Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 32 - Evidence
OTTAWA, Tuesday, March 23, 1999
The Standing Senate Committee on Foreign Affairs, to which was referred Bill C-35, to amend the Special Import Measures Act and the Canadian International Trade Tribunal Act; and 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 6:20 p.m. to give consideration to these bills.
Senator John B. Stewart (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. I believe you remember the situation. This committee looked at Bill C-35, to amend the Special Import Measures Act and the Canadian International Trade Tribunal Act.
At that time, no objection to the bill was raised. In the intervening week, to my knowledge, no objection to the bill as drafted has been raised. Consequently, it would appear that no one is proposing to move an amendment. Does any member of the committee propose to move an amendment?
Hearing no response, I conclude that no senator is proposing to move an amendment. This bill comprises 65 clauses.
I begin by asking you, shall the title of the bill be postponed?
Hon. Senators: Agreed.
The Chairman: I turn to clause 1.
Senator Di Nino: I have a question that was raised at the last meeting on which I am not sure we received a satisfactory answer. That issue dealt with the confidential information that was to be provided.
I wish to hear from the witness that we should not be concerned about this issue. That is, that confidential information will be kept confidential, and that this issue will not only be dealt with through penalties. I am not sure I made myself clear.
Mr. Pat M. Saroli, Senior Economist, Trade Remedies and General Trade Relations Department of Finance: Honourable senators, under the Special Import Measures Act and the Canadian International Trade Tribunal Act, there is provision for disclosure of confidential information to counsel, subject to protective undertakings. Therefore, disclosure is a fact today. There is a discretion to disclose confidential information to counsel as defined in both the statutes.
In the bill before you, we have built in criminal penalty provisions for wrongful use of confidential information disclosed by the deputy minister to counsel under the Special Import Measures Act. There are parallel criminal penalty provisions in the Canadian International Trade Tribunal Act for the misuse of confidential information. Those are new; they were never there before.
There are also administrative law penalties now built into the CITT Act whereby the tribunal can bar counsel, or an expert, who has misused confidential information on a previous occasion from any further appearances before the tribunal for whatever period of time the tribunal considers appropriate under the circumstances.
"Firewalls" have also been built into both statutes that make it explicit that the information disclosed, notwithstanding any other act or law, can only be used in SIMA-related proceedings.
This is all new. We have built these protections into the statute to deter counsel, in the case of SIMA, and counsel and experts in the case of quasi-judicial tribunal proceedings under the CITT Act, from misusing confidential information. We have gone much further than the current law in protecting that information.
Senator Di Nino: Were the changes made because of problems that had been discovered in the past? If so, what were the problems?
Mr. Saroli: The problem, in essence, was that the Special Import Measures Act did not have any explicit penalties. For instance, when the deputy minister said, "Yes, we will grant disclosure to counsel, subject to protective undertakings," the Special Import Measures Act did not contain any explicit penalties if counsel misused that information.
Similarly, the CITT Act did not include any specific penalties for misuse of confidential information.
Off the top of my head, I cannot give specific examples of where this abuse has occurred. However, we felt it was appropriate to ensure that this did not happen, that penalty provisions were built into both statutes to deter counsel, and in the case of quasi-judicial tribunal proceedings, expert witnesses, from misusing confidential information.
Senator Di Nino: You are saying that the changes are a tightening-up of the legislation, as opposed to a response to instances of misuse of the information; is that correct?
Mr. Saroli: We felt compelled to proceed for that first reason. Another reason was for greater transparency, which was one of the themes that emerged from the parliamentary report.
The current practice of the deputy minister under the Special Import Measures Act is not to grant disclosure, except in those very rare circumstances where it is felt that the non-confidential summary is not sufficient.
In practice, this has translated into the deputy minister of National Revenue not routinely granting disclosure. One of the recommendations of the parliamentary report was for greater disclosure. The feeling was that if we were going to open up disclosure in the interests of greater transparency, then the quid pro quo, "the other side of the coin," if you will, was to build in appropriate sanctions for the misuse of the information. Therefore, we built in substantial penalties.
There is a hybrid offence built into both statutes, punishable on summary conviction or on indictment, depending on the severity of the misuse, by up to $1 million per count. Administrative law sanctions are also built into the CITT Act whereby the tribunal can bar an offending party from further business before it.
The Chairman: If there are no more questions, since we have already been through the bill, I ask the committee, shall clause 1 carry, stand part of the bill?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 2 through 65 stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title of the bill carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the bill as it stands be reported to the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, that concludes our work on Bill C-35, and the bill will be reported to the Senate.
Honourable senators, we turn now to 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.
I remind honourable senators that we had extensive testimony from the appropriate departments and agencies some time ago. Two senators then proposed that we consult with the Canadian Bar Association. That was done and the witnesses made a very helpful presentation to this committee. There were subsequent consultations between the Canadian Bar Association and the appropriate public servants, with the result that certain amendments, I am told, have been drafted.
I will ask our witnesses to explain the outcome of those consultations, and which specific clauses they propose to amend. It may well be that after the witnesses have given us a preview of the proposed amendments, we will stop and ask for more detailed explanations when we come to those specific clauses. Perhaps the witnesses could first explain where they now stand on this bill.
