Public Safety Committee on Oct. 24th, 2017

[Solomon Wong, Executive Board Member, Canadian/American Border Trade Alliance]

Thank you very much to the chair for the opportunity to present remarks on Bill C-21, which we believe is a fundamental cornerstone to the automated and more efficient way borders are managed for Canada.

As you mentioned, I'm an executive board member of the Canadian/American Border Trade Alliance. It's a group that has celebrated its 25th anniversary this year as a binational grassroots organization representing a number of public and private sector organizations. They're involved in Canadian and American trade, border crossing, transportation, tourism, airports, and bridge operators, among others.

As a voluntary board member for Can/Am BTA, I should also add that I have professionally worked for 20 years in all forms of border management between the U.S. and Canada, with my firm InterVISTAS consulting, specializing in different kinds of movements. Some members of the committee have seen my past work as the independent reviewer of the current pre-clearance act that was tabled in the House of Commons. I've also looked at the root causes of border delay, and that pertains to both goods movement and people movements.

The Canadian/American Border Trade Alliance is in full support of the provisions of Bill C-21, in terms of being able to have exit information that is recorded when individuals leave the country. As many have already testified before this committee, the intent of being able to expand the current capabilities that have been deployed since 2013 to provide information on Canadian citizens to support a range of different objectives on a restricted basis is that this biographic information on Canadians is going to be important to be able to close the loop in terms of the set of entries and exits from Canada. As we have seen in reports from the operating agencies, some 20 million records have already been looked at so far.

In granting new powers to government to be able to perform these kinds of activities, we always look at this in three ways. First, will this capability provide the ability for governments to better manage our borders, particularly the perimeter around the U.S. and Canada? Second, are there opportunities for efficiencies to be created to allow folks working for CBSA and IRCC to do more with what they currently have as resources? Third, from the Can/Am Border Trade Alliance perspective, are there opportunities to facilitate trade and travel?

Growth is continuing, particularly for international visitors and air travel, over 5% per annum over the next 20 years, as forecasted. In terms of being able to provide the capability for Canada to take the recommendations of groups such as ICAO, the International Civil Aviation Organization, in terms of recommended practices, certainly these are opportunities that are available for the Government of Canada to pursue facilitated efficiencies.

Imagine the age-old question that you face when you cross the border as to how long you have been away, and the amount of work to manually swipe passports and look at that particular question, and converting that to more productive types of questions, to be able to look at the kinds of people going across the borders.

As mentioned by other witnesses to the committee, Canada is not the first country to look at this. There are lessons to be learned from other countries that have sought to implement exit immigration data. I'll cite a couple of them.

In addition to the United States, recently the United Kingdom implemented the border systems program, which took effect in mid-2015. That represented a 20-year shift in the U.K. in terms of the way exit information is looked at. Prior to 1994, that was done through an exit booth when leaving the U.K. On departure, you would actually see an immigration person. As in a number of countries around the world, that was the mechanism. However, over the period of time of automating that capability and into mid-2015, the U.K. Home Office worked very closely with different port operators and airlines to be able to implement this. It very well might be a model to look at the provisions of implementing exit and entry from the Beyond the Border action plan. The issues were fairly limited.

Contrasting this was the move this past summer in the EU in putting forward a set of regulations in response to a number of attacks, in Paris and Brussels namely, and being able to have states in the Schengen area required to provide tracking of entry and exit information. In this case, the deployment was horrible by all accounts. Between May and June 2017, the number of delays was 97% greater than in 2016. In a number of countries, France and Spain namely, the delays in border formalities in August 2017 could reach up to two hours.

That is not the model to pursue because the ability to systematically and cohesively deploy this, as we have seen since the 2013 decision to provide a test of exit data, is certainly something that we've seen here in the experience to date. Granted, scaling this upwards is a different challenge, and certainly we're confident the agencies looking at this will have the ability to keep an eye on the ball to make sure delays aren't in place.

Interestingly, the world leader in this area, Australia, pioneered the approaches in the 1990s for advanced passenger processing. One of the first countries to fully automate the data in looking at arrivals, in April 2016, Australia moved ahead with what they called outward advanced passenger processing. This itself provided a similar capability to be able to have exit data put in place. Based on a long history of working collaboratively with the airlines toward implementation, that went fairly smoothly. I will also add that in my earlier remarks about finding facilitation benefits, Australia has a broader vision into the future. Its 2015 seamless traveller initiative has as its viewpoint being able to facilitate over 90% of travellers without stopping at a booth.

At Can/Am BTA we look at these examples and we applaud this. Where do we go from here? We would suggest three things to this committee to be looked at.

Number one is making sure that the border technologies being deployed are compatible with the powers that are provided in C-21. Although C-21 is limited to documents for outbound international travel or data coming in from CBP, we see a number of countries like Australia and the United States moving very rapidly toward biometric entry systems in addition to exit. While that's not the scope of C-21, it is certainly a progression and future that needs to be evaluated.

