Bill C-21 (Historical)

An Act to amend the Customs Act

This enactment amends the Customs Act to authorize the Canada Border Services Agency to collect, from prescribed persons and prescribed sources, personal information on all persons who are leaving or have left Canada. It also amends the Act to authorize an officer, as defined in that Act, to require that goods that are to be exported from Canada are to be reported despite any exemption under that Act. In addition, it amends the Act to provide officers with the power to examine any goods that are to be exported. Finally, it amends the Act to authorize the disclosure of information collected under the Customs Act to an official of the Department of Employment and Social Development for the purposes of administering or enforcing the Old Age Security Act.

[Esha Bhandari]

I want to clarify that as a representative of the ACLU, I'm not taking a position on Bill C-21 itself. I hope my testimony is helpful to the committee, but I don't feel qualified to opine on either the bill as a whole or particular amendments.

The question goes to the risk of racial profiling or other types of profiling in the enforcement of the bill. My understanding is that this involves information sharing as well, meaning that information collected by Customs and Border Protection on the U.S. side would be shared with the Canadian government and vice versa. It is relevant, again, to consider whether, if information is being collected on the U.S. side of the border, including responses to questions from travellers who are exiting, there is a risk of racial profiling.

[Solomon Wong, Executive Board Member, Canadian/American Border Trade Alliance]

Thank you very much to the chair for the opportunity to present remarks on Bill C-21, which we believe is a fundamental cornerstone to the automated and more efficient way borders are managed for Canada.

As you mentioned, I'm an executive board member of the Canadian/American Border Trade Alliance. It's a group that has celebrated its 25th anniversary this year as a binational grassroots organization representing a number of public and private sector organizations. They're involved in Canadian and American trade, border crossing, transportation, tourism, airports, and bridge operators, among others.

As a voluntary board member for Can/Am BTA, I should also add that I have professionally worked for 20 years in all forms of border management between the U.S. and Canada, with my firm InterVISTAS consulting, specializing in different kinds of movements. Some members of the committee have seen my past work as the independent reviewer of the current pre-clearance act that was tabled in the House of Commons. I've also looked at the root causes of border delay, and that pertains to both goods movement and people movements.

The Canadian/American Border Trade Alliance is in full support of the provisions of Bill C-21, in terms of being able to have exit information that is recorded when individuals leave the country. As many have already testified before this committee, the intent of being able to expand the current capabilities that have been deployed since 2013 to provide information on Canadian citizens to support a range of different objectives on a restricted basis is that this biographic information on Canadians is going to be important to be able to close the loop in terms of the set of entries and exits from Canada. As we have seen in reports from the operating agencies, some 20 million records have already been looked at so far.

In granting new powers to government to be able to perform these kinds of activities, we always look at this in three ways. First, will this capability provide the ability for governments to better manage our borders, particularly the perimeter around the U.S. and Canada? Second, are there opportunities for efficiencies to be created to allow folks working for CBSA and IRCC to do more with what they currently have as resources? Third, from the Can/Am Border Trade Alliance perspective, are there opportunities to facilitate trade and travel?

Growth is continuing, particularly for international visitors and air travel, over 5% per annum over the next 20 years, as forecasted. In terms of being able to provide the capability for Canada to take the recommendations of groups such as ICAO, the International Civil Aviation Organization, in terms of recommended practices, certainly these are opportunities that are available for the Government of Canada to pursue facilitated efficiencies.

Imagine the age-old question that you face when you cross the border as to how long you have been away, and the amount of work to manually swipe passports and look at that particular question, and converting that to more productive types of questions, to be able to look at the kinds of people going across the borders.

As mentioned by other witnesses to the committee, Canada is not the first country to look at this. There are lessons to be learned from other countries that have sought to implement exit immigration data. I'll cite a couple of them.

In addition to the United States, recently the United Kingdom implemented the border systems program, which took effect in mid-2015. That represented a 20-year shift in the U.K. in terms of the way exit information is looked at. Prior to 1994, that was done through an exit booth when leaving the U.K. On departure, you would actually see an immigration person. As in a number of countries around the world, that was the mechanism. However, over the period of time of automating that capability and into mid-2015, the U.K. Home Office worked very closely with different port operators and airlines to be able to implement this. It very well might be a model to look at the provisions of implementing exit and entry from the Beyond the Border action plan. The issues were fairly limited.

Contrasting this was the move this past summer in the EU in putting forward a set of regulations in response to a number of attacks, in Paris and Brussels namely, and being able to have states in the Schengen area required to provide tracking of entry and exit information. In this case, the deployment was horrible by all accounts. Between May and June 2017, the number of delays was 97% greater than in 2016. In a number of countries, France and Spain namely, the delays in border formalities in August 2017 could reach up to two hours.