Mr. David Preston, Director, U.S. Transboundary Division, Department of Foreign Affairs and International Trade: Mr. Chairman, we welcome the opportunity to be here with you again. As you quite rightly said, we met with the CBA and had a very useful discussion. We reviewed the bill that was the subject of discussion at our last meeting. We participated in the drafting of some proposed amendments to that bill and provided the CBA with copies. We then discussed the amendments with them, and today we received a letter from the CBA dealing with the question of where we stand on the preclearance bill from their perspective.
I can assure you that the CBA was very helpful to us. Their suggestions brought a measure of clarity to certain clauses in the bill, and we have no difficulty in supporting amendments to clauses 16 and 33 specifically.
A number of other proposed amendments were part of the CBA's original submission to you. We think those have been dealt with, and a number of those were not raised again in the CBA's letter to us. I can go through those, if it is the wish of the committee. There are amendments to clauses 16 and 33, and a consequential amendment to clause 15. I could run through the logic of those amendments, but as I understand it, you would prefer that we leave that for clause by clause.
The Chairman: If the proposed amendments are sufficiently similar that a general statement might be helpful, we would like to hear such a statement. On the other hand, if the amendments are discrete, then there is no point in attempting to put together a single statement.
Mr. Preston: I will touch on the three sets of concerns raised by the CBA, and that we have supported as proposed amendments from the department's point of view.
Senator Carney: I am not clear on one point. The amendments we are talking about are not incorporated into this bill.
Mr. Preston: They have not been moved.
Senator Carney: They are not in the bill before us.
The Chairman: We can give them to you, if that would be helpful.
Senator Carney: I have a list from the Canadian Bar Association and I have the unamended bill. I do not have a piece of paper telling me what came out of that, which is what we need to follow, I believe. Am I correct in my assumption?
The Chairman: Some of us have been studying this bill, so we have one view. You have had other obligations, so you have another view. I am sure that anything that is helpful to you would be acceptable.
Senator Carney: I am asking you to clarify which of the papers before us are the amendments we are considering in this hearing.
The Chairman: I mentioned two possibilities. I said that if the amendments, even though they may not be to the same clauses, address the same basic problem, then the witnesses could talk about them together in a preliminary way.
Senator Carney: I heard you, Mr. Chairman, but I am wondering if this is the piece of paper that contains the actual amendments.
The Chairman: That has not yet been moved.
Senator De Bané: Our colleague, Rose-Marie Losier-Cool, the sponsor of this bill on behalf of the government, asked me to replace her today because she is sick. I gladly agreed.
Senior civil servants from the Department of Foreign Affairs and the Department of Justice are with us today. There are six of them, including the assistant deputy minister of Foreign Affairs. They have studied all the different suggestions and observations and have prepared comments on all the points raised by the Canadian Bar Association. On some issues, they have also prepared amendments that I will gladly move when I am authorized to do so by the chairman at the end of this exchange with the witnesses.
The witnesses have looked at all aspects of the points highlighted by the Canadian Bar Association. Some of them were found to be legitimate and have been addressed.
We had questions. For instance, would the U.S. Congress consider reciprocity? They are ready to cover the whole gamut of issues and tell you on which points they feel amendments are warranted. When the chairman allows, I will gladly sponsor those amendments, which have already been distributed.
The Chairman: You will take those amendments one at a time.
Does that answer your question, Senator Carney?
Senator Carney: My question was already answered when the amendments were identified for me. Thank you for taking on responsibility for such an important bill and for your remarks.
The Chairman: We are back to the witnesses.
Mr. Preston: The concern of the CBA on clauses 16 and 34 was that a traveller's refusal to answer a question could be interpreted as reasonable grounds to suspect that an offence had been committed and possibly trigger an obstruction charge. While it is not clear that the current wording would have that effect, we certainly think that, for the sake of clarity, the bill might be amended to make clear that if a person chooses to answer any question asked by a preclearance officer for preclearance purposes -- that latter part is important -- the traveller must answer truthfully. It provides a certain optionality there.
The second point concerns clarification that refusal by a traveller to answer a question asked by a preclearance officer does not in itself constitute reasonable grounds. We were seeking to clarify the nature of the obligation with respect to refusal to answer a question.
The second bundle of suggested amendments -- and this relates to some comments by the CBA on clause 16 -- deal with fact that the requirement to answer truthfully under 16(1), but not 16(2) or (3), could be interpreted as applying only to the examination of goods. Since answering a question truthfully relates to all preclearance laws -- that is, immigration, customs, agriculture, plant and health safety -- we support an amendment to separate the requirement to answer truthfully from the requirement to report and present goods.
Our most significant proposed amendment relates to clause 33. Travellers and third parties might unintentionally make a false declaration with respect to immigration matters. It was therefore suggested that the clause should express intent on the part of a traveller. As an example, someone arrives at an airport and is asked to answer a question. They unintentionally give a wrong answer because they do not understand the question. We suggest adding the word "know" to clause 33. That is, one must know that the statement is false. That clarifies that there must be intent by the traveller.
The second concern here was that there could be a provision that others had engaged in the process of advising the client on the false declaration. Amongst "others," they were thinking of business executives, and indeed of themselves as immigration lawyers, that they might themselves be guilty of an offence under the false declaration provision. We suggest deleting the words, "participates in or assents to the making of" a false declaration.
All of these are intimately related. The third question was on whether this should be a criminal offence. We have suggested, by way of an amendment, providing for a summary conviction offence only.
