Citizenship and Immigration Committee on Nov. 19th, 2012

[Les Linklater]

We are constrained in what we can share and with whom by the Privacy Act.

[Jinny Sims, NDP, Newton—North Delta, BC]

Are the parliamentarians going to have a say? Right now, when it's just limited to “we're going to collect this data, it's for us”, we have one point of view. When we know then it's going to be marketed on the world stage, it becomes a whole new issue. I suppose I need to know whether it will be a parliamentary decision or another one of these things where the ministers will decide.

[Les Linklater]

I think if there is going to be any review of the regime, the cabinet process would need to be engaged, definitely. If there are follow-on implications that Parliament is justified in reviewing, then absolutely.

[Jinny Sims, NDP, Newton—North Delta, BC]

These huge alarm bells are ringing even louder about the amount of power that rests in regulations and ministers. Parliamentary oversight, then, just isn't there. I know I heard my colleague across the way say we're going to look at three paragraphs for six hours. I'm talking about all the things that we don't know yet, and yet we're going to be voting on this—all the things that still have to be developed and the future that is going to change things quite a bit.

I know you've had very lengthy discussions with the Privacy Commissioner, and I really appreciated hearing that. Has the Privacy Commissioner actually looked at this and done an assessment?

[Les Linklater]

As Ms. Welbourne said, the initial engagement has really been about the concept of the eTA, helping the commissioner and her staff understand what we have in mind, in terms of comparable systems in the U.S. and Australia. Beyond that, it's to ensure that her office is engaged every step of the way as we develop the privacy impact assessment, the PIA, and the regulations that govern how this will function.

[Jinny Sims, NDP, Newton—North Delta, BC]

Considering the pace at which things move, I have some concerns that once again we're going to be asked to vote on something where we don't have the information from the Privacy Commissioner. As I'm talking, I'm beginning to think, how could she when you haven't even developed the questions yet? Those are still being worked on.

[Les Linklater]

Right. Part of this bill relates to the enabling statutory authorities to set up the regime. To actually have the regime come into force will require the regulations, based on the PIA, based on the collaboration with the Office of the Privacy Commissioner.

[Jinny Sims, NDP, Newton—North Delta, BC]

Once again it goes to the point I was making about the lack of parliamentary engagement and oversight. We're going to be giving you this, according to this, and then Parliament will vote on a huge, gargantuan, so-called budget bill. We'll be making decisions without having a report from the Privacy Commissioner, without knowing what the questions are, and with a big question mark as to who is going to have access to this information at some time in the future. It's not your issue, but I just needed to get that out there, so I really appreciate that.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I want to go back to the user fee. Mr. Linklater, you say it will be a nominal fee. Does the minister have a sense of how much that nominal fee is going to be?

[Les Linklater]

We are working with Treasury Board around the costs of this initiative. Those have not been nailed down and finally determined.

As I said, once we've been able to work with Treasury Board around the impacts and the scope of this—coming back to your point about resources available for interviews to be held in the field and that sort of thing—then the fee would be established through regulations.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

When a department brings forward a program, is there not any sort of expectation that they would have a sense of what the actual cost would be?

[Les Linklater]

Absolutely. As we work with Treasury Board around the scope of the program, do we have the right number of additional officers lined up in the field to deal with potential refusals, that sort of thing? All of that has a bearing on how much we can charge for the fee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes. If you say that this is a cost recovery program, meaning that the taxpayers are not going to be footing the bill—the bill's going to be paid for by those applicants—we should have a sense of how much this is going to cost and what the user fee would be. You should be able to say that it's going to be over $10, under $10, or close to $20, as opposed to just some fee yet to be determined. Is that not a fair assessment?

[Les Linklater]

It is a fair assessment, but as I said, having not yet had the final conversation and decision from the Treasury Board around the scope of the program....

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Right.

[Les Linklater]

But I would say that the fee will be very competitive vis-à-vis the U.S. and Australia.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

It would seem to me that because this will be going before the finance committee—I hope to be at the finance committee—the Department of Finance would want to know what sort of a fee there will be.