Number two, the passports that Canada uses do not have that ability for quick reading. Namely, the advantages of secure vicinity RFID is a technology available at a number of border crossings and that needs to be expanded greatly into the document itself.

Number three, and I can expand on this during questions from the committee, while ensuring that privacy is protected in terms of data, there are opportunities with the new Canadian centre on transportation data to be able to look at what this data source could help with on an anonymized basis. I reside in Vancouver, where there is a growing Vancouver-Victoria-Seattle tourism triangle. The ability to understand exits and departures much like cruise ships from Halifax and leaving by air for the United States, that source of information is currently a bit grey. There are opportunities other than this one that could provide advantages to both industry and government to understand those patterns of travel.

I look forward to questions from the committee.

[The Chair, Liberal, John McKay]

Thank you, Mr. Wong and Ms. Bhandari.

Ms. Damoff, you have seven minutes, please.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you to both our witnesses for being here today and providing testimony.

Ms. Bhandari, you spoke a lot about social media information at the border. I wanted to clarify that our legislation that we're looking at right now does not deal with social media. Obviously we don't have the ability to amend U.S. legislation. I want to clarify that we're strictly looking at a page on our passport with biographical information. I think you probably were aware of that. Was that more for information purposes?

[Esha Bhandari]

That was for informational purposes, but also to just inform the committee that if there's any scope for recording the answers to questions that are given on exit, this might be relevant to limiting the scope of questions that would be retained.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

As you probably know, our government puts a lot of importance on ensuring the safety and security of our citizens while also preserving their fundamental rights, which are protected in our human rights legislation, including the Charter of Rights and Freedoms.

We recently had the Canadian Civil Liberties Association testify. These are their recommendations:

[It would be appropriate to include] an amendment to add a preamble similar to that...in the recent national security legislation, Bill C-59, and similar to that...in section 3 of the Immigration and Refugee Protection Act...both of [which] explicitly identify the responsibility of customs enforcement officers to carry out their responsibilities in a manner that safeguards the rights and freedoms of Canadians and that respects the Charter of Rights and Freedoms.

All of our legislation obviously is governed by the charter. Do you see a benefit to adding a preamble to this legislation, as per their suggestion?

[Esha Bhandari]

I want to clarify that as a representative of the ACLU, I'm not taking a position on Bill C-21 itself. I hope my testimony is helpful to the committee, but I don't feel qualified to opine on either the bill as a whole or particular amendments.

The question goes to the risk of racial profiling or other types of profiling in the enforcement of the bill. My understanding is that this involves information sharing as well, meaning that information collected by Customs and Border Protection on the U.S. side would be shared with the Canadian government and vice versa. It is relevant, again, to consider whether, if information is being collected on the U.S. side of the border, including responses to questions from travellers who are exiting, there is a risk of racial profiling.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

It doesn't fall within our ability to regulate what happens in the U.S., or any legislation in the U.S., right? Sorry to cut you off, but my time is limited.

I'm going to turn to Mr. Wong for a moment.

Could you explain to us how the provisions of this bill would enhance cross-border trade and business between Canada and the U.S.?

[Solomon Wong]

Primarily, in looking at the powers themselves, in and of itself it's a cornerstone. How CBSA and to some extent IRCC choose to implement and use the provisions is where there are opportunities for facilitation. In the example I cited earlier, when Canadian citizens are coming back into the country and are asked how long they have been away, even though that's seconds in terms of the interaction, the ability to speed that up could create efficiencies in terms of the interaction between a CBSA border service officer and somebody coming into the country.

It would also give more opportunities to deal with potential issues as opposed to day-to-day questions of how long you have been away, which are really rooted in what we have had in the past in terms of the duties and taxes paid on goods. Since the limits have been elevated so much in successive governments, that really isn't as high a priority. Being able to find those kinds of things that could improve the process is what we see as the opportunity in Bill C-21.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I'm going to give the remaining time I have to my colleague Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you to both of you for testifying.

Implicit, Ms. Bhandari, in your presentation is the idea that Canadians should be concerned about their electronic media being seized at the border upon entering the United States.

I've read articles that you have put forward with colleagues, citing figures about the amount of electronic media that is being seized. But even in 2016 when there was a significant increase in the number of electronic media that was searched by U.S. border officials, this still amounted to a very miniscule number. In fact, it amounted to less than 1/100th of 1% of all international arrivals, or 0.0061% of total arrivals to the United States had their electronic media searched.

If we look at the Canadian figures on that—and I don't have them—it's a much smaller number than 0.0061%. I think it's important to put things into context, but I do want to give you an opportunity to reply to that because I don't think it's an insignificant issue. You raise a legitimate concern, although it doesn't relate to the substance of Bill C-21. It's something we should be aware of, but we're talking about a very small number of seizures here.

[Esha Bhandari]

That's correct. We certainly know that percentage-wise it's a very small percentage of travellers who at the moment have their devices seized.