Finally, the CBA expressed a concern that travellers would not have access to legal counsel. Consequently, a regulation will be drafted under clause 8 to ensure that legal counsel has access to a client in the preclearance area if a detention or strip search occurs. That is the point at which the obligation to allow legal counsel kicks in. That answers the CBA's concern about whether lawyers can be present in the preclearance area. The answer is yes.
There were two other sets of concerns, as well as some issues in the original submission. One of the fundamental points raised by the CBA was the issue of the voluntary nature of the preclearance operation. The CBA was concerned that the individual have the right to walk away.
Certainly, within the regime that we have established, the traveller is indeed entitled to walk away. He comes up and asks questions; he is asked some questions; he changes his mind. As I mentioned before, we have amended this so that the mere asking of questions, or refusal to answer questions, is not, in and of itself, grounds to suspect someone. If indeed there is no suspicion on the part of the preclearance officer that the individual has committed an offence -- and he must have reasonable grounds for such a suspicion -- then the traveller is entitled to turn around and walk away.
However, if the officer does have reasonable grounds to suspect that an individual was committing an offence, should the individual be allowed to walk away in those circumstances? The reason for this is essentially related to maintaining the integrity of a border operation. If an individual attempts to come into Canada and decides not to proceed with the rest of the process, the customs officer can indeed detain that person for the purposes of a search on the grounds of reasonable grounds to suspect.
I need to deal with the question of detention and I will come back to that in a moment. The issue here is that the individual would be detained for the purposes of a search on the grounds of reasonable grounds to suspect. This is the same provision that applies at land borders, whether they are Canadian or American or other operations. We need consistency at border points and the ability to detain individuals, at least temporarily.
As an illustration, someone carrying a substantial quantity of drugs comes through customs with bulging pockets. The U.S. preclearance officer receives an "alert" on an individual. He knows that this individual is carrying drugs. If we were to accept the notion that the individual would be completely free to walk away, certainly this would undermine the border operation from our perspective. It is in Canadians' interests that someone who is demonstrably carrying drugs -- as in this illustration that I offer to demonstrate the consequences -- should not be allowed to walk away, and hence the notion of reasonable grounds to suspect.
I can then extrapolate from this to the notion of detention, which was another concern of the CBA. They were concerned about giving U.S. customs officers the authority to detain. The point is that they only have authority to detain for a very limited period, which is until they can turn the person over to a Canadian officer. In the case of a person suspected of carrying drugs, he or she would be turned over to a Canadian officer, who would himself establish whether there were reasonable grounds to proceed against this individual. In a sense, the levers still remain in Canadian hands in the event that this process unfolds in the manner described.
At the end of the day, it seems to me that we have a regime in which the Americans are given a limited set of powers relating to customs and immigration, and plant and animal health, as we described in our earlier session. Other powers are held by Canada, including the authority for strip searches, more intrusive searches, and the option to proceed under criminal law, which prosecution would take place in Canada. Thus we have a regime, as described in the bill, in which the Americans would have limited authority and the balance of authorities would be held by Canada. If you put together what the U.S. is able to do and what Canada is able to do, what we have done is create equivalency with a land border situation or with other customs and immigration processes. The idea here is to avoid creating a weak link in the fence.
We are arguing that we have a comprehensive package that, on a reciprocal basis, will ensure the integrity of our borders with respect to people wishing to enter from the United States. At the same time, it protects the rights of travellers under the Charter, including the right to counsel and the right regarding having committed a false statement knowingly. In sum, that addresses the two major concerns of the CBA.
They have written us a letter addressing two or three other points, and with your permission, I will deal with them as briefly as I can.
The Chairman: Please proceed.
Mr. Preston: This relates to provisions under clause 16. We only received this letter today. However, we were puzzled by parts of it and I must make some assumptions in the answer that I give you now. Clause 16 relates to the examination of goods, and they raise the question of suspicion, as to whether the criterion of reasonable grounds to suspect would apply in this case. The answer is that the U.S. has been allowed to inspect baggabe in Canadian airports since 1974. Passengers have agreed to this on a voluntary basis. This already exists, and therefore, if we are right in the assumption that the CBA was relating the suspicion to the goods, then the answer is that this is already existing practice and in conformity with Canadian law.
The second question related to the seizure and forfeiture of goods by preclearance officers, and whether it was appropriate for a U.S. officer to have that power. From our perspective, we believe that PCOs should be able to seize and forfeit to themselves property that is in contravention of U.S. preclearance law. After all, we are dealing again with this limited body of law that they are able to enforce. Seizure and forfeiture are integral to legislation dealing with inspection in both Canada and the United States. The point here is that these goods are en route to the United States.
A secondary point is that the seizure and forfeiture has limits in its application, in that if the goods are required as evidence for a criminal prosecution in Canada, then they would be surrendered to Canada for that purpose. For example, in the case of undeclared jewelry, it would depend on whether the individual was attempting to smuggle personal goods or stolen goods. Goods suspected of being stolen would be referred to Canadian authorities, who would decide whether or not to prosecute. If Canada decides not to prosecute or if the goods were personal, the U.S. may seize the goods, which could either be mitigated through payment of a fine, in which case the goods would be returned to the person, or forfeited to the U.S. The objective is to try to keep what we are doing here consistent with what is already Canadian practice. There was a very strong desire that in giving specific authority to the U.S. officers, those authorities be the same as those given to Canadian customs officers where appropriate, and as I mentioned earlier, we did not give them to them all.
