Mr. Speaker, I would like to start my remarks by pointing out as well that the number of this bill is S-22. People are not aware that most pieces of legislation we deal with are numbered C something, C and then a number, meaning that bill originated in the House of Commons. S-22 means that it originated in the Senate, in the other place, the unelected and as other members have pointed out, unaccountable other place.
It makes me wonder and it is mind boggling that if the government wanted to garner the Canadian public's interest and support for this bill why it would originate the bill in a place that only has the support of 5% of the population. Recent polling shows that a full 45% of the population wants to see the Senate radically reformed, the triple E model, elected, effective, et cetera. Another full 40% of Canadians want to see the Senate abolished altogether. They want to see it done away with. There are very few Canadians left who really like it the way it is. Probably the immediate families of senators are the only people left who think it is a really good idea.
If the government were serious about having people rally around Bill S-22, it should have been a bill with a C number. It should have originated in the House of Commons from elected representatives.
Speaking to the bill, the preclearance act was introduced in the Senate by the deputy leader of the government side in the Senate. The bill would provide U.S. federal inspection services with the appropriate statutory authority at designated areas in Canada to determine what people and what goods would be allowed entry into the United States.
Canada has allowed the U.S. federal inspection services to operate air passenger preclearance in Canada since the 1950s. This is not really anything new. It seeks to broaden and expand the preclearance situation in the airports.
The NDP caucus has serious reservations about Bill S-22. We recognize, as do members of the other parties who have spoken, that it is in the interests of Canadian travellers to be processed more quickly and to move more freely through the airports if it is only a simple trip to the United States, to our main trading partner. However we should point out a number of problems with the bill as it stands. Our caucus hopes to have the opportunity to move amendments which I will speak to later.
Bill S-22 represents a substantial intrusion on Canadian sovereignty. It gives officers of a foreign government the power to enforce foreign preclearance laws on Canadian soil. We believe that preclearance and intransit facilities can be legislated in a manner that is less intrusive, particularly for Canadian citizens and permanent residents.
We also have concerns about the legal implications of the bill. While some of our arguments were already addressed by amendments that have been made earlier, we still have some concerns as it is presently drafted. I would like to go through a few of those in the time I have.
The NDP remains of the view that it is possible to achieve our goals with a voluntary rather than a compulsory framework. Persons wishing to go to the U.S. could voluntarily submit themselves to examination and if necessary search. If they did not wish to undergo that kind of process, they could then withdraw their application to enter the U.S. and leave the preclearance area.
We do not believe it is necessary to create Canadian offences for resisting the enforcement of foreign laws on Canadian soil. As such we believe that clauses 33 and 34 should be removed and that clause 10 should be amended to clearly provide that right of withdrawal.
We also believe it is not necessary to grant preclearance officers the power to enforce U.S. laws on Canadian soil. In particular, we see no reason for granting the power to levy fines, seize property or to declare it forfeit as per U.S. law. Those in favour of the bill are arguing that the U.S. officers should have the same powers that they enjoy at land crossings where they are operating on American soil. In this case they would not be operating on American soil. We believe this is a major difference both legally and geographically.
If we grant these powers, they can result in enforcement of penalties or the forfeiture of goods in Canada for doing things which are not against the law under Canadian law. We are granting U.S. officers the right to enforce and penalize Canadians on our soil. We think this is a breach of Canadian sovereignty.
Under the use of force, we are very concerned about clause 12 which authorizes preclearance officers to use “as much force as is necessary” in order to effect their purposes. At the very least, this section should be modified to add the word “reasonably”. It is common in statutes of this type to use the term “reasonable force” and not give carte blanche to use as much force as is necessary. I know it is a fine legal point but it does give a lot of latitude to the enforcement officers.
These foreign officers would have the right to hold people and stop people from leaving. That is a fairly sweeping power to grant a foreign officer on our soil. It means they could detain people. If the officers think people are guilty of breaking a law in another country, they could be held, essentially arrested. We are granting foreigners powers on our soil which we do not think is necessary. This needs to be reviewed.
Under that article, clauses 10 and 22 of the bill need to be revised because they have a very low threshold for who can be detained. The NDP is very serious about that particular issue.
We submit that the test contained in clause 24 is preferable. There it has to be belief on reasonable grounds. Again it is a term that would stand up in court if it was tested and challenged. This is not present in clauses 10 and 22. At the very least, we want the same test that is given in clause 24, to be treated the same way in clauses 22 and 10.
On passenger information, there is a whole series of questions that people are asked when entering the country. A lot of it is very private information. What is done with that information? How long is it kept?
