Public Safety Committee on Nov. 26th, 2012

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

Thank you both for coming.

I'd like to focus a bit on where I think Madam Findlay was going, which is on the new offence, however much it overlaps with existing offences, of leaving Canada or attempting to leave Canada for the purposes of committing certain acts.

There was some testimony before the Senate on this, including some from the director of CSIS, Mr. Fadden. I'm wondering—once I tell you what he said—how much of it is true or how much you need to tweak what he said. He's basically talking about there not being a generalized exit control system in this country. My question is basically around how this new offence will intersect with exit control: will we be looking for some new system, other than what we have? Do we have systems that were going to be brought together? That's the general nature of what I'd like to hear.

I'll try not to say much more than that.

Let me just quote one thing Mr. Fadden said:

I emphasize that we have not developed the protocols yet [between different agencies]. What we will need to do is work closely with the Mounties and make sure we are communicating at all times with border services.

The other complicating factor...is that Canada has no system for controlling exits. We do not even have a system to be aware when people are leaving. This will involve more than CBSA; it may involve CATSA, the agency of the Department of Transport that regulates security.

Then he says: “I should not say much more because I will get myself into a situation I will not be able to get myself out of.”

I'm not exactly sure what he was thinking of with the last sentence, but the question is, could you please tell us what exists and whether you are aware of any discussions or plans around some kind of generalized exit control system, perhaps one that would build on the U.S.-Canada declaration from last year?

[Geoffrey Leckey]

Are you referring to the Beyond the Border declaration?

[Craig Scott, NDP, Toronto—Danforth, ON]

Yes.

[Geoffrey Leckey]

Well, while trying not to put myself into the place that Mr. Fadden didn't want to get into, let me answer to the best of my ability.

There is no plan to establish a formalized exit control system. Under the Beyond the Border initiative, which we've agreed upon with the United States, Canada will be establishing an entry/exit system whereby the entry into one country will become the exit record for the other country. Of course, that will mean that the Canadian government will only learn about the departure of an individual from Canada after the fact—very soon after the fact, but nevertheless after the fact.

The way Bill S-7 would operate would for the most part be based on intelligence indicators or information that was available before an individual left Canada.

[Craig Scott, NDP, Toronto—Danforth, ON]

Could I just ask you to specify, as you are probably about to, how that information gets to you? You're talking about intelligence tracking a person to the airport. Is there another system, in that you are told a name, you look for the name, and you grab the person?

How is this going to work?

[Geoffrey Leckey]

We exchange information all the time with our two primary partners within the security and intelligence community: CSIS and the RCMP.

[Craig Scott, NDP, Toronto—Danforth, ON]

Can you just take us through how it would work if somebody were under suspicion of intending to leave the country for this purpose? Would you be getting a call at the border from CSIS with a name? What would you do with the name? Or would that person actually be literally under some kind of surveillance?

[Geoffrey Leckey]

If that individual were under CSIS or RCMP surveillance, that would continue. By no means would they pass surveillance to the CBSA.

Maybe I should go more deeply into the kinds of authorities CBSA does and doesn't have when it comes to the exit of individuals from Canada.

At the moment, the Customs Act does not confer peace officer powers to Canada Border Service officers. That's because the wording of the Customs Act does confer peace officer powers whenever BSOs are operating within their normal duties at a customs office.

Our legal advice is that conducting exit controls does not fall within the definition of the normal duties of a border services officer, because the Customs Act does not confer any authority on CBSA officers with regard to travellers leaving Canada. We have certain specific powers to conduct exit controls on strategic exports and currency, but not people.

Also, the Customs Act is quite explicit that border services officers may not use the powers conferred on them under the Customs Act for the sole purpose of looking for evidence of a criminal offence. That is spelled out in so many words in subsection 163.5(4) of the Customs Act.

For CBSA to intervene in a more active fashion, when it is known to the security intelligence community in advance that someone is intending to leave Canada for a terrorist purpose, would require amending the Customs Act and possibly IRPA. A more active fashion would include, for example, having powers to arrest or to search.

What we can do is provide information to our security partners in the same way we provide it at the present time. In other words, we can provide supporting information that is already in our possession, such as the travel history of an individual we receive an inquiry about. Or we can provide information about the immediate whereabouts of a target, if we are aware of him or her. Also, on request, we issue lookouts on targets and persons of interest to our security partner agencies.

Moving a bit further down the timeline, we're also responsible for removals. Whenever someone is found inadmissible to Canada because of his or her association—

[Craig Scott, NDP, Toronto—Danforth, ON]

That's a different kind of leaving.

[The Chair, Conservative, Kevin Sorenson]

All right. Our time is just about up.

We'll go to Ms. Bergen and then to Mr. Scarpaleggia.

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

Thank you, Mr. Chair. Thank you to both of the witnesses for being here.