The other query in the letter from the CBA relates to materiality in clause 33. You will remember that this is the one that applies if you make a false declaration. They were looking for an assurance that the individual can only make false statements in relation to his own entry or the entry of his goods into the United States. Under the scheme, since it is a Canadian offence, it would ultimately be handled by a Canadian officer. It is abundantly clear -- including from the way that the Americans are training their officers -- that they are not to seek to use false statements in matters which are not related to the person's entry into the United States. Furthermore, if that person were turned over to the Canadians, I believe the intent of the bill is that the Canadian authorities would proceed only if the false declaration was relevant to the traveller's entry into the United States.
Those are the specific issues that the CBA raised with us, the amendments we have discussed with them, and some subsequent comments we have sent to them.
I can assure you that, in this process of review, we went through the entire submission they made to you very carefully, and there were a number of other things that the CBA has not raised again. Since it was not raised in their letter, and since they gave us that assurance in the letter that they sent to us, we have taken it that our amendments do address some of the central concerns contained in their submission with respect to proposed sections 16, 33, and 34. Then they address these other four issues I have just mentioned.
If you wish, I would be happy to provide you with the full text of our review of other provisions raised earlier by the CBA, but which do not seem to be current concerns.
Senator Carney: This is a very complex bill, and I have two questions. I was interested in the comments by the Canadian Bar Association indicating that parts of the original bill did not provide for reciprocity with the U.S.
This committee was told by officials that, without exception, there was reciprocity with the U.S., and that in every aspect of the bill, the Americans have the authority to proceed in the same manner. The CBA has indicated that that assurance to this committee was not accurate.
Your comments about equivalency and reciprocity are, in my mind, slightly confused. Are you telling us that as far as everything in this bill that deals with matters in Canada are concerned, the Americans have the authority or reciprocal responsibility to do likewise? I ask you to keep in mind that Canadians are crossing the border both ways.
Mr. Preston: The answer to that question is yes. Not only have we had assurances of reciprocity from the U.S., their legislation states that reciprocity shall be provided in equal measure -- and I do not have the exact language in front of me -- to that which the host country is willing to provide. If we are willing to provide "X" amount of authority, they will provide it in reverse.
Senator Carney: You can understand that it is a little unsettling for the committee to be assured that there is reciprocity when the bill is first presented, and then have the Canadian Bar Association point out that it does not have symmetrical reciprocity.
Mr. Preston: We have both had assurances from the United States. The reading from our lawyers is that it is in their law. We are negotiating an amendment to the 1974 agreement with the United States. In the agreement, the Americans will once more reconfirm that they will provide reciprocity in equal measure to that which we provide to them.
Senator Carney: What is the nature of this commitment, since it is clearly not legislated?
Mr. Preston: The point is that the U.S. bill provides for reciprocity. We need to be able to tell the Americans what we are prepared to provide so that they can fulfil the specifics of their obligation. The powers will be reciprocal in identical nature to what we have.
In the course of our two-year negotiation with the U.S., we both ran everything we were doing through the reciprocity test. For example, we said, "If this is something that we are prepared to offer you in the way of authorities for preclearance officers in Canada, would you be able to provide that authority to us in the United States"? The answer was yes. The Americans would not have gone through that negotiation and concluded an agreement and agreed on the text that we discussed at the time if they were not willing to provide that on a reciprocal basis.
Senator Carney: That is a much clearer statement than we received earlier.
I want to ask you a question about the suggested amendment of clause 33. It is much weaker than the one in the bill. Clause 33 states:
Every person who makes, participates in or assents to the making of a false or deceptive oral or written statement to a preclearance officer...
(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) is guilty of an offence punishable on summary conviction.
I understand from the materials provided that the CBA had a problem with that, but the suggested amendment is much weaker. It suggests that if people make a false statement, they are guilty of an offence punishable on summary conviction and liable to a maximum fine of $5,000. Later, it says that a term of imprisonment may not be imposed for default of payment of a fine imposed and that an offence under proposed subsection (1) does not constitute an offence for the purposes of the Criminal Record Act.
Why is the original bill so watered down? What happens to someone who lies to a preclearance officer and is assessed a fine and does not pay? According to this, there is no imprisonment. Why was it watered down and what will happen?
Mr. Preston: The answer is twofold. First, that was what the CBA was looking for. They were particularly concerned, in the first instance, with respect to the participating in or assents to, that that be eliminated from the package. As I mentioned earlier, we added the word "knows."
They were also concerned about having a criminal conviction for making a false statement. Essentially, this is in response to what the CBA was looking for from us. Subsequently, when they say that the amendments are welcome and that they support them, this is specifically what they are supporting.
The second thing I will mention is that when you get into a case of a false statement, that is really the mechanism by which, under Canadian law, we provide that a person may be searched. In that event, a couple of things could happen. More particularly, it means that that individual, in the case of a search, would be turned over to a Canadian. The Canadian would search the individual. If they found evidence of a criminal act, then the person would be prosecuted for a criminal offence. In effect, the false statement, if you like, is a secondary sanction in addition to something that could potentially be a good deal more serious. In the event they search the individual and discover nothing, the individual might then be fined up to $5,000 for making a false statement. However, one would need to work through what the nature of the false statement was and the nature of whatever offence might occur under that. It is difficult to see the false statement operating on its own.
