Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 28 - Evidence
OTTAWA, Wednesday, February 17, 1999
The Standing Senate Committee on Foreign Affairs, to which was referred Bill S-22, authorizing the United States to preclear travellers and goods in Canada for entry into the United States for the purposes of customs, immigration, public health, food inspection and plant and animal health, met this day at 3:30 p.m. to give consideration to the bill.
Senator John B. Stewart (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we meet today pursuant to an order of the house. We are considering Bill S-22.
I will ask our lead witness to introduce his colleagues and to make any introductory statement that he wishes to make.
Mr. David Preston, Director, U.S. Transboundary Division, Department of Foreign Affairs and International Trade: Mr. Chairman, I have been the chief negotiator of a variety of preclearance issues with the United States, including the negotiations that led to this proposed legislation as part of a bigger piece, and I should like to speak to that bigger piece in just a moment. On my left is Susan Gardiner, who is my deputy and has been involved directly in the negotiations, assuming parts of it herself. I have with me as well two people from our legal team. We had, I believe, up 20 lawyers involved in the exercise, in the preparation of the negotiations with the United States and the preparation of the legislation. Jacqueline Caron is on my right and David Harris is on my left. In addition, I also have with me Neil MacIntosh, a member of our staff who has been working with us on preclearance.
I thought, with your indulgence, that I would give a little background as to why this legislation has been introduced into the Senate. We have had preclearance in Canada since the 1950s, starting with Toronto. We have had a preclearance agreement with the United States since 1974. There are now seven preclearance sites in Canada: in Vancouver, Edmonton, Calgary, Winnipeg, Toronto, Ottawa, and Montreal. In 1985, on the occasion of the introduction of Open Skies, a process of discussions with the United States was launched regarding what that might mean in terms of preclearance in Canada. That led to the intransit preclearance project, which I will describe in a moment. We began negotiations in 1985. In 1986, we opened preclearance in Ottawa, the seventh site.
In 1997, following negotiations with the Americans, we introduced a novel project in Vancouver that allowed passengers who were in transit through Vancouver airport to go directly to U.S. customs. Formerly, they had to go through Canadian customs first, which was in a sense redundant because they were not entering Canada, they were going on to the United States. The idea was to have one-stop clearance for them.
This led to and was part of a much broader discussion and negotiation with the Americans about the nature of the authorities of their officers in Canadian preclearance sites. The Americans were concerned that those authorities be set out, because once they were the only stop for intransit passengers en route into the United States, they wanted to understand clearly what their authorities were in Canada in the preclearance sites.
Since 1995, the number of passengers going through preclearance has risen by 37 per cent. That is a total of 8.5 million people per year, so we needed to make sure that we had an expeditious and clear process by which they would be handled.
We also had in mind, as we looked at this legislation, the fact that the preclearance arrangements of the 1950s and 1970s were made prior to the passage of the Canadian Charter of Rights and Freedoms, which, of course, provides specific rights to Canadians and imposes specific obligations. We wanted to take those rights and obligations into account in the context of looking at U.S. preclearance authorities.
We also considered that this would open the opportunity for us to introduce intransit preclearance in other Canadian airports beyond the Vancouver project. Passage of this legislation would open up the possibility that we might be able to do similar things with preclearance authorities at other sites. There are a number of proposals connected to ferry passage back and forth, for example, across the Detroit River. There are rail passengers who are processed in Canada. Air cargo is another example. Again, we need a definition of authorities for those U.S. preclearance officers clearing people into the United States.
There are a number of applications, such as our land borders on highways. The idea is you that might put the border post on one side of the border or the other and then have legislation that sets out the authorities of officers operating on the other country's soil.
We also had in mind that what we would do must be reciprocal. That is, whatever we got on the Canadian side must be reciprocal with the United States.
[Translation]
Changes have occurred in Canada's law and in border operations since 1974. The 1982 Charter of Rights and Freedoms has granted Canadians new individual rights. Border processing of persons and goods has evolved as a result of the rapid increase in border crossings and the adoption of new technology.
[English]
Our objective was to legislate clear authorities for the Americans, as I have described. Those authorities, in terms of this negotiation, are limited to the admission of travellers and the importation of goods to the United States. The laws at play here are customs, immigration, public health, and plant and animal health. The idea would be to allow U.S. officers to apply those laws related to the admissibility of goods and people into the United States.
As part of the package, we wanted to ensure not only that the Canadian Charter of Rights and Freedoms would apply, but that basic Canadian law other than this law relating to admissibility would also apply to the regime.
Incidentally, the package that we negotiated with the Americans had two other components, one of which was that Montreal and Toronto, in addition to Vancouver, would become a permanent intransit operations and would be eligible for intransit preclearance this year or whenever the legislation is passed. Calgary would be eligible in 2001 and Edmonton, Ottawa and Winnipeg would be eligible after 2001.
The other provision that we negotiated with the U.S. was that we would provide a Canadian police presence in the preclearance area of those airports. We designed that in part to be a symbol of Canadian sovereignty and of the underlying basis of this project -- that is, having Canadian law apply -- and, of course, the Canadian police officers would be there to enforce Canadian law, in particular criminal law, in circumstances when it might be necessary. I might add that they are there to ensure that the operation is working according to the framework that we have outlined, including this preclearance legislation.
The Americans agreed that the arrangements would be reciprocal.
The bill, as we have it, is a new piece of legislation that combines both U.S. and Canadian law within the context of Canadian law. It is modelled on existing preclearance schemes in Europe and most closely resembles a Swiss-French model of how to apply customs and immigration law on a foreign territory.
The bill draws heavily on our own Customs Act, and the provisions in the bill are intended to reflect Canadian jurisprudence, specifically to be in accordance with the Supreme Court's decision in the matter of R. v. Simmons on border control processing. We took those elements into account as we designed this draft legislation.
The bill, then, contains the various provisions that are designed to ensure the supremacy of Canadian law, ensuring that, in the case of a conflict of laws, Canadian law will override U.S. law. It certainly provides, as I mentioned earlier, that the Canadian Charter of Rights and Freedoms applies, and that relates to such matters as right of counsel.
You may be aware that under U.S. law, you do not have the same rights in a U.S. airport that we are asking the Americans to respect in Canadian airports. They may detain people for longer, and there is no requirement under American law for a customs officer to refer someone to legal counsel. In this arrangement, we have insisted that in the event of someone being detained that person would have the right to be referred to counsel. I use this as an example of how we have applied Canadian law.
The bill is intended to prohibit the enforcement of U.S. criminal law. We told the Americans in the negotiations that any criminal law that applied in the course of processing for entry into the United States would necessarily be Canadian criminal law.
Those laws would apply only in the preclearance areas. In other words, they do not apply generally in an airport. They apply in certain defined areas known as the preclearance area, which would be designated by the Minister of Transport in consultation with the Minister of Foreign Affairs and International Trade.
As I mentioned earlier, Canadian police officers would be located at the airports to maintain Canadian law.
The main duties of a traveller in a preclearance area would be, in effect --
[Translation]
-- to report to a preclearance officer, report their goods, show their goods and answer all questions truthfully.
[English]
The traveller, incidentally, is not obliged to answer any questions that are put to him by U.S. preclearance officers but, of course, the consequence of that is that he may not be allowed into the United States. The United States has, as we do through our own customs and immigration processing, the right to refuse entry. That is their ultimate sanction against anyone that they do not want in their country.
An important provision is that a Canadian traveller, particularly a Canadian-origin traveller, would have the right under this scheme to leave the preclearance area even up to the point where he had done what we call the reporting relationship, which is handing over his documents for entry into the United States. He would still be entitled to turn around and walk out of the area and decide he was not going into the United States. However, that would apply only if, in the meantime, he had not infringed any of the provisions in the bill and, most important, had not made a false declaration to the officer. I will explain the consequences of that in just a moment.
The U.S. officers would be given the authority to conduct a pat-down frisk search, primarily in the event that there was a security emergency. They would be authorized to pat down a person to see whether he or she possessed, for example, a weapon. They would not be allowed to conduct strip searches on Canadian soil. Any strip searches would be turned over to Canadian officers in the same way that anything smelling like a criminal offence would also be turned over to Canadian authorities. That includes possession of drugs. In cases where there was evidence that a person was carrying drugs, for example, that person would be turned over to a Canadian officer who would make the decision as to whether or not that person would be prosecuted.
The preclearance officer's authority would relate to customs, immigration, public health, food inspection, and plant and animal health. He could also order travellers who are in the preclearance area to either report to him or leave the area. That was designed to address American concern about people loitering in the area. It is a means of saying that people have to declare themselves as going on to the United States or they have to go back.
Previously, officers were certainly entitled to inspect goods, but under this bill they may examine, detain and seize goods that may then be subject to forfeiture. They may assess monetary penalties, which in our terms is a civil fine, that result from offences under American customs and immigration law.
