Public Safety Committee on May 15th, 2017

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair. Seven minutes is generous.

Hello, Mr. Paterson.

I have read and reread this bill. Last week, we heard your testimony before going to vote. I was looking at these bills from a theoretical point of view.

Like you and other colleagues here with us, I stopped at strip searches. This clause is perhaps more sensitive that the others. If an assault occurs during a search, it is certainly during a strip search.

We are talking about a preclearance area that allows visitors from Canada to enter the United States more easily. This preclearance carried out by U.S. officials on Canadian soil. In view of clauses 9 and 11 of the bill, do you agree with me that, regardless of what happens, it is ultimately Canadian law and the Charter that apply, even in the preclearance area? Can we agree on that at least?

That seems to be what the bill says.

[Joshua Paterson]

I will answer in English because I am having trouble hearing the interpretation into English.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Go ahead in English.

[Joshua Paterson]

If I understand your question, you're asking whether or not we agree that in a pre-clearance area, it should always be the Canadians conducting the strip search, even when it's U.S. pre-clearance on Canadian soil? Is that what you're asking for us to clarify?

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Because of clauses 9 and 11 of the bill....

[Joshua Paterson]

Our position is that there should be no foreign agents conducting strip searches here in Canada, period. We think it's bad policy.

We are already asking U.S. officers to learn Canadian law and standards, to keep abreast of that at the same time as they have to know their own law and constitution, and to apply these things on the go all the time. Then we want to confer them this additional power to do the most intrusive thing that any police officer in Canada is ever permitted to do to someone. It doesn't get more intrusive than that, other than a digital search. This is the apex of how much the state can intrude on you.

As a matter of policy, it's a bad idea. It could lead to problems. As a matter of constitutionality and principle, this is such an intimate function, which citizens are content to allow the state to have in very limited circumstances in order to maintain all of our safety and security and everything else. The relationship between the state and individual, where it's going to get so intimate and coercive, is just so critical that it should never be delegated, not to a private security agent, not to any—

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

I'm sorry to interrupt, but I have just seven minutes and I have already used up half of that time.

Clause 22 does nonetheless provide some protection to persons who might be subject to a strip search request. In 2017, I imagine that no one would allow themselves to be strip searched in front of all the passengers at a station or in an air terminal

According to subclauses 22(1), (3) and (4), as well as subclauses 25(1) and (2), it is not that easy for an American preclearance officer to request a strip search. Subclauses 26(1) and (2) provide that the person in question may ask to see a senior office.

Let me play the devil's advocate and say that these provisions include numerous protections for a person subject to a strip search request. The person does in any case have the right to withdraw. I will get back to that later if I have the time. This right bothers us a bit because it appears that the person is being detained.

Do you agree with me? What do you think of all these subclauses that seem to protect someone who is subject to a strip search request?

[Joshua Paterson]

Clause 22 says the U.S. has the power to detain individuals for a strip search. Our understanding of that is, once so detained, they're no longer going to be able to withdraw. They are now under detention, first of all. Second of all, subclauses 22(1) and (2) are fine. We would be fine with just those two, and of course, 22(3) as well.

Where we run into problems is with subclause 22(4). We would delete number four altogether. We don't think the pre-clearance officer should ever be given the power to strip search. We don't think that subclauses 22(1) through (3) are a safeguard against number four. Subclause 22(4) deals with the circumstances where you can't get a strip search by a Canadian under subclauses 22(1), (2), and (3).

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

The person can, however, always ask for the senior officer's opinion. If a Canadian customs officer is not available or refuses to perform the search after being asked to do so by a U.S. customs officer, the person subject to the search can always ask to see a senior officer, who can ultimately decide whether the search is appropriate.

[Joshua Paterson]

If you mean going to a Canadian supervisor, well sure, why not? If rank and file border services officers of CBSA make a particular call, obviously they can be—

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

I don't think I meant a Canadian supervisor. Of course—

[Joshua Paterson]

You meant an American supervisor.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Yes.

[Joshua Paterson]

No. We just don't see that there's any rationale for any American or American supervisor to be able to have these strip search powers.