It seems to me that the Minister of Immigration is choosing to hide that fee from this committee. That is what I would be suggesting.

[The Chair, Conservative, David Tilson]

Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

On a point of order, Chair, I don't mind questions specific to the topic, germane to what we're trying to understand here, but accusing the minister—in a question—of hiding something is very difficult for Mr. Linklater or any of our witnesses to respond to.

I would suggest that it may be a political comment that Mr. Lamoureux would like to make, but it has no place at the committee table—here, anyway.

[The Chair, Conservative, David Tilson]

I agree.

And our time has expired.

Mr. Linklater, Madame Bourry, and Ms. Welbourne, thank you very much for coming and providing us with background to these sections in the legislation.

Thank you very much.

We will suspend.

[The Chair, Conservative, David Tilson]

We will reconvene the meeting.

We have, by video conference from Vancouver, from the Centre for Immigration Policy Reform, Mr. Martin Collacott; and as an individual, Mr. James Bissett, who is on the board of directors for the Centre for Immigration Policy Reform.

Both of these individuals have appeared so many times before that I'm beginning to know them better than I do members of the committee.

We welcome you back to the committee to give your views on these sections of Bill C-45.

We also have, from NextgenID Canada Inc., Robert L. Bell, who is the senior vice-president of corporate and business development.

You too have appeared here before, Mr. Bell. I welcome you on behalf of the committee.

Each of the three of you will have up to eight minutes.

Mr. Bell, you can go first.

[Robert Bell, Senior Vice-President, Corporate and Business Development, NextgenID Canada Inc.]

Mr. Chairman, honourable committee members, I'm pleased to appear before you on the subject of the proposed electronic travel authorization.

As someone who has been active in the field of securing and modernizing borders for close to a decade, I'm pleased to offer my observations and the advice of my colleagues at NextgenID on the merits of the eTA.

Essentially, the eTA provides a means to know who is coming to our country as soon as possible, and if a traveller is not admissible, to deal with this before the person gets on the plane. The eTA, when integrated with the processes of the travel agents, airlines, airports, and government, should yield security benefits to all stakeholders, including travellers.

There are, however, costs to set up and operate the eTA process, and these will fall largely to Canada and the service providers, including airlines and travel agents.

We believe the eTA is an important step in securing our border.

I'll talk about the legislation. I suspect there are many lawyers here. I am not a lawyer. That said, I have read the proposed legislation and will provide a lay interpretation of it and its relationship to the border action plan.

Division 16 amends the Immigration and Refugee Protection Act to provide for an electronic travel authorization and to provide that the User Fees Act does not apply to a fee for provision of services in relation to an application for an electronic travel authorization. These amendments support the border action plan, which commits Canada to introducing an electronic travel authorization program to establish a common North American approach to screening travellers.

The eTA program will be similar to the United States' existing electronic system for travel authorization and will permit the Government of Canada to examine most visa-exempt foreign nationals at the earliest opportunity prior to their travel to Canada by air. Essentially, this is an electronic visa for most people travelling to Canada who are currently exempt from applying for a conventional visa. This division amends section 11 of the Immigration and Refugee Protection Act by creating a requirement for persons seeking entry to Canada from visa-exempt countries to complete advanced electronic screening prior to departure for Canada. This will necessarily involve enhancements in several security area sectors, including database integration technologies and database analytical software technologies. There was considerable discussion about that with the earlier speakers.

Near real-time response for most eTA applications will be essential for the success of the process. This initiative will be self-funded through user fees also authorized under the amendments to this division.

What are my comments on the legislation? The eTA will implement screening based on the name of a traveller. This is good; however, name checks do not detect the people who are travelling with false documents or assumed identifies. This is a known and continuing problem. However, there is a solution. A number of countries have successfully introduced biometric checks to address this problem. In the U.S. ESTA program all electronically authorized travellers carrying passports issued after 2006 are required to have e-passports. I would expect Canada to have the same requirement.