There is also in the bill a requirement that air transportation companies provide specified information about passengers passing through Canada to the United States. That is in the event that the passenger wishes to use the intransit facilities. They must provide this information in advance. It is only for intransit passengers, not for Canadian-origin passengers.
The bill, as I mentioned earlier, makes provision for reciprocity. Certain immunities are provided to the U.S. officers as long as they are acting in accordance with their duties, in accordance with their scope of work defined within the law. Those same immunities will apply to Canadian officers when we open up preclearance operations in the United States.
That is what is proposed here. It will accentuate the benefits that we have under preclearance. When you preclear into the United States, it means that you are able to go directly to a domestic terminal in the United States. It means, as I am sure all honourable senators have experienced, much closer connections. You do not have to go through immigration on arrival and then go to another terminal to catch a connecting flight. It means that you can arrive at a domestic terminal, walk down the hall and catch another flight. It provides much quicker connection times. It means, in fact, that you can arrive at an airport in the United States that does not have immigration facilities because you can go directly in. That opens up the scope and is certainly in the spirit of Open Skies.
The intransit preclearance, which is the one-stop arrangement, benefits the Canadian air industry by levelling the playing field with the United States. For example, if you are flying from Asia into the United States and you arrive directly at a Canadian hub and then go on to somewhere in the United States, you only have to go through customs and immigration once. In the old scheme, if you were going to the same location in the United States but going through Vancouver, you had to go through Canadian customs and immigration and then through U.S. customs and immigration.
Vancouver, where we opened the pilot project, has been the first airport to benefit from this. It has had substantial success in attracting passengers to go routing through there. When we have this scheme in other airports, it will allow the same one-stop coverage and thus make these Canadians hubs just like U.S. hubs and, as I say, it will level the playing field.
That essentially describes the legislation. I hope that has been helpful.
The Chairman: Thank you. I have one preliminary question that does not deal with the clauses of the proposed act. Roughly how many intransit passengers each year are we talking about?
Mr. Preston: The question is very appropriate. There were 8.5 million people who went through preclearance. In the Vancouver project, if I recall correctly, there were 70,000 intransit passengers in the course of the first 12 months.
The Chairman: Am I correct in thinking that in coming from, let us say, northern Europe, there would be an advantage to flying to Montreal or Toronto, just in terms of distance?
Mr. Preston: Yes.
The Chairman: From that viewpoint, we would be building on a natural advantage.
Mr. Preston: Exactly. If I remember correctly, it is four and a half hours less flying time to fly through Vancouver than to fly through Los Angeles because of the polar route from Asia.
Senator De Bané: I must confess that while I do see the advantages of such a law, some provisions in the bill are frightening. Have you thought of putting up a sign indicating in a few words the rights of citizens in the presence of that officer?
Mr. Preston: That is a very apt observation. The answer to that is an unqualified yes. The intention would be to put signage at the entrance to the preclearance area. The sign would define what rights and obligations the traveller has upon entering the area.
Senator De Bané: Is it absolutely necessary to have that clause that says that he can ask the person to undress? It states that the person to be searched will be searched by a person of the same sex, even if that person is not an officer. Is that acceptable to us?
Mr. Preston: It is Canadian practice. Canadian customs and immigration has the authority to ask a person of the same sex to conduct a search regardless of whether that person is a customs officer or not.
Senator De Bané: But is that sufficient?
Mr. Preston: The difficulty arises in small ports. We are talking across the border now, not necessarily in the instance of intransit preclearance where presumably one would find a female officer among the many officers. In a big airport one would find a female officer to conduct a search of a woman passenger.
I must emphasize that any strip search would be conducted by Canadian officers. In other words, if a U.S. officer suspected that an individual might be concealing something on his body, the officer would be obligated to refer that individual to Canadian authorities. The Canadian authorities would then determine whether a strip search was necessary. Those Canadian authorities would have to have reasonable grounds in order to conduct a strip search.
Senator De Bané: I can tell you, sir, that I know of a Canadian doctor who was searched like that. He told me that it was the most humiliating experience he had ever had.
Mr. Preston: Was he searched by a Canadian officer?
Senator De Bané: Yes. On the one hand, we say that the potential traveller can always decline to go to the United States and not answer questions, et cetera. However, clause 34 says:
Every person who resists or wilfully obstructs a preclearance officer or a Canadian officer in the execution of the officer's duty...is guilty of an indictable offence.
What is the meaning of clause 34?
Mr. Preston: The short answer is that refusing to answer a question is not obstruction. The individual may or may not answer a question. It is not obstruction if he does not answer a question.
Senator De Bané: Clause 33 says that if he gives a false answer, then he is guilty of an indictable offence.
Mr. Preston: That is correct.
Senator De Bané: I do see all the advantages of preclearance. However, for those Canadians who would otherwise be interrogated by Canadian officers, would the situation be worse or equal or better? How would interrogation by American officials compare to interrogation by Canadian officials? I understand that people who want to enter the United States must ultimately be interrogated by American officials on American soil or, for practical reasons, in Canada.
Mr. Preston: In the first instance, those travellers are interrogated or asked questions only by a U.S. officer. If that U.S. officer suspects that a criminal offence might be involved, he is obliged to turn it over to a Canadian officer for the purposes of interrogation.
You asked whether a person would be better off being questioned by an American officer or by a Canadian officer. In a sense, it would certainly depend on the individual officer, but American officers are bound by codes of ethics.
We have also had assurances from the ambassador relating to an experience we had last year in the Calgary airport that caused some attention in the media. The American ambassador has undertaken to have a personal interest in cases that are drawn to his attention where a U.S. officer has acted outside the bounds of his responsibility. I suppose that in the event that a U.S. officer infringes someone's Charter rights, you could always challenge it.
Our agreement with the United States provides for a review of the operation of the preclearance areas. That review would allow us to discuss with the Americans any problems that we have. In the past, when issues have been raised with us regarding the conduct of U.S. officers we have addressed them to the appropriate authorities on the U.S. side, and the Americans have conducted hearings.
It is important to underline as well that the number of complaints we hear regarding the conduct of U.S. officers is very small relative to the overall number of passengers who cross the border.
Senator De Bané: On that last point, as you may suspect, people would not bother to tell the Canadian government about whatever problems they encounter. You cannot construe from the fact you have not received many complaints that people have not gone through traumatic experiences. A woman told me that on her way to join her husband in Florida she went threw a very heavy interrogation because she had only a one-way ticket, not a two-way ticket. She did not of course complain to the Government of Canada, but she did complain to me as a member of Parliament.
Finally, would you explain the meaning of clause 32? It says that the officer should destroy any information within 24 hours, and then he should take care not to disseminate the information that he has gathered through the interrogation.
Mr. Preston: First, our intent is to have reciprocity with the Americans. The processes are similar in Canada and the United States. You are right when you say that not every individual who has trouble crossing the border reports it. Of course they do not: but we do hear of them. I am acknowledging that the process must be monitored.
Second, U.S. preclearance officers will have training on the Charter of Rights and Freedoms and Canadian process to ensure that they behave according to our law. Moreover, Canadian policemen will be present in the preclearance area acting, if you will, as the conscience of the system. In fact, the Americans wanted that. They indicated that for their own protection they would like to have a Canadian officer there in the event that things started to get heated. They thought it was always useful to have a police officer there who could calm things. I think that is very complimentary about the way Canadian police behave.
Third, the officers would have very limited powers. The notion here is that the total authorities that apply to people going to the United States would be similar to what a U.S. officer would have were he based in the United States. However, the U.S. officer operating in Canada has limited responsibilities and authority. The other authorities, including criminal law, are the responsibility of Canadian laws and officers. This combination of American and Canadian law means travellers are processed under the U.S. customs and immigration laws while Canadian officials deal with criminal law. Again, the authority of the U.S. preclearance officer is quite limited in scope and the rest is dealt with by Canada.
Senator De Bané: What about the destruction of evidence?
Mr. Preston: You are referring to clause 32. That is related to a provision that is becoming increasingly international and that is part of this agreement as well. The Americans are looking for basic information on individuals arriving in the United States. Those are not Canadian-origin passengers but people coming from Asia and going through to the United States. We talked to the Americans at some length about what sorts of information they might want. We told them that we are guided by the Canadian Charter of Rights and Freedoms. We also told them about the restrictions that we felt needed to be placed on the sort of information gathered. For example, personal preferences are not to be provided. That an individual is a vegetarian is not the business of the U.S. preclearance officers. Where and with whom a person is sitting on the aircraft is not their business either.
The amount of information provided to them is limited. The idea of destroying that information within 24 hours is designed to ensure that it is not misused, because it is for the purposes of entry to the United States only. It is not to be retained for other purposes. That is why we have done it in that way.
The Chairman: I have two questions related to your answers to Senator De Bané. Am I correct in thinking that an intransit passenger confronted with a U.S. customs and immigration officer is no worse off in Vancouver than she or he would be in San Francisco?
