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

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

Madam Speaker, I listened with great interest to the member's comments. He has made similar comments in the past and I certainly agree with him that all too often legislatures pass bills for which regulations will be promulgated in the future, and we never get updates as to what the process is and how it is developing.

There was a bill passed three or four years ago in Parliament to establish all-in pricing for airline fares. After two years that provision was lost in space. We will probably never hear about it again and regulations will never be brought into force.

Clause 6 of this bill creates a new section under the Customs Act to allow the governor in council to make regulations regarding the advanced information that is required for the importation of goods, information about the persons and goods on board the conveyance.

I would like to ask the member a question. Does he think there are any planned consultations for the development of these regulations? Clearly, that is a question that should be asked by the committee. What is the process going to be, who is going to be consulted, and when are they going to be consulted?

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, consultation on a regulation should not actually be necessary because it provides clarification. There should be consultation on clauses of the bill, the act itself.

The member raised a question. This is where the scrutiny of regulations committee comes in. From time to time there have been additional clauses put in bills that basically say that any regulations made pursuant to legislation shall be reviewed by the appropriate committee of both Houses to ensure that the meaning, intent, scope, et cetera, is enabled by and is the intent of the legislation.

Committees should understand that they have the extraordinary authority, right and responsibility, where necessary, to make amendments at the committee stage. Where there is some concern about the regulation-making process and where there are potentially some very serious consequences, the committee should have the opportunity to review them, maybe not to reject or accept them but at least to examine them, and make comment to the minister before the regulations are gazetted.

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

Madam Speaker, I would like to ask my hon. colleague from Mississauga South a question. He has become a renowned expert on parliamentary procedure in this place and has picked up on a very important issue in this particular bill, and that is the protection of the rights of individuals as per some of the language that is being used, at least in my experience, and I agree with him, for the very first time in many a year.

I note that in his presentation he talked about protection of the rights of individuals as we try to build in greater efficiencies in the way that we handle our border crossings and the movement of people and goods back and forth. I am wondering if he could take a moment to comment on just what it means, at least from the perspective of parliamentarians, when the government says that there will effectively be no restrictions on the kinds of things that a border official can demand of someone crossing the border.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I am the chair of the Access to Information, Privacy and Ethics Standing Committee of the House. We have been doing a fair bit of work. We are in the middle of a project on the Privacy Act. There is another act. It is called the Personal Information Protection and Electronic Documents Act which also covers a lot of these things.

However, with regard to privacy issues, the member is absolutely right. We have a creeping going on in terms of the exposure of information that is being disclosed. We had a proviso where the U.S. authorities wanted to have airline manifests, even for aircraft that was just flying over U.S. airspace. Now we have other legislation which is allowing CSIS and even the RCMP, for security reasons, for personal information to be shared with foreign jurisdictions. There are other cases where concerns are raised even with respect to companies like Google whereby Google view software is taking pictures of people. Those are already subject to concern and they require that faces be blocked out, that original information be destroyed, and that the retention be limited.

Therefore, the members is quite right. This seems to be much broader than some of those things. It raises some concerns and I think the House should be very concerned and vigilant about the implications not only to the charter but also to the privacy rights of Canadians.

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

Madam Speaker, I want to follow up on that exchange that the member just had.

I know that his interest in privacy runs very deep, partly from his work as the chair of the standing committee. I am wondering if this legislation is in place whether a requirement for a privacy impact assessment might be part of this kind of legislation. It is an example of where that should be a legislated part of legislation, such as the bill that we are discussing today.

I also want to ask the member if he could respond. For many of my constituents, the key border issue, not to diminish the importance of cross-border trade, is the flow of illegal weapons across the border.

It seems to me that even though that is the view of many people as the most serious border issue between Canada and the United States, this legislation does not seem to add anything to our ability to stop that flow of illegal weapons across the border.

I wonder if the member could comment on whether he sees that as a serious deficiency of this opportunity to make changes to the customs legislation.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, with regard to the privacy impact assessments, as the member who is also a member of our committee well knows, this was discretionary at the time. I think it is becoming more and more clear that they should be a prerequisite to have been conducted prior to legislation being considered or drafted. There are pitfalls. The member will know that we have a case where it has been two years of waiting for a privacy impact assessment which seems that there is not a buy-in yet.

With regard to illegal weapons, the member is absolutely right. It is a very important area. I think the two encouraging things in the bill are: first, that the authority to search and to question and so on which is now restricted to Canada Border Services Agency personnel will be broadened to I guess the whole customs area. That is very important. Second, and I have raised it before, I am hoping that the definition of what is a customs controlled area will be interpreted based on the intent of the legislation to include a broader range of areas, other than just simply the entry point. That would certainly give more opportunity for the authorities involved to be able to be vigilant for potential areas where illegal weapons may be coming in.

