Evidence of meeting #64 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 pre-clearance.
A video is available from Parliament.
3:55 p.m.
Liberal
The Chair Liberal Rob Oliphant
I wasn't as clear as I should have been that we had one presentation and then questions to either of our witnesses.
3:55 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
I have a question for Ms. van Vugt and a couple of questions for our folks in Vancouver.
Ms. van Vugt, I just want to drill down a bit on the cargo pre-clearance. You mentioned that in your remarks. Can you comment on the costs that would be reduced, for instance, by not having trucks all lined up, spending hours with lengthy waits at the border? I want you to expand on that a bit.
3:55 p.m.
Vice-President, North America, Business Council of Canada
With respect to the costs, I would want to come back to you with some examples of reduced costs, which I could provide to you in greater detail.
From our perspective, our vision is that you would enable a CBSA officer to be perhaps at the GM facility and able to certify that the goods on the truck are safe, that they are exactly what they planned to be. They put a lock on the truck; the truck moves. You don't, as a result, see the additional wait times at the border, and you also don't have an increase in the resources at the border in order to be able to pre-clear that truck.
From our perspective, that's a win for the company, for our border officials, for the government, and also for companies on the other side of the border that are awaiting that shipment.
4 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
Thank you for that.
For our friends at the BCCLA, I recall your concerns about the power of American officials to detain Canadians on Canadian soil. Minister Goodale addressed that point in his remarks to the committee, as well, and indicated this is a better system than having all travellers clear customs on U.S. soil, because ultimately in Canada a Canadian will have more robust legal recourse. I just want your comments on that assessment by Minister Goodale.
4 p.m.
Executive Director, British Columbia Civil Liberties Association
I agree with Minister Goodale that it's better for these things to take place on Canadian soil. I don't see the option for most travellers as being between doing it on Canadian soil and doing it on American soil, because pre-clearance exists in much of the country already. I think where the issue comes in for us is what this actually means in terms of someone's remedy or accountability under Canadian law.
Last day, if you can cast your mind back, we addressed some of the issues about how the bill simultaneously exempts Canada from liability for the actions of these agents, while exempting the United States from most liability too. Even aside from that, there's no accountability mechanism proposed. There's no recourse mechanism built in.
Talking of business travellers, the Canadian Bar Association points out that there's no real redress mechanism in the bill for NEXUS travellers who have their cards revoked in pre-clearance. There are lots of things that can be done to improve this bill. Certainly, we want this happening on Canadian soil, but we don't want Canadians to be stymied—or Americans or others—when something goes wrong, as it inevitably does, and there is nowhere for them to complain. That is our real concern about this.
4 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
Is that not contemplated in the bill right now? Is there no resolution mechanism?
4 p.m.
Executive Director, British Columbia Civil Liberties Association
In respect of civil remedies for, say, charter breaches, which can often happen or at least be alleged in detention situations, the remedies require going to court for those kinds of things if they're serious enough, but those avenues are blocked.
4 p.m.
Executive Director, British Columbia Civil Liberties Association
Now, someone may try to get around it somehow, but the bill has set up a regime where it's not obvious how you would do that.
4 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
It's not obvious who would be liable in those circumstances. Could there be a judicial order that would create a new law saying that in this situation a Canadian should be treated in a particular way? Would that be at least a partial remedy?
4 p.m.
Executive Director, British Columbia Civil Liberties Association
Certainly, with any act of Parliament that has constitutional problems, if someone goes to court and brings those problems up, it's possible for a court to say that Parliament did it wrong and to show how it could be remedied.
Just because there may be someone out there with the wherewithal to take some of this to court, if they were sufficiently aggrieved, that's not a reason to not try to fix some of these things now.
4 p.m.
Executive Director, British Columbia Civil Liberties Association
We try to avoid these things on the front end. They may get to court and find that because of the State Immunity Act there's no liability on the part of the United States. Moreover, it could be a very expensive judicial process to try to strike down the portion of the bill that says these aren't crown agents, and we'd have big arguments over who's a crown agent and for what purpose.
You've seen these things before, Mr. Clement, as have others on the committee.
