Evidence of meeting #62 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was agreement.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jill Wherrett  Acting Assistant Deputy Minister, Portfolio Affairs and Communications Branch, Department of Public Safety and Emergency Preparedness
Martin Bolduc  Vice-President, Programs Branch, Canada Border Services Agency
Tom Oommen  Acting Director General, Surface Transportation Policy, Department of Transport
Julie Watkinson  Deputy Executive Director and General Counsel, Canada Border Services Agency

3:35 p.m.

Liberal

The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)) Liberal Rob Oliphant

I'm very happy to call to order meeting 62 of the Standing Committee on Public Safety and National Security as we begin our consideration of Bill C-23, an act respecting the pre-clearance of persons and goods in Canada and the U.S. My apologies for a late start.

Mona Fortier, welcome.

3:35 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

Thank you.

3:35 p.m.

Liberal

The Chair Liberal Rob Oliphant

What a pleasure to have you. I know you're substituting today. Have you been at a committee meeting before?

3:35 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

Yes, I have.

3:35 p.m.

Liberal

The Chair Liberal Rob Oliphant

Then you're a pro.

3:35 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

I've been to the ethics committee, but not this one.

3:35 p.m.

Liberal

The Chair Liberal Rob Oliphant

On behalf of the whole committee, welcome. Your experience with other committees can only go downhill from here.

3:35 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

We'll see.

3:35 p.m.

Liberal

The Chair Liberal Rob Oliphant

Welcome, Minister Goodale, and Mr. Bolduc, and Ms. Wherrett, and Ms. Watkinson. Thank you for getting us started on our study.

I turn this over to you. The committee will have questions.

Do we have one presentation or two?

3:35 p.m.

Regina—Wascana Saskatchewan

Liberal

Ralph Goodale LiberalMinister of Public Safety and Emergency Preparedness

There's one, I believe, Mr. Chair. I'll be here until 4:30 when I have another commitment, but the officials will be here for the second hour to provide further information about Bill C-23.

3:35 p.m.

Liberal

The Chair Liberal Rob Oliphant

Perfect.

3:35 p.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Naturally, I'm very pleased to be back with the committee to discuss this very important topic.

This is the system that, for 60 years, has allowed travellers in Canadian airports to go through American customs in Canada.

Pre-clearance allows Canadian travellers to get through the process of American customs and immigration while they remain in Canada. It saves travellers from having to wait in long customs lineups once they arrive in the United States. It enables direct flights to U.S. airports that would otherwise accept only domestic travel, and it allows Canadians to complete American border procedures before departure while they are still under the umbrella of Canadian law and the Canadian Constitution.

In a nutshell, preclearance is good for travellers, for business, for tourism and the Canadian economy in general.

The advantages of pre-clearance are currently available to travellers at eight Canadian airports: Vancouver, Calgary, Edmonton, Winnipeg, Toronto Pearson, Ottawa, Montreal, and Halifax. What we're trying to do is to make these advantages available to more Canadians in more parts of the country, beginning with Jean Lesage airport in Quebec City, Billy Bishop airport on Toronto Island, and train routes out of Montreal and B.C.

We'll also be upgrading the limited operations that now exist at certain cruise ships and ferry terminals along the B.C. coast into full pre-clearance. We'll be pursuing the pre-clearance of cargo, and the implementation for the first time of Canadian pre-clearance operations in the United States for passengers moving in the opposite direction. To get this done, both Canada and the United States must agree to the terms of the expansion.

After several years of negotiation, the agreement was finalized in the spring of 2015. It was tabled in Parliament at that time. Legislation to implement it was adopted by the United States last year with unanimous bipartisan support. It is now up to Canada to enact our own implementing legislation, so that the expansion of pre-clearance and the benefits it brings can move forward. We introduced the legislation in June of last year and it is now, I'm happy to say, before your committee.