Each e-passport has a digital photo encoded on the chip in the passport, and this enables effective biometric identity confirmation. A live face image can be captured and compared with the image on the chip, thus making identity confirmation quick, easy, and accurate. This will catch the person travelling on a borrowed passport. The same live image can be compared against the face watch list to determine if the traveller is a person of interest. This will catch the “bad guy” travelling under an assumed identity.

Who are the bad guys? Again, a previous speaker talked of that. They are domestic and international security risks. They are domestic and international fugitives for serious offences. They are international criminals. They are inadmissible for human rights offences. They are criminal deportees and they are failed refugee claimants. Those are the major classes. These people are generally not caught by the current screening if they have good documents for their assumed names.

Inasmuch as the stated objective of the eTA is to detect and prevent entry of persons who are inadmissible to Canada, we recommend that this ETA screening be augmented by the deployment of face recognition biometric technology at points of departure for Canada and at ports of entry to Canada.

Again, there was some discussion earlier about two main models out there: the Australian and the U.S. systems. Australia's has been operational since 1996, and that of the U.S. since 2010. The U.S. ESTA and the Australian ETA are similar in many ways, but differ in the details, primarily, I expect, because of the larger number of visitors to the U.S. Both seem to work well.

Both countries do biometric identity checks at the border. The U.S. does watch-list checks based on fingerprint and face images. Australia compares the face image on the chip to the live captured image. Canada will need to implement biometric checks, as we cannot continue to depend on name searches only.

The U.S. ESTA issues a token: a document that you print on your home printer that reflects that you are a holder of an ESTA. We would question if this is necessary and would suggest that it opens a weakness in the system. The Australian system does not require a token and depends on the reliable electronic record. Canada should consider this alternative.

Earlier, there were discussions of fees. Both countries charge a fee for the ETA. The U.S. fee is $4 for processing the application and $10 for the issue of the ESTA. For Australia, the fee is $20.

These fees have caused some reaction from the EU. The European Parliament has criticized the United States for imposing an ESTA fee on foreign visitors, thus raising the possibility of levying a similar fee on American travellers to the EU. To my knowledge, that hasn't been done. Australia has entered into a no-fee reciprocal agreement with the EU and has recently introduced an e-visitor equivalent to the ETA, which applies to short-term, non-business travellers from EU countries.

We support the eTA initiative. We would not anticipate that the eTA process or the eTA costs would be a factor in a tourist's or a business person's decision to visit Canada. Hence, we would expect enhanced perimeter security with no measurable economic impact on Canada.

I'd be pleased to respond to any questions you might have.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Bell.

From Vancouver, Mr. Collacott, you have up to eight minutes, sir.

[Martin Collacott, Spokesperson, Centre for Immigration Policy Reform]

Thank you, Mr. Chairman.

The proposed electronic travel authorization makes sense, particularly if it provides screening for nationals of countries that are visa-exempt and who plan to travel to Canada. At the moment we don't have anything to cover them.

It helps to identify individuals who may pose a problem in terms of being allowed entry before they get on a Canada-bound plane, and it therefore saves both them and us a lot of money, time, and trouble.

It also speeds up the entry of persons who do not have a problem.

The system will not be perfect, since it's based on name recognition and leaves open the possibility that someone may gain entry by using a false identity. It will be more effective when biometric screening such as face recognition is available, and I think Mr. Bell just made that point.

One of the reasons for putting in place the electronic authorization, EA, system is that this is one of the commitments we made under the Beyond the Border action plan we agreed upon with the United States in December of last year. It will be part of more extensive arrangements with that country to facilitate the movement of people across our mutual border and identify those we need to keep out.

I would mention in this regard that the implementation of this agreement with the U.S. would bring with it substantial benefits to Canada.

A Fraser Institute paper released three months ago noted that that there had been a substantial decline in travel by Americans to Canada since the events of September 11, 2001, when the U.S. began thickening the border in terms of security measures. While some of the decline in travel by Americans might be attributed to the less favourable exchange rate of the American dollar as well as the economic crisis beginning in 2008, both of these developments started long after the decline in the number of U.S. travellers to Canada had begun.

