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

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I did not attend the prayer breakfast, so my views are not laced with any religious forbearance but with specific interest.

I can appreciate that my two colleagues are trying to be collegial, and it is important for this place, but I am going to ask my colleague, the member for Scarborough—Guildwood, to address the following. When the minister opposite asks what he would you do, that is an unfair question. He is not in government. He does not have to address that. The government has an obligation itself to address that question.

Keeping this in mind, the Department of Defense in the United States has an annual budget that exceeds the total Canadian government's budget by more than 100%. In other words, every year they spend more than twice as much as the entire Canadian government does. Its procurement policies are shutting out Canadian industries.

I would like to ask the member for Scarborough—Guildwood to raise that issue with the minister and the government opposite about what they are doing to ensure that Canadian providers are not shut out of that kind of market.

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

Mr. Speaker, we certainly still have space available at the national prayer breakfast. I am sure my colleague will be more than happy to be there next year. We will save a special place for him.

Under the Trade Agreements Act of 1979, the President may waive, in whole or in part, with respect to eligible products of any foreign country, the application of law, procedure or practice regarding government procurement. The Prime Minister, the Minister of International Trade, any minister on the front bench can raise that with the president and should do so immediately.

[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.

[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, Oxford, ON]

Mr. Speaker, my understanding is that particular section received a great deal of scrutiny as it went through the other house. If I am correct in my understanding, it was, in the simplest of terms, placed into the legislation so that as world trading evolves, as different things occur, not in a major way but in a minor way, the regulations could be adopted as opposed to bringing the bill back to make amendments to it. I do not believe it goes beyond that scope.

I believe that issue was widely addressed in the other place and I believe amendments were made at that point.

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

Mr. Speaker, last June the Chief Peguis Junior High School in Winnipeg bused a track and field team to the Hershey's Track and Field Games in North Dakota. The required manifest was given to customs 48 hours in advance, and yet when they showed up at the border, one of the athletes, a 14 year old, was taken off the bus, fingerprinted and sent back to Canada.

I took this up at the Midwestern Legislative Conference last July in Rapid City, South Dakota. For the second time ever in our membership, we were able to pass a resolution asking Canada and the United States to come up with a more consistent program which would be easier on seniors' bus tours and children's athletic tours such as that one.

Letters were sent off last July to the Prime Minister and to the president. I never heard another thing about it. I am just wondering whether some of those thoughts were reflected in this legislation.

I would ask the member about the success of the NEXUS program. I have heard different things and I understand it really has not developed in the way it was supposed to and there is not a huge uptake in the program. If the member has any new information about that, I would certainly like to hear it.

[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.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, my hon. colleague opposite tries to give us a good impression about what this legislation attempts to do and I applaud him for that, but it is tinkering. We will support that tinkering because there is always an opportunity to improve things, and as long as we are improving things, that is fine.

However, the parliamentary secretary knows quite well that the Department of Homeland Security in the United States had an initial budget in excess of $70 billion. It is now closer to $100 billion. Its tactics can be interpreted as being designed in part to stem the flow of trade in order to meet the needs of protectionist elements in the 30 states that the minister opposite also indicated are dependent upon the two-way trade.

Perhaps he could tell us whether his minister or his government has made determined efforts to get across to the authorities, such as Ms. Napolitano who was here just a few days ago, the firm impression that we need to have bilateral observance and adherence to the NAFTA that was signed by our two countries, and that the articles under that agreement, if they are worth signing onto, are worth obeying.

I am wondering whether he thinks that legislation such as this will reverse some of the negative impacts of a $100 billion budget to stem the tide of north-south free trade.

[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.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I wanted to ask the parliamentary secretary if he could reiterate how this legislation is going to help with the flow of illegal handguns and illegal arms into Canada.

We know that that is the main security issue of the Canada-U.S. border for many Canadians. Certainly people in my riding are most concerned about that. This is an important issue. Hopefully this legislation will go some way to improving our record on preventing that flow of illegal weapons into Canada from the United States.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, it is an appropriate question and part of this is in the custom controlled areas, which gives the CBSA officers far more opportunity do their jobs appropriately in a broader context within the areas where goods are being brought into Canada.

As Canadians we are always concerned about the illegal flow of illegal weapons. By supporting this bill, it goes at least some way to doing just that.

[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.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I want to thank the member for his speech this morning because he has raised and highlighted some very important issues.

I was most interested in his fairly detailed discussion of customs-controlled areas and the possibility of their expansion to include areas like as parking lots at airports, and the civil liberties implications of doing that and the requirement that we be vigilant about how that work is actually done.

I wonder if he could tell me whether there was any attempt to change this bill to further qualify those customs-controlled areas. I do not think there were any amendments at report stage on the legislation.

I also wonder if he could say whether there is any implication for folks who work in areas like parking lots or other areas outside of what we would normally see as a customs area at an airport or a port, whether there are any security clearance concerns for workers in these other areas that may impinge on their ability to get those kinds of clearances in order to work in those areas should they be expanded to cover areas outside the normal airport or port areas.

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

Mr. Speaker, I thank my colleague for his question.

The problem is that the minister is the one with the power to establish the area. What if we had challenged the minister's power? If we had, the bill would have included provisions defining the areas involved. It was complicated. We have to see how this plays out. In theory, it would have been very hard to pinpoint controlled areas in every port and airport. The minister needs to have some power.

Many laws give the minister power. It is fine to give a minister power, but when that minister is a Conservative, with the Conservatives' right-wing outlook that sees evil lurking everywhere—that is pretty much their problem—well, that is when we need some safeguards. My colleague is right. That is why I mentioned port authorities that said they needed a larger area around vessels. We will have to be vigilant and make sure that the government does not go too far and include the entire port, as well as parking areas. Parking lot workers and people working anywhere within the area may not be put in harm's way, but they may fall under suspicion and be subjected to searches. Imagine the consequences of going too far with security.

Our concern is based on the fact that responsibility for security will be given to a Conservative minister. As we have seen, the Conservatives tend to go too far and see evil everywhere. Perhaps they should look within their party instead.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I would like to say something to the member for Argenteuil—Papineau—Mirabel in response to his last comment on the governing party's natural tendency to lean towards the right, that is, the government is so concerned with the evil it sees everywhere that its bills no longer reflect a basic ideology. I think—and I do not know whether the member will agree—that we should apply the following ideology: bills such as this one should benefit the public, businesses and individual rights. So we could judge the entire bill using those three categories.

Does the member think that this bill, which originated in the other chamber, not this one, respects these three categories? Or does the member think that the bill is simply an attempt to correct existing problems, or problems that simply do not exist because the other jurisdiction, that is, the U.S., requested it?