call.

When we sign an agreement with the United States such as the secretary of state signed with her counterpart here this week that enhances security for both of our countries, surely to goodness we can expect to be treated in the same manner as a most favoured nation. Surely to goodness when a trade is so voluminous that it is the largest trading relationship in the world, we can expect to be treated in that fashion. And surely to goodness we can expect that President Obama or Congress or whomever will say to state and municipal counterparts that there is no protectionism within the United States with respect to its stimulus package. Surely we can expect that, and surely we can expect the Prime Minister and his ministers to raise that issue at each and every opportunity, because what it leads to is something that none of us wants to contemplate.

My colleague from Eglinton—Lawrence went on at great length this morning about the difficulties facing our nation with respect to this apparently unanticipated deficit. If we end up in a protectionist spiral, we haven't seen anything yet. Indeed, both of our economies will be tragically affected if the things that my friend at breakfast described to me go across the board, that anything with a label such as made in Canada will ultimately be rejected by American states, American military, American municipalities or other American entities that are doing stimulus infrastructure projects.

On November 15, the G20 issued a statement in Washington, D.C.:

We underscore the critical importance of rejecting protectionism and not turning inward in times of financial uncertainty. In this regard, within the next 12 months, we will refrain from raising new barriers to investment or to trade in goods and services...

Yet the Recovery Act also creates an entirely new domestic content requirement for Department of Homeland Security acquisitions by prohibiting the DHS from using any appropriated funds, not just recovery funds, but appropriated funds, to acquire clothing, individual equipment, a long list of textile products, unless they are made in the United States. It is noteworthy that DHS procurement is not subject to NAFTA.

So there we have it. The Department of Homeland Security is in a league by itself; it is in a law by itself. Not only does it thicken the border unilaterally by all kinds of measures, but it does so to the detriment of both of our economies. If this trend continues, this double trend of homeland security, thickening the border and this protectionism, both direct and indirect, will destroy both of our economies.

While we are supporting Bill S-2 and we think there is some good in here, we are very, very concerned with these additional requirements, which are in fact non-tariff barriers.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, the member discussed at length many issues unrelated completely to the bill we are discussing this morning. Because he did not have the opportunity to speak to that during his lengthy discussion and ramblings, I would like to ask him this question. What is the Liberal position or maybe his own position as to what technical changes within Bill S-2 he would like to see modified or changed? Is he specifically supporting the changes and provisions within this bill and does his party intend to support this bill?