Senator Carney: What happens if a person makes a false statement, is assessed a fine of $5,000, and does not pay? There is nothing that addresses that. Clause 34 goes on to deal with obstructing an officer. I cannot see anything about what happens to someone who defaults.
Mr. Preston: Part of the issue here is that this is a Canadian offence, as I mentioned earlier, and parts of the Criminal Code allow for the collection of fines. The sense here was that there was no need for a provision in the preclearance act to reinforce that.
Senator Carney: Why was it in the original bill? I find it a bit worrying that the bill has been watered down and that there does not seem to be adequate enforcement of the penalty that is being proposed as an amendment.
The Chairman: Am I correct that you have just told us that adequate provision is made elsewhere in Canadian law, specifically the Criminal Code, for dealing with precisely that kind of situation?
Mr. Preston: That is my understanding. I should also add that the CBA was concerned from a legal perspective about the way it was framed in this particular piece of proposed legislation. It is, in fact, covered elsewhere.
The Chairman: That would seem to deal with that particular point.
Mr. Preston: Yes.
Senator Carney: I do not want them picking on us in the other place for sloppy and incoherent wording in a bill introduced in our House.
Mr. Preston: The reciprocity test is an interesting one. In the United States, a reciprocal penalty provision for a false declaration would be used primarily to support the authorities of Canadian officers, the individual would then be turned over to the U.S. authorities. The consequence for making a false statement there could be a jail term.
Senator Di Nino: I am not sure that the question on this issue of reciprocity was answered to my satisfaction. Your comment of 30 seconds ago leads me to believe that when we finally see the American legislation, and I have not heard that we have, it may not mirror the Canadian legislation. It may not be able to mirror the Canadian legislation because we are dealing with different sets of laws. That issue is still up in the air.
The Chairman: Before you go on, would you look at the coming-into-force clause of the bill?
Senator Di Nino: That was an answer given by the CBA; however, they were not satisfied either.
The Chairman: The Governor in Council could wait to see the provisions of the U.S. enactment.
Senator Di Nino: That is an issue we will have to deal with when it comes about. I am not sure they can answer that.
Mr. Preston: One is always in peril when quoting U.S. law, as we all know. I say this with a great deal of temerity, because I am not a U.S. lawyer and clearly it is an issue for the Americans. The understanding with the Americans is that they will provide reciprocity. A section of the U.S. act on immigration and nationality allows that the Attorney General may authorize officers of a foreign country to be stationed at preclearance facilities in the United States for purposes of ensuring that persons travelling from or through the United States comply with that country's immigration and related laws. These officers may exercise such authorities and perform such duties as United Sates immigration officers are authorized to exercise and perform in that foreign country under reciprocal agreement.They are to enjoy such reasonable privileges and immunities necessary for the performance of their duties as the government of their country extends to United States immigration officers.
Senator De Bané: It is very clear.
Senator Di Nino: Let me go back to the issue of a traveller refusing to answer a question. We use the expression "he is free to go." Let me understand what happens if this individual refuses to answer a question from a U.S. immigration officer and decides to walk away. What happens to him, according to this piece of legislation?
Mr. Preston: He walks back out through the preclearance site and through the duty free area. If he goes through the duty free area, he might be obliged to go to customs and declare the goods.
Senator Di Nino: I am talking about a traveller intransit. Do we put him back on the plane and send him home?
Mr. Preston: That is correct. He has choices. He could either apply to enter Canada, or he could get back on a plane and return to wherever he came from.
Senator Di Nino: I am correct in assuming that if someone intransit refuses to answer a question from a U.S. immigration officer, we are now stuck with him?
Mr. Preston: The U.S. may refuse to preclear the passenger if they refuse to answer a question.
Senator Di Nino: We are now stuck with him as if he had landed here. He or she must go through the Canadian system and try to enter Canada. If we refuse him entrance, we put him on a plane and send him home.
Mr. Preston: That is correct.
Senator Di Nino: The Charter would then apply. They could then say, "I am a refugee", right?
Mr. Preston: That could happen.
Senator Di Nino: You state that a term of imprisonment may not be imposed. I am not a lawyer so I will defer to my colleagues, but "may not be imposed" does not mean it will not be imposed?
Mr. Preston: I must consult with my lawyers on that one.
The Chairman: Does "may" mean "can" in this instance?
Ms Lucie Angers, Counsel, Criminal Law Policy Section, Department of Justice: From the way it is drafted, it is clear that it should be read as "can." It is also clear because of the way section 787 of the Criminal Code is worded. That section says that there is imprisonment if you decide not to pay the fine. This provision goes against what is provided for in section 787(2) of the Criminal Code, and therefore it is clear that the "may" should be read as a "can."
Senator Di Nino: Notwithstanding section 787(2) of the Criminal Code, it says that a term of imprisonment may not be imposed, and to me that means that it can be imposed. We heard a moment ago that it will not be imposed, unless I misunderstood.
The Chairman: The problem relates to the meaning of the word "may." As the witness has said, "may not" means cannot. There is nothing suppositional in the word "may" there, is that correct?
Ms Angers: Yes, that is exactly the case.
[Translation]
As Senator De Bané mentioned, the text notes that notwithstanding section 787.2 of the Criminal Code, a term of imprisonment may not be imposed for default of payment.
[English]
It is more a case of that is the word that the drafters chose.
