Public Safety Committee on Nov. 7th, 2012

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting number 58 of the Standing Committee on Public Safety and National Security. It is Wednesday, November 7, 2012. Today we are dedicating a meeting to the subject matter of clauses 264 to 268, affecting the 2001 Customs Act.

These clauses, as you know, are part of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures. These are the clauses of Bill C-45 that are under the purview of our committee.

Our witnesses today will help us examine these clauses. They are from the Canada Border Services Agency.

We welcome to our committee, first of all, Mr. Daniel Champagne, director general of infrastructure and environmental operations; Ms. Kristine Stolarik, the director general of the pre-border programs directorate; Ms. Anita Henderson, counsel with the legal services branch; and also Ms. Sharon McKeen, manager of the travellers unit, advance information and programs.

Our committee thanks these witnesses for testifying today. Once again, we have Canadian public services responding to our call on short notice to help us as the committee go through these clauses that are part of the implementation act. In our final 30 minutes, we will have a discussion of possible recommendations and amendments based on what we have heard today.

Mr. Champagne will be bringing forward the testimony, and we look forward to that.

I see that you have a printed text and it is not that long. We are going to try to keep it as short as possible so that we have ample time for questions and then ample time to draw up our recommendations.

Welcome.

[Daniel Champagne, Director General, Infrastructure and Environmental Operations, Canada Border Services Agency]

Thank you, Mr. Chair, and members.

As the committee is aware, the Canada Border Services Agency is responsible for integrated border management that supports national security and public safety priorities and facilitates the free flow of legitimate persons and goods, while meeting all requirements under program legislation.

This responsibility extends to the enforcement of immigration and refugee policy, border inspection of food, plants and animals, and providing intelligence and enforcement support to uphold our safety and security obligations under the law.

In all, the CBSA is responsible for the administration of some 90 acts and regulations that govern the admissibility of people and goods into and out of Canada.

Today we are pleased to be here to discuss the proposed changes to the Customs Act contained in Bill C-45. There are three amendments in total.

First, with regard to pre-departure traveller information, the first proposed change will amend subsection 107.1(1) of the Customs Act to allow the Minister of Public Safety to require the reporting of prescribed information about persons who are expected to be on board a conveyance. This amendment would allow the CBSA officials to review traveller information earlier in the travel process—that is, prior to departure of a conveyance to Canada. This amendment is consistent with the agency's priorities to push the border out and address threats at their earliest opportunity.

With all new or modified programs that collect, use, retain, or disclose personal information, the CBSA will assess the risk to individual privacy rights and address those risks through appropriate strategies. Dealing with large volumes of sensitive personal information on a daily basis, the agency respects privacy rights and fosters a culture of privacy throughout the organization. This is evidenced in CBSA's reputation as a global leader in its treatment of advance passenger information and also passenger name record data.

This amendment will protect Canadians by increasing the integrity of the border, and is also expected to result in cost savings in the long term by reducing costs related to the arrival of inadmissible persons in Canada.

With regard to advance data requirements for the pre-screening of cargo, the second proposed change amends section 12.1 of the Customs Act. It is aimed at improving the risk assessment of goods before they arrive in Canada. Section 12.1 amendments will strengthen and streamline the pre-arrival, including preload, advance information requirements for all commercial goods destined for import to Canada, including in-transit goods. They will also improve enforcement measures based on advance information provided, including new enforcement measures for failing to comply with a “do not load” notification issued by the CBSA.

These amendments would allow the Agency to better mitigate health, safety and security threats prior to the goods arriving in Canada.

The final amendment relates to clarifying port authority obligations with respect to the maintenance of customs facilities.

Increasingly, owners and operators of international toll bridges and tunnels, airports, marine ports, and railways are questioning and legally challenging the scope of their obligations under section 6 of the act to provide, equip, and maintain adequate port of entry facilities free of charge to Her Majesty.

The amendments clarify what the CBSA has always required owners and operators to provide and maintain and what owners and operators have always provided and maintained free of charge to Her Majesty since the inception of section 6, enacted in 1986.