Mr. Preston: How do you mean worse off?
The Chairman: The questions presumably would be the same in San Francisco and Vancouver. Senator De Bané was talking about embarrassing searches and so on. In Vancouver, the search would be done by a Canadian officer, but that might be less embarrassing than a search done by the comparable figure in San Francisco.
Mr. Preston: The U.S. officer in the United States would be operating under U.S. law, without the right of reference to counsel. He can treat travellers quite differently. I do not want to cast aspersions on U.S. officers operating in the United States. However, given the moral and legal restrictions on a U.S. officer operating in Canada, individuals might well be treated better in Canada than they would in the United States. It is a difficult judgement to make.
The Chairman: Let's move now to a Canadian-origin passenger seeking to enter the United States. In any case, whether entering the United States in preclearance or in a United States port of entry, they will have to go through the American search. Thus, they are not disadvantaged in terms of the entry questions by being precleared.
Mr. Preston: No. In fact if they run into difficulties in preclearance they would be dealt with under Canadian law, rather than under U.S. law as they would in the U.S. I guess it depends on your judgment as to where you are worse off.
Senator Carney: I know that this issue of preclearance is very important. It has been welcomed by the air transport industry as being vital to the concept of Canada as a gateway to the North American market. It has been a difficult issue for you, the people involved in the negotiations, so I would like to congratulate you on achieving it in this form.
How would it work? We use the word preclearance like a code, but when you say that, what does it mean? People say we have to have preclearance before this works, but I do not know what that means exactly. Our briefing notes indicate that the act makes provision for reciprocity. The immunities provided to U.S. preclearance officers under the Canadian Preclearance Act will form the basis for Canadian officers at similar preclearance facilities in the U.S. How will this be legislated? How will reciprocity work?
Mr. Preston: On the question of immunities, I will defer to my colleague. American law provides for reciprocity. For example, American customs law gives authorities to the officers to the degree that the other partner country offers those authorities. That provision in the Customs Act would allow the U.S. to provide authorities similar to what we provide them -- hence the mirroring.
Senator Carney: Does it come into effect at the same time? Will we have preclearance into the U.S. but not preclearance yet on the way back? How does that work?
Mr. Preston: Essentially, we would be entering into an agreement with them that would ensure that reciprocity.
Senator Carney: You have not dealt with the subject of timing. Once we pass this legislation, people coming from Japan to the U.S., through Vancouver, will have preclearance. However, what happens to the people going the reverse direction? What happens to the reverse door of preclearance? Does it go into effect on the U.S. side at exactly the same time as this bill?
Mr. Preston: The problem is that we do not yet have any Canadian sites in the United States. We might at some point, but certainty not as a consequence of this act.
The Americans have suggested that they have intransit in San Francisco and in Anchorage, Alaska, on the air side. We have discussed with them various proposals for the land and marine side that I mentioned a few moments ago. We also told them that until we have dealt with the air issues, we do not want to get tied into the question of other modes.
Senator Carney: I am not talking about other modes.
It has been said that the big advantage of preclearance is that we will be able to take travellers going from Asia to North America through Vancouver, or from Europe through Montreal or Toronto into the U.S. We will have a competitive, equal playing field with the American carriers because we will have one-stop clearance. My point is that this seems to work on entry into the U.S., but you are telling me that it does not work on the return trip. Is that a deficiency in the legislation?
Mr. Preston: With respect to the reciprocity on the return trip, you are only processed in the absence of a preclearance site in the United States.
Senator Carney: Let us assume that you are flying from Denver to Vancouver and then on to Japan. How does it work in the reverse?
Mr. Preston: The answer is that you go through a sterile area so that you never enter Canada. You get on a plane, fly to the other country, and are cleared there.
Senator Carney: We do not have Canadian officers on American soil as preclearance officers.
Mr. Preston: No.
Senator Carney: That is not a deficiency, and you think it will work.
Mr. Preston: Yes.
Senator Carney: Americans are being trained to work in Canada under Canadian law. That raises a variety of issues, such as the use of the French language and the fact that we have different codes for things such as bringing guns in and out of the country. Some laws regarding the transit of homosexuals into the U.S. may not apply in Canada. You refer to the Charter provisions as being untested.
What has been the experience in Vancouver with the training of American officers to work under Canadian law? How does this deal with the issue that different laws apply to different situations, such as the transport of guns, et cetera?
Mr. Preston: The intransit pilot project in Vancouver was slightly different, of course, because at that point the Americans did not have authority. They do not have the authority that is under the Preclearance Act now before the Senate. There is a joint operation in Vancouver. The Americans are processing people on to the United States, but Canada Customs is there as a backstop in the absence of those U.S. officers having authority clearly defined in law.
There has been training for the U.S. officers. That training has been very effective, but it is training for a different circumstance than the one we will be training for after the Preclearance Act has been passed and we have made these operations permanent.
You asked about gun laws.
Senator Carney: I am asking about French services and the right of people to be served in French. As well, there are different gun laws. How do you deal with those specific issues?
I am not arguing with you. I am simply asking how it works.
Mr. Preston: There are several dimensions, one of which is that the airlines have translation facilities available in the event that there are difficulties. We have also discovered at Dorval airport that the officers there have been proficient in French as well. That is presumably one of the criteria that they apply in hiring people.
Insofar as the gun laws are concerned, guns are a lesser concern in airports because before people board an aircraft, for example, they are screened by metal detectors. Guns are not the same problem at an airport that they are on a land border.
Senator Carney: Using the Vancouver pilot project, your answer is that having American officers working in Canada under Canadian law and the Charter of Rights has not given rise to any particular issues or problems that have impeded the flow of people or goods.
Mr. Preston: It has worked reasonably well. At one stage there was an issue of what they call the information desk, but the problems were not in the law. They were related more to the structure of the facility. The U.S. asked that we install a desk to which inquiries might be put because they were finding that people were coming up with tickets and asking, "Where do I catch my flight?" There was some confusion of that sort. That was the major complaint during the course of the pilot project.
Senator Bolduc: We have a note saying that the law is modelled on an agreement for airport services. How long has this accord between the Swiss and the French been in effect?
Mr. Preston: We do not know. It is certainly several years old, but we cannot tell you beyond that.
Senator Bolduc: Do you have an assessment of the efficiency of its application?
Mr. Preston: We have not attempted to do our own study of the efficiency of that operation, although we understand that it operates well.
Senator Grafstein: I have some small technical issues. The definition of "Canadian officer" is any police officer.
Mr. Preston: Yes.
Senator Grafstein: Historically, there was a maintenance of federal laws by the RCMP across Canada. That is not the case any more. It can be done by a local officer.
Mr. Preston: That is correct, a local police officer.
Senator Grafstein: Are you concerned that the standards would vary across the country with respect to the application of this law? For instance, you would have an RCMP officer in certain airports and you would have the Sûreté in Quebec. You would have the Mississauga Police Force in Toronto. The federal government is now establishing an effective federal standard, but no federal standard for police officers is built into this legislation other than to say that he is a police officer.
Mr. Preston: That is an interesting comment. The answer is two-fold.
The first point is that with respect to the policing of individual airports, the arrangements are made with the airport authorities. Given that there is a special arrangement with a special detachment, training would be provided to the police officers in the particular set of operations.
Senator Grafstein: Who would provide that training?
Mr. Preston: The training program is being run through the customs and immigration process.
Senator Grafstein: I am trying to satisfy myself as to whether, from the Canadian perspective, we have the same standard across the country, in Vancouver and in Halifax. We have discovered in other committees of the Senate that policing across the country is very uneven. I just ask you that question. Those are, in effect, federally regulated entities without a federal standard. I am interested in maintaining federal standards in federally regulated authorities.
A fair supplemental question is this: Who pays for it?
Mr. Preston: It was a matter of concern that we were not dealing with one standard police authority across Canada. We dealt with that by looking at the notion of training that detachment of police officers in the particular circumstances. As I mentioned earlier, the principles we are applying were those set out in R. v. Simmons on border control processing.
Senator Grafstein: Senator Carney's question is this: Who pays for that?
Mr. Preston: The airport authority pays for the provision of the policing, and ultimately it gets covered by the passenger because the costs are passed on.
Senator Grafstein: Subparagraph 31(1)(a) includes a curious word, "behaviours," as it relates to specified passenger information. We do not know what specified information that will be. It will be defined by regulation. In effect, a preclearance may use specified passenger information. "Behaviours" is a curious English word. Is that a typo?
Mr. Preston: No. "Behaviours" relates, as I understand it, to how one pays for a ticket, for example. For example, an American customs officer would be interested in someone who booked a flight in Bangkok and paid cash within 24 hours of departure. That is an unusual behaviour. If that individual had a travel flight pattern suggesting that he tried to take a devious route to arrive in Vancouver, that would arouse suspicions as to whether they should interrogate him further.