I know that certain concerns have been raised about Bill C-23, both in the media and in the House at second reading, so I want to take a few moments to address them, and I hope correct any misconceptions that may exist. To begin with, the new framework established by Bill C-23 is generally quite similar to the one that already exists under the pre-clearance arrangement that predates the current one back to 1999. Under both the old agreement and the new one, for example, U.S. officers in Canada may question travellers, examine and seize goods, and conduct frisk searches. Under both the new agreement and the old agreement, U.S. officers may detain a traveller if there are reasonable grounds to believe that he or she has committed an offence, with the requirement that the traveller be transferred to Canadian custody as quickly as possible. U.S. officers do not have that power of arrest.

Where there are differences between what exists now and Bill C-23, they are relatively minor. For example, under both Bill C-23 and the current framework, U.S. officers may detain a traveller for the purpose of a strip search and they must request a Canadian officer to conduct that search. The only distinction under the new legislation is that an U.S. officer could conduct the search themselves in the unlikely event that a Canadian counterpart is not available, and there are strict rules around the search procedure.

With regard to withdrawal from a pre-clearance area, both Bill C-23 and the current framework allow travellers to withdraw. The only difference is that under Bill C-23 a traveller could be asked who they are and why they are leaving the pre-clearance area, in order to prevent people from entering pre-clearance areas in a casual way to probe for security weaknesses and then trying to depart from that area undetected.

Bill C-23 is clear. Once travellers have declared their desire to withdraw, an officer may not unreasonably delay them. To understand this provision, it's important to keep in mind that the concept of reasonableness is used very widely in Canadian law; for example, section 8 of the Charter of Rights and Freedoms protects against “unreasonable search or seizure”, the Customs Act requires that the search of newly arrived travellers be conducted “within a reasonable time”, and the Criminal Code says that a person who is arrested “shall be taken before a justice without unreasonable delay”. Generally, courts have understood reasonableness to mean that other people in the same situation would be expected to reach the same conclusion, or behave in the same way.

With respect to officer authorities, the term has been used to refer to generally accepted standards. In fact, when the existing pre-clearance law was being debated back in 1999, the NDP, at that time, argued in favour of adding the word “reasonable” to the section on the use of force as a way of limiting officer authorities. In other words, far from being vague or a licence for abuse, the requirement that travellers not be unreasonably delayed imposes a standard that is familiar in law and familiar to the courts. The bottom line is that travellers who wish to leave a pre-clearance area will be free to do so after answering a few basic questions about who they are, and why they are leaving.

Another concern that has been raised, both in the House and the media, has to do with whether eventual Canadian pre-clearance operations in the United States would complicate boarding in the United States for people who are permanent residents of Canada. The answer in almost all cases is, quite simply, no. Permanent residents would be treated exactly according to the same procedure in the pre-clearance areas as they would at any other point of entry into Canada. The rare exception would be for a permanent resident with a major issue of inadmissibility such as serious criminality. Such individuals could still come to Canada, subject to the usual admissibility rules at an ordinary point of entry, but they may not be able to benefit from pre-clearance because Canadian pre-clearance areas at U.S. locations would not necessarily be equipped to deal with serious criminal cases.

I'm also aware of questions as to whether Bill C-23 might limit the use of technologies that help reduce wait times at the borders, such as automated passport control kiosks and mobile passport control applications. To be clear, our government is supportive of these technologies, and Bill C-23 does not restrict their use outside of pre-clearance areas.

With respect to the authorization to carry weapons, U.S. officers would only be authorized to carry the same weapons and the same restraints as Canadian officers do in the same environment. For instance, because Canadian border officers do not carry firearms when dealing with passengers in airport terminals, neither would American officers. The same rules apply both ways. This is part of the principle of reciprocity in the pre-clearance agreement, which also gives Canadian officers the same authorities in this regard as U.S. officers on American soil. In addition, Bill C-23 maintains that very strict limit on the use of force by pre-clearance officers that currently exists.

The pre-clearance agreement also stipulates that pre-clearance in both countries shall be conducted in a manner consistent with the laws and constitutions of both countries. This is really the fundamental point. The expansion of pre-clearance means more Canadians will be able to benefit from charter protections when they are crossing the border. Today a Canadian flying from Quebec City or taking the train from Vancouver to the United States must subject themselves entirely to American customs and immigration procedures on American soil, with no Canadian legal or constitutional framework.