There are CBSA officers at all of these Canadian airports where this would be likely happening. There are CBSA officers in other locations. They can be brought in. To be frank, if the CBSA officer looking at the circumstances says, “No, I refuse to do it. I don't think that these circumstances obtain that which are 'necessary for the purpose of conducting preclearance', etc., which are here in the act.” Why on earth would we contemplate an American overruling a Canadian officer as to a decision that will affect so intimately someone's fundamental rights? I would go with the Canadian decision. We may quibble with the Canadian decision, but why should that decision be delegated? We just don't understand that, sir.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

On the face of it, I agree with your thinking and understand it very well.

We must remember, however, that this is a U.S. preclearance area, so the Americans must at least be given the opportunity to allow tourists or goods to enter their country. We are not living in a time when people can travel anywhere on the planet. The purpose is to accelerate the flow of goods and passengers between Canada and the United States.

The question ultimately is whether you...?

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Arseneault.

Please just give a quick response, if you have one.

[Joshua Paterson]

I think what the member may be getting at is that, ultimately, perhaps it helps travellers get across the border if the Americans have this power that they could use in the final analysis. We think that they just shouldn't be given this power. Of course, if someone consents to it, that's another question, and then a Canadian should be doing it. We just don't think that Americans should be doing this at all.

[The Chair, Liberal, Rob Oliphant]

Thank you.

I just want to reconfirm, Mr. Miller. You're going to pass?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Yes.

[The Chair, Liberal, Rob Oliphant]

We have about four or five minutes from Mr. Picard.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

I have two questions. The first is for Ms. van Vugt.

The arguments supporting the economic impact of preclearance for Canadian companies have been made in every possible way. In practical terms, what is the positive economic impact of preclearance, apart from simply being able to cross the border more quickly?

[Andrea van Vugt]

To my understanding, when Quebec City Lesage airport supported the announcement of the pre-clearance agreement, it actually said that this would contribute $75 million a year in economic growth and opportunity to the Quebec City region.

One example is a fairly serious increase in economic activity within the region as a result of the introduction of pre-clearance.

[Michel Picard, Liberal, Montarville, QC]

My question is for our witnesses from Vancouver.

With regard to the right to withdraw from the preclearance process, let me offer two or three hypotheses. The person can change their mind. They could be under stress, have physical problems, feel threatened, and so forth. Regardless of the reason, the person can change their mind to avoid negative consequences. They might also suddenly be afraid to fly.

Regardless of the reason, how can a customs officer, who is responsible for the security of Canadians, whether on one side of the border or the other, know that it is not a test? The officer must be allowed to ask questions and talk to the person a bit.

When a person goes through customs and is sent to have their luggage searched along with a second interrogation, that causes a delay. It is not a detention, but rather a delay provided for in the law. Why is that interrogation not considered simply a delay? People do after all have to cooperate with the security work of customs officials.

[Joshua Paterson]

Obviously, both Canadian and American officers have a duty to protect border safety and security as well as that of travellers and of course themselves, airport staff, and other port staff. We don't think someone should be required to answer questions on withdrawal, as you know. That's not currently the case. People are free to go if they want to go.

First, that isn't to say that they couldn't have questions asked of them. You don't need to detain someone to ask them questions. CBSA officers could also ask people questions without detaining them or requiring them to stay. They're entitled to do that.

Second, we suggested in our remarks just a few minutes ago and in our submission that there is a way of trying to narrow this down. If we say we're really concerned about people perhaps endangering security or testing the pre-clearance site, what have you, then find a way of tailoring the obligation to stick around to those circumstances. Right now, it's open-ended. They don't need to suspect anything at all. They just decide they want to do it.

We're concerned that over time that may be used in a discriminatory manner. It may be used in manners we don't yet understand. If that's our real concern, let's find a way to narrow it in the legislation so they are detained properly with a reasonable suspicion of something, and deal with it in that way.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Paterson.

That's all the time we have.

I wanted to mention to the members at the BCCLA that a report has been received and has gone through translation. It just came back to the committee once our meeting had started, so you'll get it tomorrow.

Thank you to Ms. van Vugt, as well as to our friends from Vancouver.

We're going to suspend for two minutes, and then we'll reconvene with the minister.

Thank you.