We have to keep in mind that we are giving this information to a foreign country, not to a Canadian official. We may not wish to have this private information spread around, personal information such as health records. We are told that this information will be quickly destroyed but we do not know when. We are not told how long this information is kept. Can this information be sold or are they bound to keep it private? We do not have any control over that. Privacy is becoming more and more of an issue.
The NDP remains firmly opposed to the creation of Canadian offences for resisting or misleading a foreign preclearance officer. We do not think it should be a Canadian offence to mislead a foreign officer about an issue entering a foreign country. I suppose they have every right once a person is in their country to charge them with offences, but why should it be a crime in Canada to knowingly mislead a foreign officer on our soil? These are things we have serious problems with. We want clauses 33 and 34 modified to point to those concerns.
It is not just the NDP caucus that has problems with this. The Canadian Bar Association made a presentation to the committee and coincidentally it pointed to many of the same clauses we want changed. The association wants clause 10, clause 12, clause 24, clause 28, clause 32(h) and clauses 33 and 34 amended, most of which I mentioned in my original concerns. This is the Canadian Bar Association, people who actually know something about this.
In the interests of trying to make travel more convenient for frequent travellers, like us and business people who travel a lot, we are ready to trample on Canadian sovereignty. Why? Where is the payback in this? The two things are of completely different weight.
We are willing to give foreign officers the right to penalize Canadians under Canadian law for telling them stories that are not true. Frankly, it opens up such a can of worms that it should be sent back to the other place for them to try again and take into consideration such basic things as national pride.
The other group which spoke out very strongly against the bill is the Canadian Civil Liberties Association. It wrote:
In our view, the bill should not empower the officials of any foreign state to detain Canadians against their will, in this country, simply for a suspected violation of foreign law.
As I understand it, I could be arrested by a foreigner in my country because he thinks maybe I did something wrong in misleading by giving false information. If he thinks I might have some illegal substance on me he is allowed to strip search me, do all those things and hold me there against my will. In any event, that is one of their problems. The Canadian Civil Liberties Association went on to say:
Thus, even if there are reasonable grounds to suspect that any Canadians seeking admission to the United States have lied about possessing goods that they may not lawfully take into the United States—Such Canadians should have a presumptive right to leave the preclearance area without travelling to the United States.
In other words, rather than be arrested because the officer thinks perhaps I have some contraband, I should at least be allowed to leave, to change my mind, “Okay, maybe I will not go to the U.S. If you are going to be so difficult about this, I will just leave”. That would not be allowed. They could hold me there against my will, detained, arrested by a foreign cop on our soil. That is what the Canadian Civil Liberties Association has a real problem with.
Another person who has a problem with Bill S-22 is our own Privacy Commissioner of Canada. He wrote a very strong letter. Mr. Bruce Phillips, Privacy Commissioner of Canada, wrote to the chair of the foreign affairs and international trade committee:
I am writing to express my concern regarding potential privacy issues relating to Bill S-22. ...one must not forget the fact that customs officers in the course of exercising their duties often collect vast amounts of personal information about travellers, sometimes of a highly sensitive nature. As such, I feel it is my duty to impress on the Committee the need to ensure that the privacy rights of the travelling public are adequately honoured and protected under this Bill.
He has serious reservations that they are being adequately honoured under this bill. Again, as I have pointed out, there is no real detail about how long that information can be held and in what way that information might be used. In this electronic age our information is at risk all the time. We dealt with that in a previous bill in the House about privacy, electronic information, selling of credit card numbers and no end of things.
Those are some of the reasons we cannot support Bill S-22. Starting with its place of origin, the other place, we disapprove of that wholeheartedly. We have made that clear. I predict, Mr. Speaker, you are going to hear that from all the members on this side of the House. The origin of the bill is our first problem with it.
A key problem is clauses 33 and 34. We do not believe it is necessary to create Canadian offences for resisting the enforcement of foreign laws on Canadian soil. Also, we would like to see amendments to clause 12 which authorizes the preclearance officers to use “as much force as is necessary” without even adding the word “reasonably” or if there are reasonable grounds to think that someone is doing something wrong.
There is a problem with clauses 10 and 22, holding people against their will. If I walk into that preclearance area and the U.S. customs official, the foreign officer, looks at me and says, “It looks to me like you are carrying some kind of contraband”, I cannot just turn around and walk out and say, “I have changed my mind, this is too much trouble. I think I will go home”. The foreign officer can arrest me and detain me. We certainly want that amended.
Foreign officers can arrest for any number of reasons. I just used contraband as one example. They might think I am carrying an exotic plant, a parakeet, or whatever I might have up my sleeve.
We want to know how long they are allowed to keep this private information and what they intend to do with it. We need that section amended. As well, we remain firmly opposed to the creation of Canadian offences for resisting or misleading a foreign preclearance officer. I have summarized that one already. Unless we see serious amendments to the bill we cannot vote for it.