This bill is essential to changing that. There will be more people at more locations, travelling in more modes of transportation, who will have the opportunity to pre-clear before they depart—in other words, while they are still on Canadian soil and under the umbrella of Canadian law.

I'll conclude on one final matter. At second reading the New Democrats moved an amendment to reject this bill, notably on the grounds of what the amendment called “the climate of uncertainty at the border”. Let's be clear. Some 400,000 people cross that border on a daily basis, almost entirely without incident. Interestingly enough, statistics show that fewer Canadians—not more, but fewer—are being denied entry to the United States this year compared with last year. Nevertheless, I have met with the Secretary of Homeland Security and underscored my expectation, and I think the expectation of all Canadians, that travellers headed in either direction should be treated fairly, respectfully, predictably, consistently, and in accordance with law.

In fact, it is precisely with legislation like Bill C-23 that we can best reduce uncertainty for travellers. It establishes a clear legal framework that requires U.S. officers to adhere to Canadian standards when they are applying Canadian law, not just in the eight locations where pre-clearance currently exists but at many sites and in as many modes of travel as possible.

Ultimately the expansion of pre-clearance will make travel—and shipping, hopefully—to and from the United States faster and more efficient. It will provide significant benefits to the Canadian economy, it will enhance the protection of travellers' rights and freedoms, and it will only happen once we pass this bill.

Thank you, Mr. Chair.

3:45 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you, Minister.

We are now going to begin the first round of questions.

Mr. Picard, you have seven minutes.

3:45 p.m.

Liberal

Michel Picard Liberal Montarville, QC

Mr. Minister, good afternoon and welcome, to you, to the departmental officials and to some former colleagues.

When we talk about customs, most people think about the security matters it handles. We have just come back from a trip to Washington, during which we met with members of Congress. To our great surprise, most of them told us that Canadian customs cause them practically no problems. So security seemed to be a less pressing issue for them. That leads me to understand that the economic and trade dimensions of the preclearance program is the most important and has the most positive impact.

Mr. Minister, could you tell us what the economic advantages of an agreement like this are?

With the increase in preclearance, what improvements can we expect in terms of trade and the economy?

3:50 p.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Thank you very much, Mr. Picard.

The border between Canada and the United States is a remarkable institution. It's not without controversy sometimes, or difficulties, and we should always work very hard to reduce those controversies and difficulties to make the border work even better.

As I mentioned in my remarks, there are 400,000 people who go back and forth across that border every single day. In addition to that, there's $2.5 billion in trade, two-way trade, that goes back and forth across that border every single day. That is a huge and valuable relationship. It is, I think it's fair to say, the longest non-militarized, most successful boundary line in the history of the world. It works for Canada, it works for the United States, and it needs to be safe and secure. It also needs to be efficient and expeditious.

Pre-clearance is one of the tools by which we can accomplish all of those objectives: safe, secure, efficient, and expeditious. We have it at eight airports at the moment for air travel moving south into the United States. What this agreement and this legislation seeks to achieve is to make it available in all modes of transportation, not just air, but make it available at a great many more venues and locations across the country, and make it available in both directions.

While our focus has always been on passenger travel, I think you're touching on one of the great potentials here, and that is the expansion of pre-clearance to include cargo where, instead of waiting in some of those long lineups with big trucks trying to get across the bridges into the United States when there's a lineup at the clearance point, you could actually envision a situation where the goods are loaded onto the truck at the plant or the factory, the truck is inspected at that point and sealed, and then, once it has pre-cleared at the factory, it can just go across the border without any further examination. It will take some time to develop that kind of system, but the agreement and this legislation contemplates that, enhancing the cross-border trade.

I'm very pleased to have heard Secretary Kelly, in his appearance before a congressional committee a few weeks ago, saying that he thought the Canadian border was a good example of a situation that was working properly, and he wanted to see that border become thinner, not thicker. He had some very complimentary words about Canada, Canadians, the border service operation, and so forth. That's a positive thing.