The changes do not impose additional obligations or requirements on owners and operators, who collect tolls and fees from travellers using their facilities. This clarification amendment regarding the scope of the term “maintain” is needed to ensure continued access by the CBSA to adequate port of entry facilities free of charge.

The three amendments pertaining to the CBSA before you support the agency's efforts to ensure that travellers and goods will not pose a threat to the safety and security of this country.

Thank you for the opportunity to speak to you today. My colleagues and I are pleased to answer any questions you may have.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much for your testimony. I also want to thank you for having it in a text for us. I think that makes it a little easier.

We'll move into our first round of questioning, and we'll start with our Parliamentary Secretary to the Minister of Public Safety.

Ms. Bergen.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here today.

My first set of questions has to do with the amendments with regard to the advance passenger information program.

Mr. Champagne, can you tell us if the Privacy Commissioner was consulted with regard to these amendments?

[Daniel Champagne]

Thank you very much for your question.

I will, if it's okay with members, pass this over to Kristine Stolarik.

[Kristine Stolarik, Director General, Pre-Border Programs Directorate, Canada Border Services Agency]

Thank you for the question.

Yes, we have worked with the Privacy Commissioner on a regular basis on the API/PNR file. Since 2003 we have actually engaged them on the API/PNR files that we have been working on.

I do have with me Ms. Sharon McKeen, who is the file expert on API/PNR. She has worked closely with the Privacy Commissioner's office since her tenure in that file. She can also give you a bit of a chronology on how often we have consulted, and walk you through that scenario.

Sharon.

[Sharon McKeen, Manager, Travellers Unit, Advance Information and Programs, Canada Border Services Agency]

Thank you.

In dealing with the Office of the Privacy Commissioner, we communicate with them on privacy impact assessments. We have three privacy impact assessments in place since 2003. There were two in 2003, one in 2004. We have also responded to an audit in 2006. We had a joint review of the requirements to provide API/PNR from all commercial carriers on flights bound for Canada. These are inbound flights only, not domestic, not outbound.

We had consulted with the OPC in March 2011, and as recently as June 2012. In June 2012, when we did meet with them, we went into a lot of the...let's call them the improvements that we are bringing into place for API/PNR.

We have the intention of meeting with them in two weeks to have technical discussions on PNR. This was a recent request that has come in from the Office of the Privacy Commissioner.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you.

If I'm understanding you, the answer is positive: yes indeed, you have consulted on an ongoing basis. It sounds like, once these amendments were brought forward, there's been discussion with the Office of the Privacy Commissioner.

Can you tell us what the office's response has been?

[Sharon McKeen]

The office is interested in the modifications to the program that are currently being discussed in another forum, in negotiations with the European Union. I won't at this time get into the negotiations, as they are ongoing.

We have heard from the OPC that they are concerned; that if the access, collection, retention, and privacy safeguards are changing, they want to be apprised. This is why we on our own initiative requested to meet with them in June 2012 to address any of their concerns and to make sure.

When we approached cabinet in 2010 and then also in spring 2011—we had to go back for a revised mandate—our obligation to keep the OPC informed was in the mandate. We have done so. Their main concern is the retention, access to, and collection of API/PNR data. Those are the areas we'll focus on as we continue to keep them abreast of changes that are being considered for API/PNR.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

We appreciate that. We want to ensure that the legitimate flow of trade and travel is facilitated and that anything illegitimate or illegal is not. But our priority remains the privacy of Canadians, so we appreciate so much these very proactive endeavours. Thank you for communicating this information to us.

On that same topic, Mr. Champagne, you may wish to comment, or one of the other individuals with you. You briefly mentioned, because of the work you do, the ability of CBSA to deal with very sensitive and very private information.

Can you talk a little about that and about what kinds of processes you already have in place, as well as how you work with the Privacy Commissioner on a number of these initiatives? I think it's important that we know about working with sensitive information, and again, the privacy of Canadians being an important part of what you do, we need to hear some of the background and some of your history on this.

[Daniel Champagne]

I'll defer to Kristine Stolarik on the question of privacy. Thank you.

[Kristine Stolarik]

Thank you for the question.

Mr. Chair, I will defer to Sharon McKeen, because her office has done a lot of work and is responsible for a lot of the sensitive information that we deal with on the API/PNR front.