The Chairman: The explanation is that in earlier times, it was thought to be impolite to tell Her Majesty and Her Majesty's ministers what they could impose by way of penalties and so on, so they used the word "may." It was a gentler way of accomplishing the same purposes.
Senator Di Nino: I have a couple of quick points on the question of materiality. From my own personal experience in completing the required forms when clearing customs, I sometimes find it difficult to give an honest answer to a question such as, "Why are you going to the U.S.?" If I am attending a human rights conference in Washington, it is not personal and it is not business. I am not conducting business. I am there on a personal basis to learn about an issue in which I have an interest.
There may be a need to ensure that the offence really is material before some punishment is applied, or before one is rejected as a potential entrant into the U.S. Why would you not accept the word "material" in your amendments?
Mr. Preston: Of course, in such a case, because the false declaration is a Canadian provision, the individual would be turned over to a Canadian, who would make the determination that, because you described going to a human rights conference as business when you were really going for pleasure, or vice versa, clearly that is not an essentially false statement. Canadians would not be likely to prosecute for such a non-material problem.
Senator Di Nino: But I could be denied entry into the U.S. to conduct my affairs.
Mr. Preston: With respect, you do not have an automatic right to enter the United States. You must be able to provide reasonable justification for doing so. Our collective concern is that individuals not be tripped up for making false statements that are not material for that purpose.
Senator Di Nino: Would you tell me the meaning of your proposed amendment:
That Bill S-22, in Clause 15, be amended by replacing line 1 on page 6 with the following:
Reporting goods
"15. (1) Every traveller reporting to a preclear-"
Mr. Preston: It is editorial in nature. The underlying concern is that the requirement to answer truthfully in subclauses 16(2) and (3) could be interpreted as linked to subclause 16(1) only, the examination of goods. We wanted to separate the requirement to answer truthfully from the requirement to report. We have combined the two and put them in this form.
Senator Grafstein: Since we have dealt with the specifics of the Canadian Bar Association's concerns, I have one general question directed to the Justice officials. Have Justice officials now signed off, to satisfy us, in effect, that the bill now conforms to the Charter?
Normally, Mr. Chairman, in the Standing Senate Committee on Legal and Constitutional Affairs, we assume that, as a precondition for any bill coming forward, it has been independently signed off by the Department of Justice. We do not want to see their opinion, we just want to know that in fact the bill conforms to the Charter.
Mr. Tom McMahon, Counsel, Department of Justice: Yes, we certainly believe that this bill conforms with the Charter.
Senator Grafstein: I do not wish to be devious about this, but I would have characterized my question as requiring a fuller answer.
As a little background on the question of privacy, we were told by the Privacy Commissioner that the Charter provision for the right to privacy was excluded. I then did a bit of research and came across the case of Regina v. O'Connor in the Supreme Court of Canada, and the decision of Justice L'Heureux-Dubé. I am referring to 103 Criminal Codes, 53, a subsection entitled "Right to Privacy." I should have asked this question of the commissioner. This is what Justice L'Heureux-Dubé wrote in her decision:
This court has on many occasions recognized the value of privacy in our society. It has expressed sympathy for the proposition that section 7 of the Charter includes the right to privacy.
I wish to be specific about this. Under clauses 31 to 38 of the bill, a preclearance officer can ask for a great deal of information, as we have heard in previous testimony. The nature of that information is yet to be determined because it is to be prescribed in regulations.
Then we have the interesting provision under clause 36, which I assume is based on reciprocity, that no action or other proceeding of a civil nature may be brought against a preclearance officer in respect of anything that is done or omitted to be done by the officer under this legislation.
For the moment, let us deal with the notion that information of a highly private nature is prescribed for the purposes of travel. Since travel to the United States is a privilege as opposed to a right, we may end up with a tremendous amount of information, and I do not quarrel with that. If the officer abuses that information and discloses it for non-travel purposes, no action or proceeding can be brought against him for breach of privacy.
I am not clear whether clause 36(1) allows an action of a civil nature to be brought. That clause states:
An action or other proceeding of a civil nature, in which the United States is not immune under the State Immunity Act from the jurisdiction of a court in Canada, may be brought against the United States in respect of anything that is, or is purported to be, done or omitted to be done within the scope of their duties by a preclearance officer.
It strikes me that we have extensive information to which an officer, or even any person who assists an officer, is privy. It all goes into a computer. That information is utilized other than for the purposes of clearance. It is an abuse of that person's right to privacy, but there is no penalty for that abuse save a possible civil action.
I am not sure I can accept the proposition that the right to privacy is as protected under the Charter as the Supreme Court of Canada says it is. However, accepting for the moment that it is currently protected, and expanded by the common law, have we satisfied our responsibility to ensure that the right to privacy is not abused?
That is a convoluted question. Has the right to privacy been properly protected in this bill?
Mr. McMahon: Certainly there is a right of privacy in the Charter. You are referring to R. v. O'Connor, which raises rights of privacy under section 7 of the Charter. Section 8 of the Charter gives a right of privacy in a much more direct way. This bill contains proposed section 32, which limits the use and destruction of passenger information, and it contains a duty to protect information. The bill itself has protections.
Concerning prescription by regulation, clearly the government would not be prescribing personal information to be collected and shared if it felt that the information it was prescribing would constitute an unconstitutional deprivation of privacy. There are those protections and then over and above there is the Charter, which offers its own protections separate and apart from what is contained in this bill. A series of protections is available.
