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

[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?

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

Mr. Speaker, I want to thank the member for Eglinton—Lawrence for his question.

Law is symbolized by the scales of justice, which, in their own right, symbolize balance. If I were asked whether the Conservative party is balanced, I would not be the only one to say no; all Canadians now see that it is not. When the Leader of the Government in the Senate, a Conservative, introduces a bill, we always have to be careful. In this case, we have to be careful in considering the size of the areas targeted by this bill, the control areas that could be expanded by the Conservative minister. We need to be careful because this expansion could affect the rights of workers, individuals, passengers and those who use all port and airport areas.

I explained why putting forward such an amendment is so complicated. Amending a bill so that the members can define the boundaries of each port and airport would have been a monumental task. We now need a part of this bill in order to do business with other countries, and that part is valid. But we always have to watch for the poison pill that the Conservatives slip into a bill. They do it every time security or justice is involved. They do not keep the scales balanced.

[Roger Pomerleau, Bloc, Drummond, QC]

Mr. Speaker, I thank my colleague from Argenteuil—Papineau—Mirabel for his speech, which was excellent as usual.

Yesterday, I happened to be taking someone else's place on the Standing Committee on Public Accounts. I was totally amazed to learn in a report from the RCMP representatives who were present at the meeting, that there are 60 cases of people with criminal records or direct links with organized crime working in Canadian airports at this time.

We also learned, in a CBC report two years ago, that customs officers were complaining about being pressured by questionable people to not inspect certain incoming planes. To our utter amazement, when we questioned the people responsible for airports testifying before the committee, we learned that they did not carry out any serious investigations when they hired airport staff. They do a minimal investigation but do not, for instance, go to the extent of asking for police checks. They were entitled to ask the RCMP for these but they cited protection of privacy.

The people who work in airports are thinking at this time about finding a solution to this problem. They want to have job applicants sign a form authorizing the airports to carry out a check, or get one done by the RCMP, as a minimum. Even MPs have to sign an authorization for a background check when they decide to run as candidates, and this is a minimum.

When my colleague calls for vigilance as far as the rights assigned to the minister to further increase the parameters of the law, ought we not also to be asking the minister to be a bit more vigilant about those who already have to enforce the law?

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

Mr. Speaker, my colleague is absolutely right. Vigilance, in keeping with principles of justice and equity, must be balanced.

I am well aware of the situation my colleague has referred to with respect to controlled security areas in ports. There are discussions on this going on at the present time among the unions. It is not easy to authorize a security standard. We will have to see the preliminary versions tabled by the government in order to know what kind of investigation it subjected current port employees to. If it were a little less right-wing, this matter would have been settled a long time ago, and an agreement would have been reached. That is, however, not the case as yet.

[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.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I thank the member for informing the House about some of the committee considerations.

The points with regard to the charter and privacy issues are very relevant and I hope to make a few comments on those later this day.

My concern, which I raised earlier, and perhaps the member could give his perspective on it, is with the new clause 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.

It is a little concerning to me when a regulation incorporates by reference a document that can be changed from time to time. It would make it onerous for any legislator, never mind the public at large, to properly understand what the law says. For example, often the Income Tax Act is incorporated in legislation directly rather than by regulation simply because it is a document that provides substantive guidelines. However, to have matters incorporated by reference in a regulation, which is promulgated by cabinet and never seen by this place, because we do not see the regulations until after the bill has already passed, it leaves, in my view, a grey area in which the intent of the legislation may be stretched or even violated by a matter in a regulation that incorporates some other document, whatever it might be, by reference. It makes the legislation more cumbersome in my view.

I am wondering if the member could share with us whether the committee had some concerns about this and whether he is aware of why matters, which are--

[The Deputy Speaker, Andrew Scheer]

The hon. member for Vancouver Kingsway.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, that is an astute observation. Indeed, there was concern raised by the committee about incorporation by reference and we questioned that.

Incorporation by reference is a legal drafting tool. This tool allows for a regulation to include material contained in another document, without the necessity of reproducing that document word for word within the text of the regulation itself. A specific example, when we questioned the need for that, came up in the customs context.

Under section 13.2 of the reporting of imported goods regulations, the owner or person in charge of a vessel must send certain information to the CBSA by electronic means and it specifies that the information must be sent in accordance with the technical requirements, specifications and procedures for electronic data interchange sent out in the electronic commerce client requirements document. That document is internally produced by CBSA and it provides for technical requirements for electronic data exchange with the CBSA. It is published in both official languages and it is amended from time to time. That is an example where we do not want to have to reproduce that entire document in the text of the legislation.

That was the example used as to why we would want to incorporate by reference and to have that regulatory power in the bill.

We were assured that material which would be incorporated by reference would be reviewed by the Department of Justice in a manner similar to a draft regulation. It would be carefully reviewed for adherence to the law, generally, and, particularly, with the Charter of Rights and Freedoms.

I believe my friend is quite correct in saying that we must be vigilant to ensure and watch how that power is exercised. If it is exercised inappropriately or irresponsibly, we may have to revisit this and remove that power.

[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 want to take this opportunity to thank the hon. member for Elmwood—Transcona for the wonderful work he does on behalf of his constituents, in particular, he is always concerned about the rights of individuals and consumers in our country.

In short, it appears the bill would not change the powers of CBSA officers to question and search people through these amendments. Their powers would remain exactly the same. The only change would be at what point they would exercise those powers.

Again, at present, anybody exiting a customs controlled area is subject to questioned and searched. All this would do is allow the officers to apply that power within the customs controlled area, which would be a more intelligent and targeted use of that power.

With respect to the very intelligent question about whether this would increase the ability to interdict substances or goods, that remains to be seen. However, it is our hope that these powers will be exercised in a manner that will result in more safety and in the interdiction of goods and people that ought not to be entering our country.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, could the member advise the House what the actual definition of a customs-controlled area is in the Customs Act right now?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I do not know what the current definition is. I do know the current act, which incorporates and uses the term customs-controlled areas, does not have a definition. This is an area of concern.

As I mentioned, it is one of the concerns raised by the committee because the definition of that designation is left to the discretion of the minister. It behooves all of us a parliamentarians to keep a close eye on how that designation is used. If it appears it is being expanded in a manner that is inappropriate or irresponsible, which is always a possibility with the government, then we have a parliamentary duty to rein that in and make changes to the legislation if that proves necessary.

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

Mr. Speaker, I have a follow-up question for the hon. member. Clause 10 of the bill would allow an officer to search any person who would be in or would be leaving a customs-controlled area if the officer suspected, on reasonable grounds, that the person had secreted on or about his or her person anything in respect to which the Customs Act or the regulations would be or might be contravened, or anything that would provide evidence of a contravention of any federal law prohibiting, regulating or controlling importation or exportation.

How does this provision differ from existing provisions in the Customs Act? How will officers determine when a search within a customs-controlled area is warranted? Will the customs officers require additional training or resources to effectively implement this provision?