Senator Grafstein: That word bothered me. We really do not know, until we see the regulations, what else will be specified.
Mr. Preston: Would it be helpful for me to list the limits they might ask?
Senator Grafstein: Certainly.
Mr. Preston: They would want to know the passenger's name and date of birth. A good chunk of this is standard information. They can get that from the passport. Other information includes the passenger's citizenship and nationality, his or her gender, the passport number, the reservation date and what they call a "go show." The latter indicates that in fact the passenger did this without a reservation, just showed up and paid for the ticket. As well, there is the name of the travel agent. The Americans want to know if the travel agent is Thai, for example.
They also want to know the date of issue of the ticket, which is related to the question of how precipitously they might investigate. There is a question of whether the ticket would be exchanged and whether there is some sort of coverup. They also want to know the ticketing time, the pre-departure, and the ticket number. That is all related to the particular block of information I mentioned.
They would look for the originating city, for obvious reasons, and for the itinerary cities, to see if the passenger is taking a circuitous route.
They want to know the name of the carrier on the latest segment and the carrier on all segments; the flight number and the destination, which are evident on the ticketing information; the date of travel; the seat assignment; the number of checked bags; the baggage tag number; the class of service, which is again available from the ticket stub; the seating preference; the record locator number; any phone numbers that they have given in the course of booking the ticket; their address; the form of payment, which comes back to the question of whether they paid cash up front; whether the ticket was paid for by someone else, which is largely an American concern about drugs; gaps in their itinerary, which again relates to suspicious behaviour; routing information; and electronic ticket information. That is the list.
Senator Grafstein: That will all be set out in a regulation.
Mr. Preston: It is set out in an annex to the agreement. We sent a diplomatic note to them last year.
Senator Grafstein: I am attempting to follow the pattern here. You get the specified information and there is a suspicion. All of a sudden the suspicion turns out to be ill-founded, and within 24 hours it disappears from the computer.
Mr. Preston: Correct.
Senator Grafstein: I notice now that each time I go across the border, my passport is run through a computer. Is that information then deleted? It is the same information.
Mr. Preston: Yes, that is right.
Senator Grafstein: At one time, the officer used to look at my passport. Now instead of looking at it, he puts it through the reader, and then he passes it on. I cannot believe that that information disappears in 24 hours.
Mr. Preston: Something flashes up on his screen.
Senator Grafstein: I cannot believe it disappears.
Mr. Preston: Under American law, it must be destroyed within 24 hours.
Senator Prud'homme: Unless they have grounds for suspicion.
Mr. Preston: That is right. It must be read. The notion here is that if they detain a person, that person's information can be kept.
Senator Andreychuk: I want to go back to the question of reciprocity. Are you saying that there will not be an act in the U.S. at this time? In fact, we are granting the Americans reciprocity, but we are not receiving a similar provision from them at this time.
Mr. Preston: Under American customs law, there is a provision for reciprocity with any country that offers authorities in Canada. The provision is there.
They do not know what they are being reciprocal with until we pass the legislation. The Customs Act establishes that it would be reciprocal. We would confirm by agreement with the Americans that if we were to open a site in the United States, the same authorities that we provide to their officers here would be provided to our officers.
Senator Andreychuk: Looking at clause 4 and clause 5 of the bill, it appears we are saying that we will allow, in a designated area, identified preclearance laws of the United States to be utilized. However, at the same time, we will impose upon that specific area -- and I am talking physically -- the Charter of Rights and Freedoms and Canadian laws as they apply to criminal law.
Mr. Preston: Correct.
Senator Andreychuk: That will be rather confusing. When in doubt, which law prevails?
Mr. Preston: The Canadian law would always override.
Senator Andreychuk: It is spelled out in the Charter of Rights and Freedoms, but what about the others?
Mr. Preston: The largest body of law that one could imagine here is the criminal law. All cases of criminal law would be done under Canadian processes.
Senator Andreychuk: Where is that in the bill? It says that a Canadian officer may take over on criminal things. Is that where you are going?
Mr. Preston: The Canadian officer would take over on criminal matters. That is correct.
Senator Andreychuk: You will be going into all kinds of other things. We are on Canadian soil. I am less concerned about Canadians being precleared because they will understand Canadian rules, Canadian law. But you mention immigration here. How will that be processed? What happens to someone coming from Thailand who lands in Vancouver and who wants to immigrate to the United States? He get whatever papers. You have listed an annex of questions but there would be questions on immigration and papers to show.
Mr. Preston: Correct.
Senator Andreychuk: The list is longer than the one you mentioned to Senator Grafstein.
Mr. Preston: Immigration was included in that list, unless I overlooked it.
Senator Andreychuk: Perhaps I missed it. Everything is fine if the Americans agree to let that person in. If they do not, what happens? Does he go into a detention centre in Canada?
Mr. Preston: He has a choice. He can go back to where he came from. As his first move, he would be referred to Canadian customs and immigration authorities. Since he has not been admitted into the United States, he is in Canada and therefore must be admitted. The decision would then be made as to what to do with him, and that would depend on the circumstances.
Senator Andreychuk: Is that person is detained in Canada under Canadian law?
Mr. Preston: He may not in fact be detained, because if it was determined that he was admissible to Canada, he might be allowed in.
Senator Andreychuk: Let us assume the worst case scenario. The U.S denies the person access to the United States. The plane will continue going somewhere else. Does he stay in that designated area? Since there are no detention centres there, he will be taken somewhere else which then will be exclusively Canadian law, Canadian soil, as I understand it.
Mr. Preston: Correct.
Senator Andreychuk: That person could say, "I am a refugee; do not send me back because my life is threatened."
Mr. Preston: In theory, yes, he could. But he is not detained yet. The mere fact that he has been refused admission to the United States does not mean that he is detained. It merely means that he then must decide where he wants to go, whether back where he came from or to Canada.
Senator Andreychuk: He wants to go to the U.S. The U.S. is saying no. Who then tells him what his options are, what his rights are? It must be the Canadian government.
Mr. Preston: Correct.
Senator Andreychuk: All the Canadian laws click in. He reports to Canadian immigration, and then we have an immigration and/or refugee situation.
Mr. Preston: That is correct.
Senator Di Nino: Or a visitor.
The Chairman: Is that not often what happens now?
Mr. Preston: Exactly.
The Chairman: He or she arrives in Vancouver intending to go to the United States. The Americans at some point refuse him or her admission. Then there is the problem of what you might say is a dislocated person. It is the parallel situation except that --
Senator Andreychuk: No, it is not. When he takes a plane to Canada and intends to enter the U.S. through Canada, the Canadian authorities have made a decision before he boards that plane to scrutinize the passengers. Now, is that same scrutiny going to occur?
The Chairman: At what point, Senator Andreychuk?
Senator Andreychuk: Well, has he had to show his passport in Germany?
The Chairman: Do you mean before he crosses the ocean, he must show his passport?
Senator Andreychuk: Our immigration laws take that into account. We do not take into account that he may just be going intransit. Does this increase our risk?
Senator Stollery: Are we stuck with him?
Senator Bolduc: More than that, he has rights.
Mr. Preston: Essentially, there is no real change from where we are now. There has not been a major problem of people being denied entry to the United States. Currently, someone clearly going on to the United States goes through Canadian customs and they wave him through. They send him to the preclearance area so that he goes on to the United States, because he must go through and come back. He still is denied entry. He goes through Canadian customs and into Canada, then turns around and must go through U.S. preclearance. Before the pilot project, if he were denied entry there, he would have the same problem. He would have to report to someone. He is not going to the United States. He would be granted admission to Canada at that point.
Senator Andreychuk: Will we continue the kind of scrutiny and vigilance at the point of embarkation that we do for the situation today?
Mr. Preston: It is the carrier who does that when the passengers board the aircraft. The airline agent at the counter has an obligation to ensure that passengers have the correct documents. They do not want to put people on aircraft and then find that they come back. Of course, you do get people who fly into the United States or into a Canadian airport and find ultimately that they are refused anyway.
There should not be an increase in the number of cases because the ticketing agent will have to make the same sorts of decisions in the first instance. One might argue that the credentials of people destined to the United States might be scrutinized even more tightly because of the very stringent American immigration requirements.
Senator Andreychuk: I guess the confusion comes if we lessen our vigilance at the point of embarkation.
Presumably, we will advertise that you can now do preclearance and that is good for you. Travel agents will tell clients that they will not have to go through double entry since they are only going through to the U.S. But the fact is, if a passenger is denied entry to the United States, he may have to go through a Canadian entry. Will the brochure say that? Will the travel agent say that? There will be an expectation on the part of travellers.
To me, it is a question of sovereignty. It will be very difficult if something occurs in that space where the U.S. officer says or does something that is not quite the way we do it in Canada. It will be very hard to try to straighten that out in the mind of the average person who ends up ultimately in our hands. Those actions were American but on Canadian soil. We only picked it up. I think there is a muddling of sovereignties by this. We must be careful.