Senator Grafstein: The first section is an interesting way of drafting. If you take a look at the "whereas" in Bill S-22, the last recital, it states:
AND WHEREAS the administration of any provision of American law in Canada is subject to Canadian law, including the Canadian Charter of Rights and Freedoms,...
It seems to me reasonably clear that the Charter applies in its recital. How does one enforce the abuse of a right of privacy by an American officer with respect to a Canadian? That is the question. I ask myself: Does proposed section 36(1) provide at least a civil right here? I am not clear whether it does or not. Take a look at proposed section 36(1).
Mr. McMahon: My understanding of the intent is that whatever actions may lay against the U.S. Customs and Immigration would lay against the U.S. government as opposed to the individual officers. We would expect that the abuse would be curbed in a hurry if the U.S. government found itself compromised. In addition, if problems did arise, there would be discussions on a political level between Canada and the United States. That would be another method of dealing with the problem.
To be perfectly frank, you have stumbled on an issue that raises some interesting questions to which we simply do not have the answer right now in terms of jurisprudence. How will the Charter apply exactly; where does the remedy lie; and what kind of action will be involved? Those are questions that we have tried to set out as best we can here but future jurisprudence will tell the tale.
Senator Grafstein: At this juncture, is the Department of Justice satisfied that the right of privacy regarding information about Canadian citizens is appropriately protected under the Charter as extended by the Supreme Court?
Mr. McMahon: I believe the answer is "Yes. It is protected in the bill in a number of places, for example, in proposed sections 32 and 35.
Senator Grafstein: Is that the department's opinion?
Mr. McMahon: Yes.
Senator De Bané: I wish to stress to my colleagues that besides the two distinguished lawyers from the Department of Justice, we also have with us two legal counsel from the Department of Foreign Affairs and International Trade and Justice Legal Services Division, namely Ms Caron and Mr. Harris.
If you would like to comment on the important issues raised by my colleagues, please do so.
Senator Grafstein: Once we have an opinion from Justice on this matter, I will be satisfied. We will dispute the opinion if we must. I have heard the opinion and I am comfortable that we have satisfied a precondition for the approval of this bill because Justice has signed off -- both on the narrow Charter issues and the broader rights of privacy issues. I do not need confirmation from other counsel.
Senator De Bané: There are only two departments in Ottawa that are allowed to have their own lawyers: Defence and Foreign Affairs. To my knowledge, they are the only two departments that have the right to have their own lawyers besides Justice. However, if you do not wish to question them, there is no problem.
The Chairman: Whose opinion do you now want?
Senator De Bané: I thought perhaps Ms Caron or Mr. Harris wanted to add to that interesting issue raised by my colleague concerning the fundamental right to privacy.
The Chairman: You are asking for a response from Ms Jacqueline Caron, Legal Counsel, Criminal Law, Privileges and Immunity Section, Department of Foreign Affairs and International Trade.
You have heard the question put by Senator De Bané. Would you reply, please?
[Translation]
Ms Jacqueline Caron, Counsel, Criminal Law, Privileges and Immunities Section, Department of Foreign Affairs and International Trade: When it comes to matters of this nature, namely whether the Charter applies or not and what recourse is available, we look to the Justice Department to supply the answers. In this instance, my colleague has provided the appropriate response and I have nothing further to add.
[English]
The Chairman: We have not heard from the witnesses representing the Department of Revenue Canada. Do you have anything to add on this point?
Mr. Stephen Barry, Counsel, Legal Services, Department of Revenue Canada: I have nothing to add. I would defer to the Human Rights Law Section of the Department of Justice, for it has a particular expertise on the subject.
Senator Di Nino: A comment was made that Senator Grafstein stumbled on to a point. Senator Grafstein does not "stumble on to points," he researches them very well.
The Chairman: I doubt that we can settle that argument here.
Senator Corbin: I wish to follow up on a matter raised by my colleague Senator Di Nino with respect to walking away from U.S. customs in a preclearance area.
It is something I had intended to raise; however, I raise this in the light of some work we did this summer on the Security and Intelligence Committee of the Senate. U.S. authorities sometimes point to Canada as being a pipeline for terrorists or terrorist elements into the United States. This bill deals with immigration and a number of other things, which remain unnamed. Surely terrorism is one of them.
Were you telling Senator Di Nino earlier that if a passenger disembarks from a flight from London or Bombay or wherever, goes up to the U.S. customs and is asked questions that suggest that he is part of a terrorist conspiracy, that he may just walk away and you will put him back on the plane?
No one will nab this person? He will return scot-free to wherever he came from? The Canadian authorities will not be alerted? The Americans cannot do a thing about it; he just walks out?
Mr. Preston: If, indeed, we are talking about terrorists, you could not arbitrarily detain someone unless you had reasonable grounds to suspect that he were a terrorist. However, I can assure you that in the event that this individual was a terrorist and that there was an alert, certainly the U.S. would be very interested in him in the first instance. In that case, depending of course on the evidence the individual had, they would have reasonable grounds to detain that individual and turn him over to Canadian authorities, absolutely.
In the event that they did not know the person, or did not suspect that the person was a terrorist, they could not do so. It is a burden of proof that applies. In effect, the individual must go back through the Canadian process in any case because he has landed in Canada. Once the person goes through the Canadian process then one could, again, detain him. If the person got through the first one, and the Canadians had better information than the Americans and we knew at that point that he was a terrorist and we had evidence, they would need to go through the process in Canada.