[Sharon McKeen]

Thank you.

To go back to the evolution to the API/PNR program, the API—the advance passenger information—is the biographical information; that program's inception was in 2002. Then we further included the receipt of information on travel, which is the passenger name record, your itinerary.

The Office of the Privacy Commissioner was not pleased with our having access to information on everybody travelling to Canada. They had serious concerns. Because of those concerns, we have done and continue to do a lot of work to monitor the systems. We have a set of 43 commitments in place with the European Union. Those commitments have been entrenched in regulations and legislation.

They dictate where the information is to be retained—they even name the automated system in which the information is kept—and they name who has the ability to authorize. We have authorized access related to function and to use, and on a need-to-know basis. We have commitments in place for the retention of the information, for the sharing—who we can share with—and how often we are able to access that information.

That information, and this is a very important point, is actually depersonalized as we get it. The full information on the traveller comes in, and we have 72 hours with that information. At the 72-hour mark, we begin to depersonalize, so that the passenger's name is actually masked from the information.

We have further access to that information from 72 hours to two years. At two years, all of the information is depersonalized, so there is no information that can be connected to the individual.

We have further access for 18 months—up to three and a half years. At the three-and-a-half-year mark, all of the information is deleted or expunged from our system.

We retain the information that's necessary for enforcement or intelligence activities only. We have access to that information for as long as that's an active case. When the information is no longer active, no longer needed for enforcement purposes, that too is deleted.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll now move to the official opposition, to Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair.

Thank you very much to the witnesses for being here today, at short notice not because of our committee but because of the way this is proceeding in the House.

I'm going to focus my questions on the pre-departure traveller information. I want to go back over to the question that Ms. Bergen was asking.

You have been in consultations with the Privacy Commissioner's office, but that does not mean that the Privacy Commissioner's office has signed off on any of this material that's before us today in this bill.

[Sharon McKeen]

They have signed off on the privacy impact assessments that were created in 2003 and 2004. We're currently amending those privacy impact assessments to reflect the changes in the evolution of the program.

This is the reason we are starting our briefings with the Privacy Commissioner, to address their concerns.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

So the changes that have been made in the program have not yet been assessed by the Privacy Commissioner's office, and in addition, these amendments have not yet been assessed by the Privacy Commissioner's office. Is that correct?

[Sharon McKeen]

With regard to the amendments that are being considered, we did begin our negotiations with them in June, and we did share with them some of the amendments that we are undertaking with the European Union.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

One thing that happened to us today is the result of unfortunate scheduling, in that the finance committee was competing for the Privacy Commissioner. Because of our restrictions, we won't be able to have the Privacy Commissioner here. That is why I'm spending some time on this. These are questions I would prefer to ask the Privacy Commissioner, so I apologize if they seem less appropriate to ask to you.

If I understand the impact of the main amendment here, on pre-departure traveller information, it's to allow collecting both API, as you call it, and PNR information earlier in the process and have it conveyed to the Canada Border Services Agency earlier in the process. Am I correct about that?

[Sharon McKeen]

Yes. Today the information is sent at the time of departure. Many of you or likely all of you have flown. It's important to note that you're in your seat, your seat belt is on, the door is closed; you're coming to Canada. Unfortunately, for short-duration flights and for numerous flights coming in at the same time, there are often competing priorities for our targeting and intelligence folks to assess risk.

The reason we're receiving API/PNR is to identify threats coming to Canada that threaten the safety and security of Canadians. For this reason, and to compete in the international forum as well, we need the information a little bit earlier to be able to assess the threats.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Does that mean that, if you get it earlier, you'd be going back to the airline or whoever is conveying this person and would be asking them to deny boarding?

[Sharon McKeen]

It is certainly one of the opportunities we have. It's not something we have in place today.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

What other purpose would there be in this amendment, other than that one?

[Sharon McKeen]

Identifying the threats; if we don't provide a board/no-board recommendation, one of the opportunities is to identify the threat so that when they do reach Canadian soil, we're able to meet them and mitigate that threat.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Are you anticipating there would be sharing of this information if it's required earlier with other governments or with the security agencies of other countries?