Mr. Preston: Canadian sovereignty always applies at the end of the day. When an individual comes in, makes their application to go to the United States and for whatever reason is turned back or mishandled, there are processes which allow us to revert to Canadian law or Canadian processes. That individual is then turned over to be dealt with by Canadian authorities. Someone suspected of a criminal offence is will be dealt with by Canadian authorities. Canadian customs and immigration people will look after someone denied entry to the United States. In the end, we always manage that under Canadian law, Canadian processes.
Senator Andreychuk: You indicated that it would be the Canadian officer who would do a strip search. That would be for criminal purposes. But you said, if I understood you correctly, that the American officer could do a pat down. Can you explain what a pat down is?
Mr. Preston: A pat down is with clothes on. We got into a discussion as to whether that implies taking off an overcoat, for example. However, literally it means that they do not remove their clothes. The pat down is done externally as a security measure.
Senator Andreychuk: There is another curious turn of phrase in clause 16(2):
The traveller must give a truthful answer to any question that is asked by the preclearance officer for preclearance purposes.
Can refusal lead to a criminal offence if the traveller does not tell the truth?
Mr. Preston: Yes, if he does not tell the truth. If you do not want to answer the question or you do not like the question, you can turn around and walk away and not answer that question. However, if you answer a question untruthfully, you are then referred to a Canadian officer.
Senator Andreychuk: The truth becomes subjective. I may think that I am telling the truth. Usually, these things use such language as "mislead," "deceit," and so on. Now you are saying "truthful." I think I am telling the truth to the best of my ability.
Mr. Preston: The language is similar to our own Customs Act. Clearly, what constitutes the truth ultimately will be dealt with, in the case of a prosecution, by the courts. The courts will decide whether it was a lie or not.
Senator Andreychuk: Will the individual be detained subject to further investigation? If an officer has reasonable and probable grounds to believe that he has been told an untruth, will he detain a passenger?
Mr. Preston: It depends on the circumstances. The basic premise of having a false declaration provision is to allow for prosecution. For example, the officer asks, "Are you carrying drugs?" You say, "No." If he then discovers that you do have drugs, there is both an untruth and a criminal act -- carrying drugs. The intention is to create a means by which people could be further interrogated. The facts of the case would, in most cases, be perceived to be criminal in nature.
[Translation]
Senator Robichaud: At present, there are no preclearance areas in the United States. Is that right?
Mr. Preston: Yes, that is correct.
Senator Robichaud: However, once this legislation is in place, its provisions will apply on both sides of the border. Correct?
Mr. Preston: In the United States?
Senator Robichaud: Once reciprocal arrangements are in place, the Americans will grant us the same rights as we grant them.
Mr. Preston: Canadians will have the same rights, yes.
Senator Robichaud: The same rights that we grant Americans here in Canada?
Mr. Preston: Yes.
Senator Robichaud: You stated that Canadians benefit from an added element of protection which is not available in the United States, namely the Charter of Rights and Freedoms.
Mr. Preston: Correct.
Senator Robichaud: Therefore, when reciprocal arrangements are in place in the United States, the search in Canada will be conducted by a Canadian officer. Citizens are entitled to Charter protection. However, in the case of a Canadian citizen in the United States, will the search be conducted by a U.S. officer? If so, that Canadian citizen will no longer have the protection afforded by the Charter. Could that person refuse to be searched and insist that the procedure be done in Canada, where he can be certain of the Charter's protection?
Mr. Preston: These are interesting questions. The simple answer is no.
Senator Prud'homme: No to what?
Mr. Preston: No, the person cannot ask to be searched in Canada. Currently, a person in transit in the United States in a U.S. airport is on American soil and is subject to U.S. laws. Clearly, we cannot impose our laws on the United States.
Senator Robichaud: I agree, but as a Canadian, accepting a situation like this diminishes my rights. I have the right to demand from the government or from officials that these privileges be granted to me upon my arrival in Canada, and I have the right not to be subject to U.S. laws before coming here. Do you understand what I am saying?
Mr. Preston: Yes, quite clearly. The issue here is fundamental Canadian laws and our sovereignty.
Senator Robichaud: I agree.
Mr. Preston: And when in the United States, U.S. sovereignty and fundamental U.S. laws have precedence.
Senator Robichaud: I do not dispute that, but to agree to submit to preclearance operations by a U.S. officer diminishes the rights I would enjoy in Canada upon my arrival on Canadian soil.
Mr. Preston: The preclearance officer in the United States is a Canadian.
Senator Robichaud: Is that a fact?
Mr. Preston: Yes, it is true.
Senator Robichaud: And if a search is ordered in Canada?
Mr. Preston: It is conducted by a Canadian.
Senator Robichaud: Even though the preclearance officer may be an American, the search will be conducted by a Canadian. Is that what you are saying?
Mr. Preston: Exactly.
Senator Robichaud: And is the same true in the United States, namely that while the preclearance officer would be a Canadian, the search would be conducted by an American?
Mr. Preston: Precisely.
Senator Robichaud: Therefore, I lose my Charter rights if the search is conducted in Canada.
[English]
The Chairman: It might be useful for the committee to hear the source of the technical information directly.
[Translation]
Ms Jacqueline Caron, Criminal Law, Privileges and Immunities Section, Legal Affairs Bureau: You raise an interesting question. The arrangements are totally reciprocal. The Canadian officer in the United States will have the same powers as the U.S. officer working in Canada. Consider what happens when no preclearance arrangements are in place. A Canadian citizen travelling from the United States back to Canada is completely at the mercy of the U.S. system. If, for some reason, he arrives at the airport and U.S. authorities suspect that he is carrying drugs, not only will he be strip searched by an American officer, but he will also be frisked or patted down. Once a preclearance system is in place in the United States, Canadian travellers will have more rights than they now have. They would be frisked by a Canadian officer before being handed over to U.S. authorities. At least this search would be done by a Canadian officer. We cannot, however, export the provisions of our Charter to the United States and impose them on U.S. officers. The latter have a duty to enforce their own laws.
Senator Robichaud: I understand your point, Ms Caron. However, by establishing this preclearance area, you are taking away the protection I have under the Charter, if in fact I cannot refuse to submit to preclearance or if I am under some kind of suspicion. I do not have to submit to this, because I can clear customs in Canada upon my arrival and benefit from the protection of the Charter at that time. It is that not correct?
Ms Caron: Yes and no. Currently, travellers are not required to be precleared. There is no such preclearance system in place in the United States. If one is set up, travellers will not be required to use it. They can simply pass through one door and arrive directly in Canada. Preclearance is a voluntary service available to people, whether Canadian or American, to accelerate the processing of passengers. However, if you prefer, as a traveller, to arrive directly at the Canadian airport without going through a U.S. preclearance officer, once they are on the job, you would be at liberty to do so.
Senator Robichaud: Therefore, it is possible that on the same flight arriving in Canada, you might have some passengers who have been precleared for entry and others who have not. Is that right?
Ms Caron: I do not believe so. On any given flight, there will only be one category of travellers: passengers who have either been precleared, if I can use this expression, or passengers who have not.
Mr. Preston: They would be on different flights.
Senator Robichaud: Your plan is to set up preclearance centres in the busiest U.S. airports that handle the highest volume of Canadian passengers. If I do not wish to be precleared, I will have to select another airport.
Mr. Preston: Travellers always have a choice.
Senator Robichaud: Yes, but this is not very practical.
Ms Caron: Travellers always have a choice. They can choose to travel, or not to travel. They can choose their flight and if they do not wish to be precleared, then they can opt for another flight.
Senator Robichaud: If I have a ticket on a Canadian Airlines flight and upon arriving at the airport, I realize a preclearance system is in place and I prefer to clear customs in Canada, I would have to change airlines and use another airport.
Ms Caron: Yes, you can always choose to use a U.S. airport where no such preclearance system is in place.
Senator Robichaud: Nevertheless, I still think Canadians come out on the losing end of this arrangement.
Ms Caron: Yes, but we cannot impose our laws on Americans when in the United States. It is a question of extraterritoriality. We have made it very clear to the Americans that Canadian laws apply while they are in Canada. We cannot impose our laws on Americans in preclearance areas in the United States. It is that simple.
Senator Robichaud: However, from a reciprocal standpoint, we extend this right to Americans in the preclearance areas. They enjoy Charter protection.
Mr. Preston: In Canada, yes.
Senator Robichaud: Then there really is no reciprocity.
Mr. Preston: In the United States, travellers enjoy the protection afforded by the U.S. Constitution which is different from ours.
Senator Robichaud: I hope that no one has to live through this experience.
Mr. Preston: There is also the U.S. Bill of Rights.
Senator Robichaud: That is not the same thing.