[Andrew Kania, Liberal, Brampton West, ON]

Madam Speaker, in terms of this bill, as a general concept, I support it.

We did review this before the public safety committee, of which I am a member. Generally speaking, there were very few questions but there are some problems, two in particular I wish to highlight during the latter part of my speech.

Initially, I simply wish to comment upon what is good about this bill. First, it must be remembered that this particular statute, the Customs Act, its simple purpose is to administer and enforce the collection of duties and taxes. This is not actually a taxing statute. This is also not comprehensive legislation in terms of border security and the arming of guards. We have other statutes for that.

What must remembered any time we are passing amendments to one of these statutes in this area is that we live in a different time. When this was initially passed many years ago, we did not have the same number of concerns with the border and we did not have 9/11. Various things have changed. At this point in time, we have to find a reasonable balance between safety and the enforcement of these various charges.

No act is perfect, but generally speaking I think this is a relatively good act, and I would be surprised if all parties did not support this in the House. This already passed the Senate on April 23, 2009. The Senate has done a good job in terms of considering this act.

There are two main changes to the Customs Act in terms of what this bill does. First, is the expansion of activity within a customs controlled area. My esteemed colleague already commented on that. Essentially, we are creating a customs controlled area that would be under the supervision of these officials without having restrictions upon their ability to actually enforce the legislation and to make sure that things are not actually happening in an illegal manner.

For example, if there is a flight that has come into Canada, there may be a parcel that was international in origin. Smuggling does take place. We have gun problems, narcotic problems and things do happen. If the package is taken from an international cargo area and somebody trying to do something wrong tries to bring it into the domestic area, it might become one of those packages that simply does not get searched.

One of the things this act is trying to accomplish is to allow officers to search people in these customs controlled areas, even if they are not passengers, and if there are reasonable and probable grounds. For example, somebody who works there obviously cannot be checked in and out every time, that is just not practical. There is too much going on. I think the stats at Pearson in Toronto, as one example, indicate that a plane is either touching down or lifting off every minute. In those circumstances, the laws have to be practical and efficient as well.

Going back to my example, in the situation where a parcel is now in the domestic area, which ordinarily would not be searched, it would now be in one of these customs controlled areas. Whatever the parcels may be, or is going back and forth, or people are going in and out of these areas, there is now the ability to search these people and search these parcels. Essentially, it is an expansion of what the legislation previously was. I think that is a good thing to do in these times with these various problems that we are having.

The second main purpose of this amendment is to advance passenger information in terms of providing information to the Canadian authorities before people come into Canada. That makes sense. There is nothing wrong with letting us know in advance who is coming and what information there may be about those people. We will have a better opportunity to guard against what should not be occurring. I think that is another supportable feature of this legislation.

Another issue, in terms of clause 2, is that the minister will now have the power to directly authorize access to customs controlled areas. Before this, it could only be done by regulation. That is not very practical. If a minister now wants to authorize, for example, a member of Parliament to come and examine the site, he or she could do that. We do not have to wait for a regulation. I think that is a very practical measure which makes sense.

There was also an exemption previously in terms of persons boarding a flight to a destination outside of Canada and leaving a customs controlled area. They did not have to present or identify themselves to an officer. They did not have to report any goods that were obtained in the area and they did not have to answer any questions from an officer.

To be safe, in this day and age I believe it is reasonable to include a requirement that officers can in fact question people, examine them, ask for identification and see what goods they have. In essence that is part of an overall deterrence package. Once again, with so much traffic coming in and out of Canada, if people know these powers are there and they are now subject to inspection, perhaps that in itself would modify a good portion of conduct that should not be taking place.

It is important we recognize that something in the range of $1.6 billion of daily trade goes back and forth between Canada and the United States. These amendments obviously do not apply just to the United States, but since 80% of Canada's trade is with the United States, it is important that we have these various types of reasonable requirements. We especially have an obligation to all our trading partners and all our friends around the world to make sure we are doing what is necessary to ensure that laws here are being enforced.

Other improvements, specifically clauses 10 and 11, deal with inspections on the reasonable and probable grounds that I was mentioning. These clauses are very substantial, good changes that will allow us to fight smuggling specifically. I very strongly support those.

In terms of support from stakeholder groups, we have the GTAA and the Canadian Airports Council. A number of persons have supported this. I am not speaking for all parties formally, but I believe this will be supported by all parties when it comes to a vote.

Now, there are problems. There are two problems in particular that I do want to address. Once again, bills are not perfect, and perhaps they can be changed, but I do want to identify the problems. The first one has already been pointed out by my colleague, which specifically is proposed subsection 164.1(1), and I am going to read it. It is with respect to regulations, and it indicates:

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.