4 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
I seem to recall—this is to the BCCLA—that in your presentation you turned your mind to the strip search potential. The concern was raised about there being no Canadian official available. It struck me that we're trying to predict the future here. Are there going to be many circumstances, or are they going to be few and far between, where a Canadian official isn't available and an American officer will be performing the strip search? I think that was an important point you made. Could you delve into it again?
4:05 p.m.
Executive Director, British Columbia Civil Liberties Association
Sure. What the minister had said to the committee was that Americans would only be able to conduct a strip search if a Canadian officer were unavailable and that would be a fairly rare occasion, but the bill permits the Americans to strip search not only if a Canadian officer isn't available within a reasonable time but also if the Canadian officer fails to show up for an appointment to conduct a strip search at the specified time, and third, if the Canadian officer declines to conduct a strip search.
Our submission last day was that this is fairly shocking, particularly the last one, but all of them on the whole. We can see no circumstance in which there should ever be an occasion for an American to perform a strip search.
If you think about the context of law enforcement where strip searches happen, they are not happening exigently out on the street—oh my God, we have to strip search this person right now. In almost every case they take place back at the station after some time has elapsed, after the person is secured, and so forth.
Given that—and case law backs us up on this—the strip search is a venue where your rights are being infringed most intimately, and we allow that under certain circumstances. But given how rich an area it is for rights violations, we don't think the Canadian government should delegate that. It should be Canadian officers who conduct it. If that takes 20 extra minutes, or an extra hour while CBSA handles this or that, we think that's a fine price to pay given the stakes that are involved.
4:05 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
You would amend the legislation to basically allow the requirement that it be a Canadian officer in all circumstances, is that right? I don't want to put words in your mouth.
4:05 p.m.
Executive Director, British Columbia Civil Liberties Association
All circumstances. In really exigent circumstances, they are entitled to use force, they are entitled to restrain—these are the U.S. officers—they are entitled to detain. We might quibble around the edges with some of that stuff, too, but if you have someone now locked down, we can imagine no circumstance, and none has been offered, I think, by the government, where an American has to be able to get in there and do the strip search pronto. Why can they not wait?
4:05 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you, Mr. Chair.
I'm going to do something that's a bit risky in politics and go into a hypothetical that was raised with CBSA. If I recall correctly, it might have been from questioning by my colleague, Mr. Spengemann.
It was to CBSA officials basically along the lines of the use of X-ray machines and whether a pregnant woman would choose to not want to use the X-ray machine. I don't have it in front of me, but the quote if I recall it correctly was along the lines of not giving consent is a reason for suspicion, or something along those lines. It's probably a bit dangerous to paraphrase in that context.
Could you folks with the BCCLA speak to the difference in what is cause for suspicion and how that plays out in the bill versus what might be reasonably suspicious to an American officer versus a Canadian, and how or how not that's qualified?
4:05 p.m.
Executive Director, British Columbia Civil Liberties Association
Thank you, Mr. Dubé.
One recommendation that we provide—and by the way, to answer Mr. Clement's question from the other day about recommendations, by now you should have our full brief in translation, with recommendations in it—is that it needs to be made clear that the refusal to answer any question asked by a pre-clearance officer doesn't in and of itself constitute grounds for the officer to suspect that an offence has been committed. Certainly, refusing to answer questions is germane to whether or not they want to let you into the United States, and that's their sovereign right, but someone's discomfort with answering certain questions isn't on its own, for our purposes, suggestive of an offence having been committed.
We note that a number of the standards have changed for doing certain things. Previously, in terms of someone being detained, if they weren't withdrawing, they could be detained by U.S. officers if it were believed—I believe it is—on reasonable grounds that they had misrepresented themselves to the officer or that they had obstructed a U.S. pre-clearance officer or had committed an offence under any act of Parliament. Bill C-23 expands this, or really just takes away those particulars and says that a U.S. officer is entitled to detain someone:
If a preclearance officer has reasonable grounds to believe that a person has committed an offence under an Act of Parliament,
We find this to be overly broad. It's not particular to when in time that offence happened. I don't suppose that U.S. officers will want to be on detention sprees, detaining people simply because of some conviction 25 years ago, but there may be some who would detain people on grounds that we might not find palatable, and this doesn't make it particular enough. When does the offence have to have been committed? Is it any offence under any act of Parliament? By the way, they took out the summary conviction or indictable offence piece. Does this mean administrative offences are now grounds for possible detention, however long ago they may have been committed?