I think there are two concerns that animate our position. One, of course, is the domestic constitutional concern, which is not relevant to the committee in the same way. The other is a risk of selective searches. For example, we have seen cases of racial or religious profiling in the people who are singled out for device searches. We've also had at least one incident of a Canadian journalist, for example, being singled out at the border, and certainly press freedom associations here, and their counterparts in other countries, are concerned about the freedom to travel of journalists and others.

The concern even with the small percentage is that even when there's no protection or limitation, the searches can target individuals on impermissible bases, and that can really have an effect on freedom of movement and freedom of speech.

[The Chair, Liberal, John McKay]

Thank you, Ms. Damoff and Mr. Fragiskatos.

Just to remind both members and witnesses that questions and answers are to be directed through the chair.

I know Mr. Motz knows that perfectly well. You have seven minutes, please.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair, and to the witnesses for testifying today.

Through the chair, I will go to Mr. Wong first.

In a letter to several ministers in the spring of this year, the Canadian/American Border Trade Alliance and other business groups highlighted some areas of concern, one being the staffing shortfalls at the border crossing in the ports.

We've heard from witnesses in lead-up to today on this bill that, of course, we know this bill will include some new tasks for CBSA to carry out, and further resources will need to be allocated to CBSA in order to play out all of the requirements of this bill and to ensure that there's continued operation and smooth transition of both people and goods back and forth.

Apart from the potential border thickening that we've heard about, are there any other concerns you would like to highlight on the part of the businesses you represent regarding the continued free flow of goods back and forth between Canada and the U.S. once this bill takes effect?

[Solomon Wong]

I think very much, Mr. Chair, in terms of looking at opportunities for resourcing as well as what it is that border agencies as well as government as a whole need to be able to deal with big data.... This is, in essence, a large dataset that requires specified skills to be able to analyze, disseminate, as well as potentially act upon. On the kinds of interactions needed, I think numbers are one thing, but the skill set to be able to avoid false positives, meaning errant analysis of information, as well as potentially looking at ways to speed up the process are some things that would be looked at operationally as far as being able to get to the benefits of having powers under Bill C-21 is concerned.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

In addition to that, then, obviously you and your group would be in favour of investments at ports and border crossings, better hours—so expansion of CBSA times, because not all border crossings are 24-7 in Canada—and the use of new technologies to leverage this bill most appropriately.

[Solomon Wong]

Yes. Through the chair, that is something we would like to see in addition to a level of service that is easily understood in terms of trade. That goes to everything from wait times going across an airport, port, or land border to being able to make sure that, as our businesses become more 24-7, 365, there are ways to get to more services and availability.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

I will now direct a couple of questions to you, Ms. Bhandari.

Recently there was a failed U.S. refugee able to enter Canada and later carry out a terrorism-related act in Edmonton on a police officer as well as on some innocent civilian bystanders. Would you see any issue with Canada requesting information from the U.S. about other refugee applicants who cross the border?

[Esha Bhandari]

I'm sorry, could you clarify something? Requesting information as part of a law enforcement activity—is that the question?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I mean a law enforcement activity or obviously, CBSA, border security, or national security interests.

[Esha Bhandari]

I'm not qualified to speak about the information sharing arrangements that the Canadian government has with the U.S. government, so I can't speak to what the bounds of those information sharing agreements are.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Fair enough.

The CCLA and your organization have stated that there needs to be a limited time for which information is kept. However, when we need to retroactively look back on a case such as the Edmonton incident, having more information helps investigators piece together travel plans, potentially identifying similar plans, or potential acts elsewhere. Would you see it as a reasonable limitation to keep information with some strict timelines around how it's accessed and by whom?

[Esha Bhandari]

I can speak to that. As I mentioned, I think the default currently is 75 years for information retained by the U.S. government. I think that does raise privacy concerns when travel histories and travel information of individuals is retained for such a long period of time. Certainly it then becomes open and available in a way that information would never previously have been available to law enforcement or any other agencies. These have privacy concerns, and I don't think that the idea of limiting retention beyond the current default of 75 years wouldn't adequately outweigh law enforcement concerns. I think the overarching concern that groups such as the CCLA and the ACLU have is that this long-term retention of biographical information and all kinds of data represents a database that is vulnerable to both dissemination and use, and that really its existence can lead to privacy harms.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Is it possible to achieve the same goals with limits on access rather than on retention?

[Esha Bhandari]

I think limits on access are an important tool. I think they don't fully address the retention question, because, as I mentioned, there can be privacy harms when data and information about individuals is retained essentially indefinitely for potential future law enforcement needs decades down the road. But I think limits on access are crucial, and particularly any limit that the Canadian government might negotiate with the U.S. government with regard to how information is shared within the U.S. government or even shared outside of government agencies, so with members of the public, for example.

[The Chair, Liberal, John McKay]

Mr. Dubé, go ahead for seven minutes, please.