Mr. Speaker, I am pleased to offer some thoughts on Bill S-2, which originated in the Senate.
The bill would amend the Customs Act, clarify certain provisions and make technical amendments to others. It would also impose additional requirements in customs' controlled areas, amend provisions respecting the determination of value for duty and modify advanced commercial reporting requirements. The bill provides that regulations may incorporate materials by reference.
It is interesting to see how the debate has gone on. It started off with a member of the official opposition spending a bit of time dealing with the potential implications of border areas on the economy of Canada and a little review of the current economic climate and the financial position of the country right now, which members are concerned about, whether it be with regard to the size of deficits, the level of unemployment, the international difficulties, bailouts and the like.
Having allowed that discussion to take place for some 10 minutes provided a great opportunity to open up the entire debate to talk about the finances of the nation, but the bill is not about that. It is tangentially involved.
There was also an intervention by the parliamentary secretary, who gave us a little lesson about the Canada Border Services Agency. It is helpful for the public to understand that this agency has some responsibilities and they are very serious and onerous.
What caught my attention about the bill is the whole area of the regulatory environment and the expansion of the regulatory reach, which is being enabled by Bill S-2.
I was curious at the outset as to why the bill, which was introduced in the House in the last Parliament, was this time put through the Senate. I will be the first to admit that Senate committees do better work than House of Commons committees for no other reason than their members do not have constituency responsibilities as well as some of the political responsibilities of members of Parliament. Senators are not spread as thin and they can look at bills carefully, and I noted a couple of items senators raised.
The bill passed in the Senate on April 23, about a month ago. It received a quick second reading here and went to committee where it stayed for one day. To me, second reading of bills is an opportunity for a few members to participate in a debate and to talk about their views or about their knowledge, but without having the knowledge of any witnesses or experts to find out exactly what the stakeholders have to say about charter implications or privacy implications. Did the Privacy Commissioner appear? What do airport authorities have to say about this? How do they feel about the changes that are being proposed to the Customs Act?
There is a major implication in Bill S-2 with respect to the way the Customs Act operates and the latitude that people will have. It touches very closely on charter rights, on personal information and electronic documents and on the facilitation of trade activity across our border. Bill S-2 touches on a lot of things, but committee had only one day to discuss it.
The committee met on May 26 and it reported today.
That raises the question about why the committee did not look more carefully at some of the substantive questions that have come up. I do not know why there were not the kinds of witnesses that would be necessary to expose risk areas. The previous speaker was a member of the committee, and I asked him a simple question: What is the definition of a customs controlled area? He was not aware. That definition is in the current Customs Act. I do not happen to have it with me.
There was a speech given earlier this day by a member who mused about whether or not a customs controlled area would include an airport parking lot, or certain other areas as opposed to what we would normally consider to be the customs area, where there are officers and people would be taken to be asked questions. Another question had to do with duty free shops which are customs controlled areas. Duty free shops are in the main part of an airport where the public is going.
This is sloppy. I hate to say it, but this is a sloppy approach to a bill that may have some consequences. When I rose to ask a question earlier, I asked about an area that I spent a lot of time on. It has to do with regulations. I am still not aware of the discussions and I have not had an opportunity to look at the discussions at Senate committee. There is a new section being added to the Customs Act, new section 164.1(1), which states:
A regulation made under this Act may incorporate by reference any material regardless of its source and either as it exists on a particular date or as amended from time to time.
Leaving out the time element, it says very simply that the regulation may incorporate any material regardless of its source. I was astounded when I read that. There are no restrictions. A regulation can incorporate anything. Why would a document be incorporated by reference? Take the example of legislation regarding a tax credit for people who buy tools. There may be an incorporation of the Income Tax Act by reference so that if people wanted to see the kinds of tools that would qualify, they could refer to that document. There is more detail. It is for clarification.
This new section that will go into the Customs Act says “any” document. From a lay perspective, I guess people would say that if there is a piece of legislation called the Customs Act, they can read it and see what the powers are. They can go to the regulations and see those. Members will know that we do not see the regulations on any act until after we have passed the legislation and it has received royal assent. Regulations are made by order-in-council.
This new section goes on to say that those regulations that we do not see until after we have given royal assent to a bill can incorporate by reference any other material. How is a stakeholder or interested party to understand the substantive point of a clause of a bill or an act like the Customs Act without seeing the regulations if they need some clarification? Now it has this other element of incorporation by reference of any other material.
If people are wondering whether or not they are going to be in compliance with the law, they are now almost forced to go to the regulation to see what documents or materials are incorporated by reference and then they are going to have to find those materials to see whether it is in context.