That is not the model to pursue because the ability to systematically and cohesively deploy this, as we have seen since the 2013 decision to provide a test of exit data, is certainly something that we've seen here in the experience to date. Granted, scaling this upwards is a different challenge, and certainly we're confident the agencies looking at this will have the ability to keep an eye on the ball to make sure delays aren't in place.

Interestingly, the world leader in this area, Australia, pioneered the approaches in the 1990s for advanced passenger processing. One of the first countries to fully automate the data in looking at arrivals, in April 2016, Australia moved ahead with what they called outward advanced passenger processing. This itself provided a similar capability to be able to have exit data put in place. Based on a long history of working collaboratively with the airlines toward implementation, that went fairly smoothly. I will also add that in my earlier remarks about finding facilitation benefits, Australia has a broader vision into the future. Its 2015 seamless traveller initiative has as its viewpoint being able to facilitate over 90% of travellers without stopping at a booth.

At Can/Am BTA we look at these examples and we applaud this. Where do we go from here? We would suggest three things to this committee to be looked at.

Number one is making sure that the border technologies being deployed are compatible with the powers that are provided in C-21. Although C-21 is limited to documents for outbound international travel or data coming in from CBP, we see a number of countries like Australia and the United States moving very rapidly toward biometric entry systems in addition to exit. While that's not the scope of C-21, it is certainly a progression and future that needs to be evaluated.

Number two, the passports that Canada uses do not have that ability for quick reading. Namely, the advantages of secure vicinity RFID is a technology available at a number of border crossings and that needs to be expanded greatly into the document itself.

Number three, and I can expand on this during questions from the committee, while ensuring that privacy is protected in terms of data, there are opportunities with the new Canadian centre on transportation data to be able to look at what this data source could help with on an anonymized basis. I reside in Vancouver, where there is a growing Vancouver-Victoria-Seattle tourism triangle. The ability to understand exits and departures much like cruise ships from Halifax and leaving by air for the United States, that source of information is currently a bit grey. There are opportunities other than this one that could provide advantages to both industry and government to understand those patterns of travel.

I look forward to questions from the committee.

[Wesley Wark]

Thank you, Ms. Damoff.

I am not completely aware of what Statistics Canada does with this information or how regularly it reports it. I still think there would be value in putting a requirement into Bill C-21 legislation for an annual public report, without specifying exactly what should go into that. I think a statistical component would be important, partly just to demonstrate that CBSA is completely confident of its ability to acquire these statistics and to demonstrate them themselves. That would just be a basic test that they would be under.

[Wesley Wark]

I think everybody is working according to the same best practices in terms of secure data storage and surrounding it with privacy protections. That would certainly be true for all of our Five Eyes partners, but really the challenge grows exponentially with the more information you have that you're trying to secure.

To come back to Bill C-21 information, particularly about Canadian citizens, it is basic biographical information, so to that extent, it's mostly publicly available information. It's probably important not to exaggerate our concerns about locking it down in specific terms, but there should be more concern with the principle, which is that any database needs to be protected.

There is passport information and, with regard to air exit, some more specific information that could be of value. There's the general principle that anything that comes into the federal government needs to be treated as data to be secured, and the question of whether CBSA can do that effectively given the vast volumes. The specific harms that might flow from hacking into this database are hard to measure, generally because those kinds of hacking attempts aren't specifically targeted at, say, this pool of data, but are used to gain entry into other pools of data. That's really how the most sophisticated hacking works.

[Wesley Wark]

I'll do my best on this. Again, I don't feel I have any kind of perfect or solid answer for the committee on this, but I think the approach is to stream it according to the different objectives of Bill C-21 in terms of the concerns that it's meant to deal with, and to keep in mind as well that Bill C-21 information, entry-exit information, is going to be only a small piece to a larger informational puzzle that you might need to apply to particular cases. It's never going to be stand-alone information.

In that sense, although I understand your concern that once you delete data from a database it's gone forever, I think there are a couple of things to be said about that. One is that there's probably another source from which that data could ultimately be acquired if you really needed it after a period of time that was covered by the retention schedule.

Second, and importantly, we have to understand that the more that an agency like CBSA is flooded with information, just as a general proposition, the less able it's going to be to actually winnow that information and find what it really needs to find in it. My concern is with the way we can—

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

Professor, I was very pleased to hear your comments on the analytical capacity or the lack thereof and the need for it in government. I think my colleague across the way would agree with me, based on his background as well as mine, that it's absolutely critical. It's emerging that the most critical component in the public safety, law enforcement, and anti-terrorism environment in which we live in our world is the analytical capacity to review and track individuals. I thank you for that. I think it's something that CBSA will work with government to increase.