[English]
Senator Whelan: Recently, I attended a meeting in the City of Windsor where officials from U.S. senators' offices located on the borders of various states -- Texas, New Mexico and California, and Michigan, Ohio and New York -- were helping us to find out how things work there.
Have any of you have travelled across the border in the last month or two?
Mr. Preston: In the last two months, I have been across probably six times, including at Windsor. I have been across at Windsor-Detroit and Fort Huron-Sarnia because I went there to look at the operations and talk to the people.
Senator Whelan: You are aware of the fact that, on average, 55,000 travellers per day cross the Ambassador Bridge. The figure for the tunnel is approximately the same, 55,000. I have travelled a lot between the United States and Canada and in other parts of the world so I am pretty familiar with how things work.
You talked about the convenience of preclearance. I had to cross the border because of a death in our family in Arizona. We flew to Toronto and, although we missed the plane to Phoenix, we went through the American customs in Toronto extremely quickly. That was preclearance, was not it?
Mr. Preston: Yes.
Senator Whelan: There was not a question asked of anyone. You just gave them the card you filled in with all the details of birth, age, and so on. I probably look harmless at my age.
Senator Di Nino: That is a matter of opinion.
Senator Whelan: I am concerned about the new legislation in the United States. It has not been proclaimed yet, but they told us at that meeting in Windsor that it would take six hours to clear a truck.
Mr. Preston: I believe you are talking about section 110 of the American Immigration Act. As you may be aware, the government has been lobbying in the United States to get that taken out of the books. The difficulty on the U.S. side is that they have not yet moved to implementation.
We have, in cooperation with a large number of politicians on the southern side of the border and a lot of private-sector interests on both sides of the border, been successful in getting a delay in implementation until March 2001. The idea in the meantime would be to get that provision of the act killed. We certainly have friendly people in the House of Representatives and in the Senate in the United States with whom we are working to try to get that taken out.
Your calculation of the delays at the border, which would be imposed by Americans documenting people both on entry and exit, is accurate. That is why we are trying to get that removed from their Immigration Act.
Senator Whelan: Someone mentioned free trade earlier. That would be one of the biggest barriers to free trade there could be. In truck traffic alone, per year, 260,000 trucks traverse the tunnel and 2.8 million trucks cross the bridge. They average 7,700 a day across the Ambassador Bridge, both ways. Obviously, this law is entirely impractical.
I admire you people for having educated the Americans on what is going on at those border points. The group from the meeting I referred to went from Detroit to Buffalo and Niagara Falls the next day to view for themselves what was going on. It was an excellent exercise that your people organized in Detroit.
Let me go back to the subject of "body search," which you mentioned a few moments ago. Will there be inspections of body cavities, which is where drugs are sometimes put? If so, will an ordinary office person be expected to do that if an officer is not available?
Mr. Preston: That is a medical procedure which can be only be done in the hospital. Those individuals will be taken off under Canadian supervision.
Senator Whelan: You mentioned police forces. Well, ours is not a big metropolitan area, but we are only 20 minutes from downtown Detroit. There are 20,000 people in our new community, the premier of Ontario having decided we should all be one, and I can tell you that that kind of inspection is done there in a little municipal police force office. I know one of the persons who do that. If it is a female, a female person does it. If it is a male person, a male person does it. They are not doctors, but they do that.
Senator Grafstein mentioned the fact that our police forces are inconsistent from province to province unless you are using the RCMP.
Mr. Preston: Yes. The same would apply to Canadian Customs Border Services. For someone entering Canada and coming through our customs, the process would be exactly the same. It is not for me to comment on the proficiency of the police, but there are standards under which these things are supposed to happen. The issue is not around whether this is preclearance or not. The issue applies when they are trying to enter Canada, whether or not they are coming through preclearance. They will still be dealt with by Canadian authorities.
Senator Whelan: Much is left up to the individual customs officer, either Canadian or American. It seems to depend on how they feel on a particular day. If they are in a bad mood, perhaps they should not be on the job.
My wife was born in Yugoslavia of German descent. Her passport shows where she was born. An officer said to her, "Say something to me." He wanted to know if she had an accent. She had been in Canada since she was nine. My Finnish sister-in-law was sitting next to her. He did not ask her to say something to see if she had a Finnish accent.
Senator Stewart: I had the same experience, and the test word was the name of a small town in eastern Nova Scotia. It is Antigonish. They say, "You know that town?" If someone says, "Anti-GO-nish," then there are more questions, and quite rightly so.
Senator Whelan: They depend on the airline officials. They ask if you have a passport or visa or whatever.
Mr. Preston: The worry is when someone embarks on an aircraft to fly to North America. In the sense of making the airlines accountable, the cost of returning that individual is borne by the airline. Suppose someone flies to Canada and is refused for whatever reason. Suppose it turns out the person's documentation was not sufficient. The airline would then be obliged to return that person whence they came. The onus is on the agent who is accepting the person.
Senator Prud'homme: That is after five years in a refugee court.
Mr. Preston: No.
Senator Whelan: Is there anyone in the committee room from the American embassy or an American representative?
The Chairman: I am not in a position to answer that question.
Senator Stollery: Mr. Chairman, I was a Member of Parliament on December 1, 1972, when we brought to an end the rule that you could apply to become a landed immigrant from within Canada. It was a very big thing. I was an MP for the most multicultural constituency in the country, downtown Toronto.
For many years, I have followed the issue of the increased speed with which people can move around in this changing travelling environment. For some reason that I not aware of, many Americans from Chicago prefer to go through Toronto on their way to London, England. Consequently, when they return from London, they must come back to Toronto and be cleared by Canada's customs officers. As a result, they often miss their plane or have to catch a later flight because they have to then go and be cleared by the U.S. customs people. If they are U.S. citizens returning from overseas, there will probably be more questions about whether they bought anything, and so on.
To me, it seems unnecessary for persons from Chicago to have to go through two sets of customs in order to go home, simply because they take Air Canada from Heathrow. I have wondered about that.
I believe that the immigration system that was in place until December 1, 1972 was ended because of unscrupulous people and the unscrupulousness of certain travel agents. There was not much we could do about that except to say, "You cannot get on the plane in your airport of origin without showing your documentation." We have to show our passports, but people about whom they have suspicions are checked much more thoroughly than, for instance, someone who looks like who he says he is. There is no question that an unscrupulous person will make use of every trick in the book.
I recall from the debate on the green paper on immigration that the Americans were supposed to have 6 million illegal immigrants then. I understand that they supposedly still have millions. No one knows how many there are.
Is there a plan for preclearance the other way? Why is it only a one-way street?
Mr. Preston: That is a good question. There are several reasons for the one-way street. There are a large number of airports in the United States. In the opposite direction, we have customs and immigration facilities at all our major airports, but the Americans do not. The American airports, Toronto notwithstanding, are somewhat larger. The advantage to us in preclearing into the United States is that we have a small number of airports of origin funnelling into a much larger number of sites in the U.S. At the opposite end, if you look at this as a "Y" shape, you have a large number of airports in the United States funnelling into a smaller number here, all of which have customs and immigration facilities.
The pressure has not been there to do it from the other side because you would need fairly vast coverage in the United States. We would need to position large numbers of Canadian officers in the United States to achieve what they can achieve by putting a few officers in seven airports in Canada for preclearance purposes.
Senator Stollery: I do not go to the U.S. that often, but wherever you come from, you must go through the same line-up when you get to Toronto. It is becoming a massive operation. If you have several 747s coming in from Europe at the same time as people coming from holidays in Florida or the Caribbean, it is a massive and troubling ordeal, if you happen to be a businessman. You get caught up with 1,000 other people.
I understand you cannot put it in Pittsburgh, but it seems to me that it would not be hard to find three or four airports where a good percentage of that traffic originated.
Mr. Preston: The Americans have suggested Anchorage, which is a curiosity to us. Perhaps more realistically, San Francisco has potential as a first site for preclearance in the United States.
Under the preclearance agreement of 1974, criteria were set out for when one would introduce preclearance, but we certainly do not want to put Canadian preclearance officers into airports in the United States if the volumes do not justify it. That is an issue. We have been asked to consider a proposal to open up preclearance sites in the United States.
I should add one other point about what is happening with respect to U.S. airports. Not only do we have the funnel effect, but also now, as a result of Open Skies, we are getting more direct flights into a great number of U.S. airports, which has facilitated things. In the past, you used to have to go through hubs in the United States. I suppose, in part, the logic of having preclearance sites in the U.S. would be that you had U.S. hubs. That would mean someone would have to fly to that hub to get into Canada to take advantage of preclearance. I think the answer to the question of why there are not more preclearance sites in the United States is related to that as well. The more we open up flights to the United States, the more direct flights there can be here, and the less inconvenience of having to clear in Canada.
Senator Stollery: I would have thought that La Guardia would be a natural for a preclearance in the U.S. A massive number of Canadians go through there every day.