I wouldn't want to leave the impression that pre-clearance in cargo can be achieved simply. It's a big project to undertake, but the legislation and the agreement behind it allow for that eventuality to come about.

3:50 p.m.

Liberal

Michel Picard Liberal Montarville, QC

We did discuss cargo with our colleagues in the U.S., and we understand that, on their side, they have a number of additional steps to go through, considering that they have to obtain the agreement or approval of a number of organizations.

Can you give us an idea of how things will happen after this bill goes through, if it does? What are the steps following the implementation of pre-clearance, U.S. into Canada, Canada into the U.S.? What are the challenges to getting cargo along?

3:50 p.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

They're significant. We shouldn't pretend that this can be done without a good deal of negotiation and hard work and perhaps some further regulatory and legislative measures, especially in the United States. But what I'm pleased about is the very clear statement by both the Prime Minister of Canada and the President of the United States, when they met at the White House a few weeks ago, saying that this is a priority for both countries and they intend to get it done. It wasn't just a statement of objective, hope, or ambition. The two leaders committed themselves to getting this work done.

There have been some pilot projects that have been tested out to identify the kinds of issues that would have to be dealt with, so there is some work under way, but more needs to be done. I think, with the enthusiastic support of business leaders and exporters on both sides of the border, we can keep the momentum building toward a practical, effective solution.

3:55 p.m.

Liberal

Michel Picard Liberal Montarville, QC

Thank you.

3:55 p.m.

Liberal

The Chair Liberal Rob Oliphant

Mr. Clement.

May 8th, 2017 / 3:55 p.m.

Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

Thank you.

Thank you, Minister, for making an appearance here. I think that's very important as we discuss this bill.

You may not be aware, but several weeks ago I had the occasion to be in London, in the U.K., with David McGuinty, at a Commonwealth inter-parliamentary conference on national security and cybersecurity. One of the themes that was common throughout all the jurisdictions that were represented there was the idea that for security measures to work, it was important that the population buy into those measures. You have to have that public support because we're asking a great deal when it comes to security measures, and in some cases the extraordinary aspects of that.

You did address this in your remarks, but I want to return to it a little. The primary concern that seems to have emanated from the bill has been the issue of U.S. officials detaining Canadians on Canadian soil. I'm giving you the floor to address those concerns. I think that seems to be one of the issues that has gained some traction in the public mind.

3:55 p.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

It’s an important issue, Mr. Clement. As you point out, for security and safety procedures to be respected and effective, the public has to have confidence that they are properly framed and properly applied. That's why the agreement and the legislation go to some length to lay out the rules and procedures so that it is clear in the law. That's one of the first questions I remember asking my officials when they presented me with the draft legislation: do you really need all this excruciating detail in the bill? Their answer was yes, because when you lay it out and specify it according to the terms of the agreement with the United States, then you've built the fence and nailed down the parameters of conduct.

The core point is that when American officers on Canadian soil are applying the law, they have to do so—and the bill is very clear in this respect—in a manner that is consistent with all Canadian laws, including the Bill of Rights, the Charter of Rights and Freedoms, and the Canadian Human Rights Act. All of those are applicable. That is a clear distinction to what would be applicable if you did not have pre-clearance and you were simply doing the normal customs clearance in the United States, on U.S. soil, because it's then their framework that applies as opposed to ours.

3:55 p.m.

Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

I guess one of the things you may be contemplating is that, should this bill be adopted by Parliament, there might be a need to have some public communications on this to stress this point. Is that reasonable?

3:55 p.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Yes, and training, Mr. Clement. There is already training under the existing pre-clearance arrangement that goes back to 1999, but those American officers who would be functioning in Canada would be trained.

3:55 p.m.

Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

Trained by Americans or by Canadians...?

3:55 p.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

By Canadians, by CBSA and others who would make it clear to them what the rules and provisions are of the Charter of Rights, the Bill of Rights, and the Human Rights Act. That creates the framework within which they function. They need to understand the terms of those fundamental laws, as well as the critical ways in which those laws may be different from the experience they may be used to in the United States.