In terms of law, one of the first principles is that there is no certainty to this. When we consider, once again, “on a particular date or as amended from time to time”, I would strongly prefer that this provision be tightened up so it specifically notes how regulations would be made and that there is not this incorporation by reference, especially with the phrase “as amended from time to time”. That does not provide certainty under the law, and I would like to see that changed.

I should mention that I do have the honour of being the joint chair of the scrutiny of regulations committee and this is what we deal with all the time. When these various regulations come to us and there is a problem, we seek to change or amend them. If something cannot be done, there is the power of disallowance, which is very rare. But it is better to try to avoid these problems now rather than having to deal with them in the future, so I would like to see that changed if possible.

The second potential problem deals with solicitor-client privilege. Specifically, it is not clear to me from the wording in this legislation that it is protected. Solicitor-client privilege is one of those legal rights that is accepted essentially in all common law countries, and it is something that needs to be enumerated specifically here. An example would be this. We are providing these powers in customs controlled areas to inspect essentially anybody at any time. The bill refers to reasonable or probable grounds. There are various passengers coming in and out to these various customs controlled areas.

I would like to see something that specifically says if it is a lawyer with solicitor-client documentation that it cannot in any way be inspected, period. I myself have had this situation, not in a negative manner, bringing legal documents back and forth for cases I had in the United States. It never has been a problem. However, I want to make sure that it never becomes a problem for anybody. I think it would be better if this was enumerated so we know that right would not be abrogated.

Overall, I believe that the statute is worthy of becoming law. There will always be problems. It would be my preference to see these problems that I noted solved. However, that being the case, I think that overall this is good work by the Senate, and I think we should support it.

[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?

[Andrew Kania, Liberal, Brampton West, ON]

Madam Speaker, I do not think it would do much. It would provide the additional power and abilities to enforce in these customs controlled designated areas. However, this is not a statute that deals specifically with the border. There are other methods to do that, and I fully agree with my colleague that we do need to be focusing on this.

There are various problems that still remain, which the Conservative government has not dealt with. One example is the arming of border guards. I understand there are no studies to actually show this is necessary, nothing to show that it is cost-efficient. In fact the studies I did see, or at least that were referred to, indicate the RCMP should be doing this rather than arming border guards, some of whom will not be able to do it. In those cases we would have to pension them off or have buyout packages for them. We do not know what the costs would be. This could be some large monstrosity.

In terms of this particular statute, this does not really focus on it. However, I think the Conservatives should be focusing on the other problems that do exist and changing their policies in terms of some of the problems such as arming border guards.

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

Madam Speaker, one of the issues I have followed in the past is the whole issue of racial and religious profiling applied to people, often at border points, in customs areas. We have had many Canadians who have felt they have been targeted solely on the basis of their belonging to a racial or religious minority. This legislation does not talk about how people are to be treated specifically in these customs controlled areas.

I wonder if the member would agree with me that the practice of racial and religious profiling should be banned--I actually have a private member's bill to that effect--and that it would be sensible to include that kind of policy in legislation like this bill before us to look at exactly what happens in customs controlled areas at the border points, at our airports, at our ports, to ensure this very odious practice of targeting specific people because of belonging to a religious or racial minority is ended. Does he think this is something that might have been included in this bill if we were doing a very thorough job of updating our customs legislation?

[Andrew Kania, Liberal, Brampton West, ON]

Madam Speaker, I think that is an excellent point. Obviously we do oppose any such profiling, very strenuously. There are many examples where we have been advised that this has occurred. We have had Canadians coming back across the border in buses, from events, where they have been stopped and held up for hours. This is a serious problem.

What I might suggest for this legislation, and what I think should happen at a minimum--I mean if the legislation is amended, that is wonderful, but if it isn't, at a minimum to stop this practice there should be some form of specific, approved training standards in the regulations so the people who are actually applying these rules would be told in advance what they are not allowed to do. I think it is an excellent point.

[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?

[Andrew Kania, Liberal, Brampton West, ON]

Madam Speaker, there have been delays going back and forth, and in particular between Canada and the United States. Once again, we have approximately $1.6 billion of trade per day. Eighty per cent of our trade is with the U.S. It is a very serious problem.

Systems are in place that seek to move goods and people back and forth faster. There is the NEXUS system and the FAST system. The FAST system deals specifically with the movement of commercial goods back and forth across the border.

The problem is one of political philosophy. We have to understand that right now the Americans, if anything, are becoming more restrictive not less restrictive. We need to examine all potential pieces of legislation to make sure we have fair and reasonable requirements, but that also provide some form of reasonable standards that the Americans will accept, within the bounds of what we believe to be right of course, to make sure our trade back and forth continues to flow on an adequate basis.

[The Acting Speaker, Denise Savoie]

Questions or comments? Is the House ready for the question?

[Some hon. members]

Question.