This is a very strange addition. I understand that the matter came up at the Senate committee. There were concerns raised. Here we are at third reading and I have heard a couple of speakers also raise some concerns. There are still outstanding questions about what constitutes a customs controlled area. This problem of the incorporation of any other materials that they want is still a concern. Are there still concerns about privacy? Are there still concerns about charter rights of individuals? Are there concerns about the impact of the authority that is going to be expanded and passed on to customs officers that may have some impact on the flow not only of goods and materials, but also of people? This is part of the economic equation.
Here we are at third reading. We still have questions. The House is not quite sure whether or not a customs controlled area includes the parking lot of an airport. The Greater Toronto Airport Authority has opined on this. It supports the bill. The GTAA supports the bill and feels that it will provide border services officers with the flexibility, and I stress flexibility, to examine goods and question and search people anywhere within customs controlled areas. Under the current Customs Act, the Canada Border Services Agency is only able to exercise this authority at exit points.
It is kind of broad. The Canadian Airports Council also is supportive and indicates that when it was first introduced, trade lawyers expressed concern with parts of the Bill S-2 that it might allow the government to pass regulations regarding what information or advanced data elements would need to be provided by exporters prior to the arrival of goods into Canada without much consultation. The council is concerned also with the extent of the information that will be required and how the requirements to gather and provide the information will affect exporters' trade with Canada.
This is very, very significant. The response of the GTAA and of the Canadian Airports Council about how this is going to impact the flow of people, the flow of goods. The bureaucratic requirement now is almost open-ended. It is almost as if all of a sudden those who have goods or services or other trade matters which come through border areas, or people, may now be exposed to a whole bunch of onerous requirements.
It raises the spectre I have asked businesses on many occasions. What can we do so that they can do more business and be more successful? Time and time again, they want us to reduce the bureaucratic involvement, the paper requirements, the disclosure requirements, the forms, the reporting. All of these things are very important, but the bill opens it wide where advance reporting requirements may bog the system down. It is going to have some implications.
This morning I was at the meeting of the Standing Joint Committee on the Scrutiny of Regulations. It is one of the least known committees in Parliament, but it has an important responsibility.
As I indicated earlier, when a bill comes before us, the House deals with it at second reading. It goes to committee. It comes back, perhaps with report stage amendments. We have third reading debate and a vote. When it passes here, it goes to the Senate and basically goes through the same process.
If a bill indicates that the minister may make regulations in certain areas, and this bill does, members of both houses have debated and discussed all their concerns without seeing the regulations. There is legislation that was given royal assent four years ago which still has not got the regulations in place. Many of the clauses in that particular bill are still not enforced because it is waiting for regulations.
It is so bad that a Senate private member's bill actually passed in this place which says that if a bill does not get royal assent or items are not proclaimed and enacted within 10 years, they will sunset. They will die. It happens; that is the reality.
Now we have a situation in this bill where the regulations are expanding the horizons by permitting incorporation of materials, any material, by reference. It will make it more difficult for people to understand what the law really says. It is the responsibility of the Standing Joint Committee on the Scrutiny of Regulations to be vigilant and to look at the regulations as they are gazetted to make sure that those regulations clarify or provide the additional information so that people understand what the clauses in the bill say.
There can be no regulations that are not enabled by the legislation. The legislation itself must have clauses that say that the minister can make a regulation to amplify or clarify the details. For instance, if there is a tax credit for tools, in the regulations there might be a list of the kinds of tools that would be eligible for a tax credit. That would be an example of a regulation doing what it should.
What has been happening for a long time is something called backdoor legislation. It is in fact putting into regulations intent or activities which have not been specifically enabled in the legislation. It means that the House of Commons and the Senate can do all their work, but once the bill passes and it gets royal assent, it then goes into the hands of cabinet. It is cabinet that does the regulations. Those regulations start to creep and have a broader implication to the bill. If we look at the regulations, our understanding of what the clause in the bill actually says may be different. It should not be. It should be the other way around. There should be no surprises in regulations.
I have some grave concerns about this. I do not think there is anything I can do about it. I will say that the potential implications concern me. It concerns me that the committee seems to have given it fairly short shrift. That is problematic. There are potentially some sweeping implications of this. There have been some assurances given with regard to the charter issues and privacy issues. I would have had a greater comfort level if the representatives from the Office of the Privacy Commissioner had been there to give their view to the committee about the privacy considerations, because if a customs controlled area is much broader than we think it is, the public could be subjected to questions on any matter that someone has a reasonable suspicion to think might affect the Customs Act.