We recommend that those be tightened up to state that U.S. pre-clearance officers should have the power to detain if they have “reasonable grounds to believe that the traveller has committed an offence under an act of Parliament, punished by indictment or summary conviction in connection with the travel”, or some wording that links the offence to the act that they're undertaking, to the pre-clearance of their travel.
4:10 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
If I may, that's interesting, because one of the issues with the right to withdraw, for example, is that if you do choose to withdraw, you're obliged to provide truthful information to the officer. On the surface that obviously seems well and good, common sense, and so forth, but as we know, for many of the people who've raised the spectre of wanting to withdraw in many of those instances, it's sometimes related to a whole variety of things that are perfectly legal but that the person might be uncomfortable with.
I have a problem with the fact that someone might say, “You know what, I don't feel comfortable answering question XYZ”, not because they've done anything illegal but for a whole slew of reasons that are perfectly valid reasons that we might not experience personally but that some folks certainly do. Is there perhaps a similar wording that could be looked at, for example to provide truthful information in relation to the purpose of their travel, or something like that? It seems too broad that the American officer who is dealing with the person withdrawing could essentially ask them about all sorts of things, and then that person would be legally obliged to comply and would no longer have the right—on Canadian soil, it's worth reminding folks—to leave that zone and say, “You know what, this is not something I want to subject myself to.”
4:10 p.m.
Executive Director, British Columbia Civil Liberties Association
I think there definitely could be things done to tighten up the withdrawal questions.
We would start by saying that, people should simply still be allowed to withdraw and we've noted that in our recommendations. If the person had reasonable grounds to suspect that there had been false or deceptive information given, or that they were committing an offence in relation to their presence in pre-clearance—for example, casing out the joint, as we've heard, and those kinds of concerns—and if there was a genuine suspicion of that, we would be more comfortable with a limitation like that on stopping someone from withdrawing to begin with.
There aren't three states in law: free to go, detained, and “Hold it right there, you have to answer my questions and I won't unreasonably delay you.” That is detention. If you're not free to go, you're detained. We say, at law, that there needs to be a stronger trigger for that than simply, “I want to ask you questions.”
I think if you tightened up why you could ask those questions to start with, then the actual questions and the things you have to do in that situation, perhaps become more palatable. I'm not signing off that it would necessarily be constitutional, but I think that perhaps that gets us closer in that direction.
4:15 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
I certainly agree that the right to withdraw should be left as is and protected, but that being said, I think sometimes looking at how to fix it highlights the problems.
This is only one example that I found. There might be others in the bill. I'd have to go back and double-check. But if we look at clause 18, under traveller's obligations, in paragraph 18(2)(d), it states that one must, “comply with any other requirement that is prescribed by regulation.” I asked officials a question about what regulatory changes were going to be made, without a satisfactory answer, as far as I'm concerned, because they still don't know, which I find problematic.
When we saw each other last meeting, I asked you about training and whether there should be a formal list of who is doing the training and what the training consists of. When it comes to regulation, it has nothing to do with the text of the law itself. However, maybe there should be more transparency to understand that, if you have a law that says you're telling a traveller to comply with any other requirement that is prescribed by regulation and officials can't tell a parliamentarian what regulation is going to be changed, that seems problematic to me. I'd like to hear your thoughts on that.
4:15 p.m.
Executive Director, British Columbia Civil Liberties Association
Members won't find it surprising that our association also finds that problematic because, if you're giving people these directions that they're legally required to do things, I think they need to be able to understand what those things are. Of course, regulations would spell those out, but I think, as parliamentarians, you need to have some satisfaction as to what those requirements might be before you sign off on a coercive power being used against travellers to do some set of undefined things.
Thinking back to Ms. van Vugt, naturally, we all want to have trust in government. We know that no one in government is sitting here out to do the wrong thing in relation to this bill and its implementation. That being said, I think we need more than just, “Trust us, we're going to do some regulations and they're going to be fantastic”, not that that's what the government said. I think we do need more than that.
4:15 p.m.
Liberal