Senator Di Nino: There is a piece of legislation that is principally to create an opportunity for the clearance, if you wish, of intransit passengers.
Mr. Preston: No. This bit of legislation relates to all preclearance.
Senator Di Nino: I understand that, but we seem to be hung up on the issue of intransit passengers and the problems that that may or will create.
Mr. Preston: Those are the questions from members, yes.
Senator Di Nino: Let us say you are travelling from Hong Kong to Vancouver en route to the U.S., or travelling from Heathrow to Toronto and then to the U.S. Could you tell us where the differences would be, or where problems would be created, if any, by changing from a step-one clearance in Canada and a step-two clearance in these hubs, where we now have preclearance, essentially? Where are we really creating differences from what exists today? What are those differences?
Mr. Preston: Let us take the case of someone flying in from Hong Kong to Vancouver and going on, say, to Los Angeles or going on to Chicago. One difference would that less time would be required in the Vancouver airport. Under the current system, they come in, they deplane, and they go to customs and immigration and clear their bags. They are now in Canada. Then they go down the hall and enter into an entirely different country and start all over again and go through another process. This preclearance, in effect, short circuits that process. There is a big time difference. They can go directly into a U.S. preclearance, which means that they can make shorter connection times in Canada to go on to the United States.
Senator Di Nino: Other than that, how are we as Canadians affected legally or practically?
Mr. Preston: I do not understand the question.
Senator Di Nino: Some of the questions have dealt with the application of Canadian law and then the application of U.S. law. I say it does not make any difference. You are going through the Canadian law, and then the American law is applied. If you skirt one of them, you will save some time. As my colleague says, and as I have heard some other colleagues suggest, a problem may be created by the application of U.S. law to a particular passenger, or for that passenger in transit to the U.S., which may create a further problem for us. That is what I do not understand.
Mr. Preston: What you have, in effect, under the one-stop approach is that you are getting both clearances at the same time when you go to preclearance. The Americans have a limited authority. The important point here is that they can only administer their customs and immigration. They can only question whether the goods that you have can be taken legally into the United States. Do the plants that you have -- well, actually you are not supposed to have plants at all, but do they have bugs that they do not want in the United States? That is what the Americans can do.
When it comes to other questions of law, Canadian law would apply. You are on Canadian soil. The individual must be processed in accordance with the Canadian Charter of Rights and Freedoms. If that person is creating a criminal offence and is on Canadian soil, Canadian law should deal with him. In effect, you are sort of telescoping it all into one particular place. In the old days, if the criminal law had been detected at Canadian customs, it would have been dealt with through the Canadian criminal process.
Senator Di Nino: Other than saving time, what other considerations are there?
Mr. Preston: I am hesitating on this question. I am trying to look to see whether there are any other considerations. The principal thing is saving time.
Senator Di Nino: I agree. Let me ask the question in a different way. Why are we doing this? What is the genesis of this legislation?
Mr. Preston: There are a few things, one of which is the sheer volume of traffic. Given the Canadian Charter of Rights and Freedoms, given that we would assert that Canadian criminal law would apply to U.S. officers operating in Canada, the notion here is that through this process, we are clarifying that. We are clarifying the limits of what the U.S. may or may not do in Canada. We have had a number of publicized events in the media concerning the conduct of U.S. officers. This will define what those officers may and may not do. It will make clear that the Canadian Charter of Rights and Freedoms applies. It gives us the rationale for handling the training of the Americans to ensure that they understand our position, so that they do not offend against our Charter of Rights and Freedoms. I would say that the principal thing this does is bring a certain amount of certainty or clarity to what Americans may or may not do on Canadian soil.
Senator Di Nino: It says what they can do in Canada in their role as immigration and customs officers for the U.S A.
Mr. Preston: In their purpose of clearing people into the United States.
Senator Di Nino: Clearing or preclearing?
Mr. Preston: Preclearing. I stand corrected. They are preclearing people before they arrive in the United States. One could argue that, since that is where the people intend to go, the Americans are perfectly logical in asking that their officers, who are processing those people for entry to the U.S., be enabled to apply a limited set of laws -- namely, the conditions of entry to the United States.
Senator Di Nino: Then it is for convenience and is likely saving not only time but tax dollars in Canada.
Mr. Preston: Absolutely, because, of course, you do not involve Canada's Customs Border Services since you are clearing people who are going to the United States.
Senator Di Nino: It is also for the benefit of those in transit. It would save them time. Moreover, the legislation will ensure that there is no misunderstanding with respect to the authority and the responsibilities that the Canadian immigration and customs officers have and the U.S. immigration and customs officers have; is that correct?
Mr. Preston: That is correct.
Senator Di Nino: Have you heard any objection so far, other than what you have heard from us here? Is there a hole here that we have not seen yet?
Mr. Preston: This is a bit like never mentioning in a baseball game the fact that the pitcher is pitching a no hitter. At the risk of tempting fate here, I can say that there has been a surprising lack of criticism of this. We provided this to immigration lawyers, who have generally been very critical of the government with regard to the rights of travellers and protection for immigrants, but, although in fact they been critical of the government in the past, we have not heard from them on this. So the answer is no, we have not heard criticism.
Senator Di Nino: Am I correct that the list of questions that you read for us that would be asked of anyone entering the U.S. would be exactly the same whether that person had gone through Canadian customs and immigration or not?
Mr. Preston: In the main, yes. We did this in the context of the Charter of Rights, and we also had the advice of Revenue Canada Customs Border Services on what sorts of information they would ask for in the conduct of their duties.
Senator Di Nino: Are we creating an extra burden for those people who are in transit? That is my real question.
Mr. Preston: No, there is no extra burden, because this information is provided to the ticketing agent. This is information that is provided as a matter of course. The burden, if any, is on the airlines, as the legislation points out. It is the airlines that have the obligation to provide the information. They have an obligation to provide to customs in advance the information they receive from the traveller.
Senator Di Nino: I do not think I asked the question properly. When someone today goes into Vancouver from Hong Kong, he goes through Canadian customs and that is finished. Then that person may go through U.S. customs. You read a list of information that the U.S. customs officer is authorized to inquire about.
Mr. Preston: No, it is not quite like that. This is information that is provided in advance of the arrival of the flight. Let us suppose the flight is out of Tokyo. The air carrier and the agent, in the course of booking that ticket for the person, provide a certain amount of information. You know from the way the ticketing has been done whether it has been paid for by cash. To take another item from the list, you will know where the destination is. That all applies. The carrier knows that information and provides that information in advance on passengers arriving in the flight.
The advantage therein is that the customs officers can look at this information and say, "We are not interested in any of the people on this flight." You get into circumstances that have been alluded to before. Although this is preclearance originating in Canada, there are circumstances where they wave the flight through. There is very little questioning whatsoever, because the U.S. officers, like Canadian officers, are only interested in targeting high-risk passengers. The objective is to allow people who are clearly a very low risk to go straight through.
Senator Di Nino: This piece of legislation is not affecting that. That is the same as it would be without this piece of legislation.
Mr. Preston: No, because this provides that, as part of the process of entering into the United States, the air carriers would provide the information to the U.S. authorities. The alternative is not to go through intransit preclearance but to go through Canadian customs on the way. That is the way it is done now. Under the old system, someone would come through our Canadian customs; so there would be a second screening of the people after they arrived at the U.S. customs.
The Chairman: Senator Di Nino, I thought of two other benefits in addition to the ones you mentioned. Presumably, the existence of this preclearance into the United States will mean more business for airlines based in Canada. In addition, it opens up Toronto as a mid-continental port of entry into the United States.
Senator Di Nino: With what benefit, if they are just going through?
The Chairman: It is a big airport with lots of shops, but we will not get into that.
Mr. Preston: The benefits are to the carriers. The person has a choice. They can fly on an American carrier and fly directly into the United States or they can fly on a Canadian airline and fly through Canada. They will choose on the basis of the most direct routing or competitive fares. This just levels the playing field.
Senator Prud'homme: I have a question about intransit preclearance. What if the Americans refuse to let you in, for whatever reason, even though you are only transiting Miami en route to South America? Senator Stollery would know how difficult it is to get to Latin America or South America from here. We are like prisoners. So you go to the United States, in transit, towards anywhere else you want to go. Let us say you are refused by the preclearing in Montreal or Toronto. When you are in transit, you are not going to the United States.
Mr. Preston: The problem is that as long as you land in the United States, the Americans have the right to determine who can be there, even in transit. Suppose that flight arrived directly in Miami and they were going on to Latin America. The same thing would apply. They could refuse them entry.
The Chairman: It makes no difference in that case.
Mr. Preston: It makes no difference to what?
The Chairman: In other words, having preclearance in Montreal or Toronto is not a disadvantage over the present arrangement.
Mr. Preston: No. In fact, I have just been told that the Miami transit lounge, to answer that question directly, has a sterile area so they can go on into Latin America and not be subject to U.S. customs.