You indicated that part of your concern was with the appropriate retention schedules. That's complex. There need to be some guidelines with regard to those, along with some flexibilities. I guess I'm left to wonder about this, given my background. When data is redacted, is gone, or we lose it to a retention schedule, it's amazing how many times we require that data and we no longer have it. I'm thinking of the recent example from Edmonton. If that data had been lost some way, how would we know and how could we track some of the concerns we have regarding public safety and terrorism, which is what Bill C-21 is supposed to do?

I know some balance needs to be struck and I know there are some groups that would have us be more concerned about retention and say we should destroy everything within years. You indicated that there are some streams, and that, depending on the purpose, we need to have different retention schedules. Can you explain that so it's a bit clearer and so we get it right?

[Wesley Wark]

In a way, it's a challenge in Canadian-American relations, rather than a challenge for strictly Canadian border enforcement provisions. I think this is particularly true with regard to the legalization of marijuana. How that would be treated across the border is an issue that remains to be seen.

Again, I don't see in Bill C-21 measures that are going to make the export of goods or the movement of people more difficult. It's a question of how exit is going to be handled by the United States, particularly across the land border.

Obviously, we need to work very closely with the United States and try to convince them of the Canadian interests in this regard, but ultimately that will depend on their approaches.

[Wesley Wark]

Sure. Thank you, Ms. Leitch.

On the transparency part first, I think that's the easiest one in terms of building a requirement in the legislation that there should be a public annual reporting to Parliament on the performance of Bill C-21. It would be one of the occasions on which CBSA would come before Parliament to really explain how they're performing. I think that would be important.

The retention schedule is, I think, a very complex issue. I don't have an easy answer for you. I have gotten as far as thinking, I must confess, that it would be important to have in the legislation guidelines on retention, with some degree of flexibility, geared to the specific different objectives as outlined in the backgrounder.

If I were looking for a timeline around this, I would say one to two years, maximum, and differentiated among the different objectives—but not 15, not 30, not 75; not an eternity.

[Wesley Wark]

Okay.

It's very difficult, because generally, up until very recently, we haven't seen such timelines. Governments of various stripes have been very reluctant to do this. They prefer the flexibility of having non-public retention schedules. It's often treated as a national security matter and a matter of secrecy to do so. I don't think that's necessary in this case.

The challenge here, and I think the reason that the government would prefer to have this in regulation, is that there are so many different objectives to the Bill C-21 initiative that might require different kinds of timelines around data retention. Despite that, I would still say that I think you could outline the different objectives and say the appropriate retention schedules for each of these different objectives, with some caveat around flexibility, should be x. The basic idea, as that concept might be worked through, would not be to just let this information sit forever, which is, I think, the default.

[Wesley Wark]

Yes. It would be a crosscutting provision. It's really a timing matter, in a way. I think legitimately it should be in Bill C-59 and then referenced back to Bill C-21 in terms of coming-into-force provisions. Probably you folks around the table are more expert than I would be on how to manage that process. It should be in legislation somewhere. There could be a reference in Bill C-21 to that, cross-referencing another piece of legislation, I would think.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

When you say “in the legislation”, are you talking about Bill C-21? I'm just trying to clarify it. Right now we're doing a review of this statute, and I want to make sure we're not....

[Wesley Wark]

It's a good question. There is some publicly available information, particularly around the first phase of the rollout of entry-exit, where they were wanting to test how well they could digest relatively limited flows of information from the United States. There was statistical data provided, percentages of data that could be resolved relatively easily. Those looked good. Again, I think it would take someone more expert than I in what those statistics really meant to read them. I think the key thing to understand is that in addition to that sort of result in the first phase test and the privacy impact assessment in stage two, which has been released, we're just heading into new territory in terms of additional information and, in a way, more sensitive information on Canadian citizens that will be added in with Bill C-21.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I only ask the question because, with regard to Bill C-21, a lot of the reasons the information may be collected are arguably not for national security purposes when you hear the stated objectives of the bill. In that sense, would it be fair to conclude that these activities would not necessarily be subject to the review by these different bodies?

[Wesley Wark]

The short answer to that is absolutely. It seems to me it would fit nicely under the current government's transparency commitments. As you know, in Bill C-59 there are a variety of statutory requirements for agencies to provide public reports, and in some cases unprecedented public reports to Parliament and the public, for example from CSE. I think this would be very appropriate to build into Bill C-21.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

In 2016, you were quoted in the National Post as noting that we may not be treated as an ally when dealing with the Americans and border control. Do you still hold that same fear with Bill C-21?