Mr. Leckey, I think it is important that you reiterate for all of us the difference between this and the Beyond the Border framework we have with the U.S., under which we are establishing in certain places an exit/entry sharing of information. Can you please explain how that is different from what we're discussing with regard to this particular bill on people wanting to leave the country for the purpose of engaging in terrorist activity?

[Geoffrey Leckey]

The entry/exit system that we're discussing, that we're working on, that we are developing actively, together with our American counterparts, is an exchange of information on individuals who have entered one country. That information will then be shared. In fact, under a pilot project that's under way as we speak, it is being shared back to the country the individual just departed from. It's an exchange of data. It reflects the fact that an individual has left your country, which we wouldn't have known about before.

What this does for us, which we couldn't do before, is to close the loop on an individual's travel history. It allows us to track individuals, to be aware that persons are overstaying their visas. It allows us to monitor the departure of persons subject to removal orders. It allows us to verify that residency requirements are actually being met by applicants for eligibility in immigration programs. It will also serve the purpose of establishing a history of compliance for legitimate travellers.

To that extent, it is not an exit control system, in the sense that there's any sort of authority being exerted to prevent someone from leaving or to permit someone to leave the country.

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

Thank you very much for that clarification.

I want to go back to Bill S-7 now, to three of the main parts of the bill and the changes, basically the updates, that come back to law enforcement in order to effectively counter terrorism and keep Canadians safe. I think it's important that we hear again your role. Some would think that you are just at the border, so if terrorists come in and if you're not aware of who they are, how can you actually help stop them? Can you please talk about the integrated approach you have with other law enforcement?

Specifically, you talked about a layered approach and risk management. I think it's important that we hear about the role CBSA plays in countering terrorism and about why these specific changes are necessary.

[Geoffrey Leckey]

Thank you for that opportunity.

The agency is responsible for refusing entry up front to foreign nationals who are known or suspected terrorists. Also, a permanent resident or foreign national may be found inadmissible for reasons of terrorist associations, under section 34 of IRPA, if they've engaged in or there are reasonable grounds to believe that they may engage in terrorism.

If they have entered the country and they are found to have terrorist associations, then the CBSA's removals program prioritizes the removal of high-risk persons in Canada who pose a threat to national security. They are the number one priority for removal.

Key CBSA programs that support the identification and removal of terrorists would include screening up front, which I've spoken about; international operations, that is, information collected by our liaison officers overseas in some 49 countries; and our targeting program, which is based on data analysis of information on passengers on inbound flights to Canada. There's, of course, the port of entry examination, and then there's our removals program.

At every point of the travel continuum, there's a different layer of activity on the part of CBSA.

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

Two of the things that Bill S-7 reinstates are recognizance with conditions and investigative hearings. We've heard testimony so far to the effect that it's important that those be reinstated, since they are important tools for law enforcement to use in fighting terrorism and stopping terrorist activity.

Is that something CBSA supports? Specifically, I'm thinking of the recognizance with conditions. There may be times when your intelligence will discover that there are certain activities taking place or are going to take place, and I would think the ability of law enforcement to stop those activities in a timely manner is very important. Would you agree? Does CBSA support those parts of the bill?

[Geoffrey Leckey]

Yes, we do support those parts of the bill. We support all parts of the bill, though that particular part of the bill is one that CBSA is likely to be involved in marginally.

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

You would not be directly, yet you would be indirectly. I would think that would be because you would potentially be finding out who might be coming in, also through the intelligence.

The other witness may want to speak to the risk management. If my understanding of your role is correct, is there some connection between what you're doing and possibly the recognizance with conditions?

[Sébastien Aubertin-Giguère]

My job is to look at how the CBSA allocates resources at the border and use a risk approach to allocate the resources where it matters the most, so I have a more detached view. But I would say that more generally, the more accurate the information, the more we are able to identify very early on in the travel process, the travel continuum, individuals who pose a national security threat to Canada.

So the answer is yes.

[The Chair, Conservative, Kevin Sorenson]

You have 40 seconds.

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

That's all I have right now.

Thanks.

[The Chair, Conservative, Kevin Sorenson]

We'll now go to Mr. Scarpaleggia, please, for seven minutes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Like everyone here, I'm trying to wrap my mind around what is a very complex system.

If I understood correctly, at the moment, if you're alerted to the fact that someone is leaving Canada to train in a terrorist organization, you don't have the authority to stop them?

[Geoffrey Leckey]

That's correct.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So this will grant you authority to stop them.

Will these new offences have a significant impact on how the CBSA operates, or is it really a minor change to how you will react in certain circumstances? Will it have a more significant effect than just giving you the authority to stop somebody from boarding a plane?

[Geoffrey Leckey]

I'd just like to point out that Bill S-7, as currently drafted, does not give the CBSA the authority to stop people.