The Fraser Institute paper estimated that roughly $7 billion per year in tourist-based receipts had been lost for the Canadian economy as a result of this decline in cross-border travel. Much of this might be regained if we implemented the screening arrangements provided for in the Beyond the Border action plan. The paper's authors also noted that the implementation of the action plan would result in savings to Canadian taxpayers of somewhere between $600 million and $1 billion annually, although they weren't able to identify how much of this amount would be due to the implementation of the eTA and related elements of the plan.

I would like to raise a couple of issues that have been mentioned in connection with the electronic authorization plan and other elements of the plan. One entails the exchange of information with the United States and whether such measures will be consistent with Canada's privacy requirements. In this regard, the federal Privacy Commissioner will certainly be consulted when the various measures are being considered

In the past, there has been some fairly robust debate in Canada concerning how much information about individuals should be made public or shared with the United States. In 2003, when the government of the day revealed that it was looking for 59 suspected war criminals who were wanted on Canada-wide warrants, the then Minister of Immigration told Ontario law enforcement officials that it could not provide the names and photographs of the individuals because to do so would violate their privacy rights.

This sort of situation occurred again in 2005 when the government was looking for 115 missing war criminals and the Canada Border Services Agency refused to reveal their names out of concern for their privacy rights. It did not, however, recur in July 2011 when the federal government released the names of 30 suspected war criminals it said had entered the country illegally and had since disappeared. With the help of the public, eight of these individuals were located fairly quickly, and by August 2011 three had been deported. The government thereupon published the names and photographs of 32 permanent residents who had committed acts of serious criminality in an effort to locate them. This indicated that while the previous government felt it was bound by privacy rules in releasing information about criminals who had gone into hiding, their reluctance apparently was unfounded.

While privacy concerns will definitely have to be taken into account when specific arrangements are drawn up on the sharing of information with the United States, it should not be assumed that we are limited by privacy restrictions in releasing information on individuals, as government authorities had assumed was the case in 2003 and 2005.

Moreover, in the event that the effective implementation of sections of the action plan that clearly benefit Canadians and enhance our security entails a review of the adequacy of our existing privacy legislation, we should be prepared to consider amending that privacy legislation. That, of course, would have to go for debate before Parliament.

Chairman, I'll conclude by flagging two other issues that have been raised in connection with the implementation of the agreement with the United States. One is the contention that in adopting the various measures provided for in the action plan, there be no discrimination between the treatment of citizens and of permanent residents in either the United States or Canada. The fact is, however, that if non-Canadians, and that includes permanent residents, are war criminals, are involved in or support terrorism, or have committed serious crimes, we do not have the same obligations to them as we do to Canadian citizens.

This is supported in international law. International consular agreements do not provide for access to non-citizens. Under domestic law, of course, permanent residents don't have voting rights or passport rights. I think we cannot automatically extend exactly the same rights to non-citizens, just because they're permanent residents, as we do to citizens.

The second issue is whether full due process has to be accorded to everyone whose right to enter Canada has been denied by the implementation of the electronic travel authority regime or by any other measures provided under the action plan. Were we to allow full due process to individuals refused entry into Canada, we would be in effect allowing any non-Canadian in any part of the world to challenge negative decisions. This might be a field day for immigration lawyers, but it would be a disaster for the Canadian legal system and a serious erosion of control over our sovereignty.

When I spoke before the committee two weeks ago, I mentioned that we already had a problem with people in Canada who weren't Canadian citizens. Section 7 of the Charter of Rights and Freedoms was badly drafted. As a result, a Supreme Court decision in 1985 made it possible for failed refugee claimants to delay their removal from Canada for years and even decades. So we already have a problem with non-citizens on our soil having a degree of due process that no other country allows. We certainly don't want to extend that to non-Canadians who aren't even here yet.

I just flag those two issues because they've already been raised and they'll likely come up for further discussion.

Thank you, Mr. Chairman.