Senator Robichaud: You do not go through customs at all.
Senator Andreychuk: Yes, you do.
The Chairman: Honourable senators, clearly, we cannot get the answers to all of our questions this evening. I have names on my second-round list, but time does not permit us to deal with that tonight. May I suggest that we try to get the record of this meeting and study it. I suspect that there are answers in the testimony that already has been given that will be helpful to all of us as we shape our second round of questions.
Another problem, which occurred to me during the questioning, is whether there are interests, other than those represented here today, who would like to appear on this bill? We have had communication from some, but as far as we can ascertain, they all want to come here to support the enactment of the bill as it is now. If that is true, there is no point in hearing them. They will all say how good a bill it is, which will be simply repetitious. I will try to sort that out, if all members are agreed. Obviously, if a prospective witness wants to support the bill, and is not unhappy with it and is not proposing an amendment, then hearing that evidence would not be of great help to the committee.
Senator Andreychuk: I am still preoccupied with one point. If airlines are selling overseas tickets and travel agents are saying that one of the benefits of going through Vancouver is that you do not enter Canada but can simply go through the U.S. customs here, then that is an advantage. However, what will happen to them, and will they be told what will happen to them, if they fail, and are refused entry into the U.S.? Can the witnesses here answer that question? It is not so much a legal question; nor is it a matter of being opposed to the bill; but practical things must be put in place to make the bill work. If these witnesses can answer that question, then in my opinion we do not need to hear any further witnesses.
The Chairman: We will have these witnesses back, because I have two other senators on my list to ask questions, as well as yourself, Senator Andreychuk.
Senator Grafstein: I wish to correct the factual record of the witness. The witness said in response to Senator Whelan that the position with respect to section 110 was due to politicians south of the border.
Mr. Preston: Did I not say politicians both north and south? If not, I apologize. That would be a terrible oversight. Your colleague three chairs to the right was instrumental in this, as well as several other senators, including yourself.
Senator Grafstein: For purposes of the record, the Canadian-U.S. committee was quite proactive on that issue. It included senators, as well as members of the other place. They were proactive the day that legislation came before Congress, and its success was due, in large measure, to parliamentarians who persuaded congressmen that they should hoist it for a while.
Mr. Preston: My focus was on the fact that we had allies on the U.S. side, rather than on the fact that we, in Canada, were active in supporting it. Your point is very well taken.
The Chairman: I must explain what Senator Grafstein is up to. He is saying a word on behalf of the Canada-U.S. Parliamentary Group, in which he is an active member. He is telling us that you made an almost fatal error in not including him and the other Canadians on that group with U.S. senators and members of the House of Representatives.
Mr. Preston: I apologize.
The Chairman: Thank you very much. We will let you know when we need you again.
Honourable senators, our next witness is Mr. Roland Dorsay from Canadian Airlines International Ltd.
Mr. Dorsay, you heard the testimony. You have been attentive all afternoon. Do you support the legislation as it is now?
Mr. Roland Dorsay, Director, International and Regulatory Affairs, Canadian Airlines International Ltd.: Yes, senator, Canadian Airlines does support the bill fully as it stands.
The Chairman: Do you have any arguments to strengthen the case for sending this bill forward for Royal Assent?
Mr. Dorsay: I would be very happy to focus for a few moments on the commercial aspects of the bill. There has been some expression of interest as to why this legislation is moving forward.
I wish to emphasize that for Canadian Airlines International Ltd. and the entire Canadian airlines industry, both preclearance and intransit preclearance are tremendously important to us. Preclearance and intransit preclearance simplify the process of travel across the U.S. border. The more simple it is and the more people who travel, the more generation there is of trade, travel and tourism.
The airline industry is changing dramatically. As anyone who reads the newspapers or travels a great deal would know, we are becoming increasingly a global business, as much involved in global networks as we are in the business of carrying passengers between Canada and other places.
Preclearance has traditionally been a substantial disadvantage to the Canadian airline industry. The reason for that is that, while it is a tremendous convenience to the consumer in terms of getting from Canada to the United States, it has in some respects stood in the way of the ability of Canada's airline industry to participate more actively in the very large U.S. market that we have to the south of us. Intransit preclearance removes that obstacle.
To put this in perspective, Canada's international aviation market represents about 1.5 per cent of the global aviation business; the U.S. international market represents about 30 per cent of the world's aviation business. Intransit preclearance gives to Canadian carriers the ability to participate much more extensively in that business. We see a tremendous upside opportunity for us in that we will be able to exploit the facilitation that comes with intransit preclearance.
Senator Robichaud: Will it mean cheaper rates for Canadians?
Mr. Dorsay: In a way, it will. The airline industry is a capital intensive business. Airports and airplanes are expensive. The unit cost of airports and airplanes goes down the more people travel. The more people going through your system, the lower the per-unit costs for the passenger and for the industry. If you can add 20 per cent to 40 per cent more passengers to your international flights because you are participating in the U.S. market, your unit costs come down.
The Chairman: Have you heard any objections to the bill?
Mr. Dorsay: None at all, sir; certainly not within the Canadian airline industry, where it is widely supported.
Senator Grafstein: Has the Canadian Bar Association reviewed this legislation? Normally any bill that has legal implications is also carefully vetted by the bar and the appropriate subcommittee of the bar. That is not the case here. It strikes me that that is a safety precaution we should adopt. Has the bar been consulted?
The Chairman: You are not addressing that question, I assume, to Mr. Dorsay, but to the previous witness, whom I have already excused.
Mr. Dorsay: The short answer is that I do not know.
Senator Whelan: Senator Prud'homme mentioned direct flights. Does Canadian Airlines not have direct flights to some countries in South America?
Mr. Dorsay: We have daily flights to Brazil, and those services extend to Argentina. We also have joint co-share arrangements to Santiago, Chile.
Senator Whelan: It never hurts to advertise.
Senator Andreychuk: Will you have to change your procedures by virtue of this? You will be telling passengers that they will be on Canadian soil, but they will not be going through Canadian immigration. However, if they fail, will they be subject to Canadian immigration?
Mr. Dorsay: We have already changed our procedures in a number of ways, although not precisely in that way.
At all of our offshore check-in locations, we put up signage in several languages -- English, French and the local foreign language of the country -- advising passengers of the intransit preclearance process and what is expected of them. We advise them that it is optional for them to participate in the process.
Senator Andreychuk: Will that include advertising this new service, which I think most people want? They want to get through fast, but there is the downside that, if they do not get through the process, they will not know what happens to them. Will you tell them what happens? Some people might have to go through twice.
Mr. Dorsay: Some people may have to go through twice, but at the moment, all who go through to the United States via Canada go through twice. For some, the procedure, in effect, would remain the same. For the large majority, it would be greatly simplified.
Senator Andreychuk: The consumer has the right to know the consequences of that procedure. Will that be specifically stated?
Mr. Dorsay: I believe it is stated on the signage that we provide at all of the foreign locations.
Senator Andreychuk: You will actually say that, if they do not get through U.S. customs, they will be subject to Canadian customs and immigration laws?
Mr. Dorsay: Yes, I believe that is what it says.
Senator Robichaud: What would a sterile intransit lounge do for your business? Would it do the same as preclearance?
Mr. Dorsay: A sterile intransit lounge is essentially an opportunity for passengers who are transiting Canada to have a place to stay while they are making their connecting flight. As in many intransit operations at other international airports, it provides an opportunity for passengers to engage in duty-free purchases, and possibly to shower and refresh themselves en route. It is simply an available facilitation procedure.
Senator Robichaud: Would intransit preclearance not also attract Americans to use your airline?
Mr. Dorsay: Absolutely. With intransit preclearance, it becomes much more attractive for many Canadians to travel to third countries via Canada, but it is also particularly true for that very large number of Americans who are not originating their trips at cities with international airports. If you live, for example, in Buffalo, it is just as convenient under the right circumstances to go overseas via Toronto as it is to do so via Chicago; arguably it is more so, because U.S. airports tend to be more congested.
On the inbound trip, for many passengers it is much more convenient to go through the U.S. inspection process in Canada than it is to do so in the United States. If you have experienced entry into the United States at any of the major airports, such as Los Angeles, Miami, New York or Chicago, you know that you are likely facing long lines to get through the customs inspection process compared to doing so in Canada.
The Chairman: Thank you very much, Mr. Dorsay.
Honourable senators, I propose that we adjourn our meeting. We will let the government witnesses know when we will need them again. I will try to ascertain if the other persons seeking to be witnesses are taking roughly the same position as Mr. Dorsay has enunciated. If so, I do not know that there is much point in asking, for example, people to come all the way from Vancouver.
Senator Whelan: We should get a letter from them.
The Chairman: Senator Whelan suggests that I ask them to write a letter describing their position. That is a good idea. The committee will do that.
The committee adjourned.