Evidence of meeting #70 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 clause.
A recording is available from Parliament.
5:40 p.m.
Liberal
The Chair Liberal Rob Oliphant
Sorry. It was dealt with already, but we will have a recorded vote on clause 22.
(Clause 22 as amended agreed to [See Minutes of Proceedings])
(Clauses 23 and 24 agreed to)
(On clause 25)
Ms. May has an amendment.
5:40 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Chair.
As you can imagine, it's difficult not to be able to participate in the debates on other amendments. I certainly would have liked to support marine workers, who are concerned about U.S. officials having negative comments on their work.
I'm now making an amendment specifically to clause 25. It would change subclause 25(2) as it starts on page 11 and goes over to page 12. This is within the context of a traveller having a right to see a senior officer before being subjected to a search. As it's currently drafted, it says:
Senior officer’s agreement
(2) If the traveller is brought before a senior officer, the search is permitted only if that officer agrees that the preclearance officer or border services officer, as the case may be, is authorized under the applicable section to conduct the search.
My amendment would create another condition:
and that the search is necessary for the purpose of conducting preclearance.
Again, on the advice of the brief from the Canadian Bar Association, this is to create for the senior officer a discretion that the strip search doesn't have to and should not be conducted where the senior officer determines that there are insufficient circumstances to warrant an invasive act such as a strip search. It makes it clear that it's not just a question of whether the junior officers are authorized, but whether in fact a search is necessary for the purpose of conducting pre-clearance.
It stands as an intermediate position between my earlier amendment, which was defeated as identical to the NDP amendment, of eliminating strip searches, but creates another condition. It is a discretion for a senior officer.
Thank you.
5:45 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I heard what our colleague Ms. May said.
However, I think it is redundant because that is precisely what subclause 25(2) states. That is essentially it: in French with the words "au titre de la disposition applicable" and in English, "may be, is authorized under the applicable section to conduct the search". Thus we come back to "applicable section" in the bill, which I think is redundant.
So I will be voting against the motion. The same thing is being said twice.
5:45 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
It is not exactly the same thing. That is why I would like us to add the words "the search is necessary for the purpose of conducting preclearance."
It's actually different and additional, because it gives the senior officer discretion that isn't there now. If the junior officers are authorized, then the senior officer has nothing to say about it. Again, this is the view of the Canadian Bar Association as well.
5:45 p.m.
Liberal
Michel Picard Liberal Montarville, QC
I would invite my colleague to look at the first line of clause 21, which states:
A preclearance officer may, for the purpose of conducting preclearance,
This is the reason they do a strip search, so this is a redundancy.
5:45 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
No, it's not. Sorry.
If I may, Mr. Chair, let me just briefly say.... I know I'm not allowed to say too much in defending my amendments, but—
5:45 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
—the difference between being redundant and having purpose and meaning that improves the act is this. The existing act says that when you're doing a pre-clearance, you can decide to do a strip search. Nowhere in the current clause does it say that a strip search can be conducted only to the extent that it is necessary for purposes of conducting a pre-clearance. There is no requirement of necessity. Under the law, that's a different concept from authorization.
5:45 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I am trying to understand the subtle distinction my colleague is raising.
If we go back to subclause 22(1) or subclause 22(4), we are still talking about reasonable grounds.
If I correctly understand the part concerning the senior officer's agreement, the senior officer must ensure that "the preclearance officer or border services officer, as the case may be, is authorized under the applicable section to conduct the search."
The senior officer will surely ask the officer or junior officer why he or she wants to search a particular person. The latter must then justify his or her decision under subclause 22(1) or 22(4). In my view, the amendment Ms. May proposes is already in the bill.
Those are my comments. I may be mistaken.
5:45 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
I would just like to add this.
Under the current legislation-you are right-the Border Services Agency may conduct the search if it deems it necessary. However, the bill makes no provision concerning the other officer, the superior officer, the senior officer. It is unnecessary for the senior officer to consider whether the search is really necessary or not. That is not within his or her discretion.
It's a question of whether the senior officer has the discretion to say, for instance, “I've looked at the circumstance. The traveller has come to me.” There must be some logic to the law that says the traveller can come to the senior officer, and the senior officer should be able to say, “I don't think this is necessary. This is an invasive operation. Yes, you may be authorized, junior officer, but I don't think this strip search is necessary in order to conduct a pre-clearance.”
It doesn't continue to that stage.
5:45 p.m.
Liberal
The Chair Liberal Rob Oliphant
Are there any other questions or comments on Green Party amendment PV-3?
(Amendment negatived [See Minutes of Proceedings])
(Clause 25 agreed to)
(On clause 26)
There is an amendment from the NDP.
On amendment NDP-4, Mr. Dubé.
5:50 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Chair, once again, this is just bringing the language in line with regard to the respect given to the rights of transgendered Canadians, and making sure that the appropriate wording is there. These words, especially in the law, do matter. This brings us in line with the respect that we purport to have in this day and age for our fellow Canadians who are transgendered.
5:50 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I will ask the officials about this one.
Are there other acts that include the word “sex” as opposed to “gender” that would mean that we need to use “sex” in this as opposed to “gender?” I also understand that there was a Supreme Court decision with regard to the gender or the sex of the person conducting the search.
5:50 p.m.
Counsel, Department of Justice
Thank you.
Yes, for this provision, the language of “sex” is consistent with similar authorities found in the Customs Act to conduct searches. That is in section 98 of the Customs Act. In both cases, the language of “sex” must be interpreted in a purposive and contextual manner that both recognizes and respects gender identity and expression.
5:50 p.m.
Counsel, Department of Justice
Yes. The language with regard to a search by an officer “of the same sex” is in the Customs Act, at section 98.
5:50 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
I support the amendment. I think the Conservatives do. The language is more modern and inclusive. Certainly if and when Bill C-15 gets passed by Parliament and is brought into law, this kind of review will be going on automatically with all legislation. To get ahead of the curve, I think it would be appropriate.
5:50 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Chair, let me just say that these amendments in particular have a certain resonance, given the provisions that would allow American agents—understanding, again, that these cases we would hope would be rare—to do the strip searches. I certainly have confidence in Canadian officers, but I am not quite sure that the comportment of American officers is up to the standard we would expect in terms of the treatment that transgendered Canadians should get. I think that makes this all the more important.
I understand the jurisprudence, but I would echo Mr. Clement in saying that we might as well start now in using more modern language, as was well stated.