Senator Corbin: The point is that the American and Canadian officials do not know that he is a terrorist, however, the individual senses that his identity as a terrorist could surface by too much questioning, so he walks away. The walking away part that Senator Di Nino raises is what concerns me. You simplified it by saying that he can go back to the duty-free area or he can take the next plane back. It is not that simple, is it?
Mr. Preston: No, it is not that simple. There is a distinction between someone who is intransit and a passenger of Canadian origin going through preclearance. The latter is not a terrorist. There are no grounds to suspect that he is guilty of any offence. That individual would be entitled to head back to Canada and, as I mention incidentally, if he picked up duty-free goods on the way in, he must return the goods. That is an aside.
If someone is coming through intransit, there may be reasonable grounds to suspect that that individual is a terrorist or there may not. If there are no reasonable grounds and the individual chooses to walk away, then I suppose on the basis of law that no one should be permitted to detain that individual unless they had reasonable grounds to do so.
Senator Corbin: I have just one picayune question. It is probably so simple it does not deserve to be asked. However, there is nothing in this bill to prevent an intransit passenger who has cleared U.S. customs in this facility in Canada from being submitted to another inspection and questioning once he reaches the U.S. Is that correct?
Mr. Preston: That is correct.
Senator De Bané: Mr. Preston, this question goes beyond this bill. Have you thought about establishing an information program to teach Canadians about their rights and where they can go to get more information or to make a grievance, et cetera? Can you tell us about that?
Mr. Preston: Yes, I would be delighted. That is an important, even essential, part of what we are trying to achieve here. We have worked very hard with our colleagues in the United States as we worked through this process. In the first instance, there will be training for U.S. officers before they go on the line in Canadian practices. The intention is to post appropriate signage, making people aware of what their rights and obligations are. The notion of rights and obligations is very important.
We have had individuals in the past who have gone through preclearance. I can assure you that we have certainly had very strong reassurances in the form of a letter from the American ambassador here that he will take a personal interest in problems that emerge at the border. We have had excellent cooperation from the embassy in investigating the circumstances that apply in the case of individuals who have a grievance. Of course, ultimately, if there is an egregious offence, the matter could be taken to court.
The objective here is to ensure that people understand their rights and obligations. They also need to understand that in going into a preclearance area, they must answer the questions truthfully. One speaks of obligations; they would be obliged to do that. Yes, part of this, and this is the detail we are working on, is that there will be a complaints procedure so that an individual who has a grievance would be able to address his concerns to someone.
I hope we have answered your question in that regard.
The Chairman: Honourable senators, I see no other senator wishing to ask questions. Accordingly, let me ask if I am correct in thinking that Senator De Bané has four amendments to propose, and those are to clauses 15, 16, 17 and 33. Is that correct?
Senator De Bané: Exactly, Mr. Chairman.
The Chairman: Let us begin our work on the clauses.
Shall the preamble stand over?
Hon. Senators: Agreed.
The Chairman: Shall the title stand over?
Hon. Senators: Agreed.
The Chairman: Then shall clauses 1 through 14 stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Now we come to clause 15. Senator De Bané.
Senator De Bané: I should like, Mr. Chairman, to propose that Bill S-22, in clause 15, be amended by replacing line 1 on page 6 with the following:
Reporting goods
15. (1) Every traveller reporting to a preclea -
The Chairman: Yes, and then it carries on.
Senator De Bané: Exactly.
The Chairman: What you have done there is to insert (1) after the clause number. That implies, does it not, a second subclause, or at least a second one? Is there a (2) in the bill that is being amended?
Ms Caron: It is in the amendment. If you carry on, you come to subclause 2.
The Chairman: All right, thank you.
All those in favour of the proposed amendment?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator De Bané?
Senator De Bané: I move that Bill S-22, in clause 16, be amended by replacing, (a) line 6 on page 6 with the following:
Examination of
goods
" (2) If requested to do so by a preclear-"
(b) lines 13 to 19 on page 16 with the following:
Answers to
questions
"16. (1) If the traveller chooses to answer any question that is asked by a preclearance officer for preclearance purposes the traveller must answer truthfully.
Refusal to
answer
(2) If the traveller refuses to answer any question asked for preclearance purposes, the preclearance officer may order the traveller to leave the preclearance area.
Refusal to
answer not
grounds for
suspicion
(3) The refusal by a traveller to answer any question asked by a preclearance officer does not in and of itself constitute reasonable grounds for the officer to suspect that a search of the traveller is necessary for the purposes of this Act or that an offence has been committed under section 33 or 34".
The Chairman: You have heard the proposed amendment. All those agreed?
Hon. Senators: Agreed.
The Chairman: Contrary minded?
Senator De Bané: That Bill S-22, in clause 17, be amended by replacing line 24 on page 6 with the following:
"16 (2) and the Canadians officer is authorized."
The Chairman: Any problem with the proposed amendment?
Ms Caron: If I may, Mr. Chairman, you have taken the text of clause 17 as it stands now and you have replaced clause 16(3) in the last but one line by 16(2), because since clause 16 has been amended, what was subsection (3) is now subsection (2). That is the only change.
The Chairman: Shall the amendment be carried?
Hon. Senators: Agreed.
The Chairman: All right. Will clauses 15, 16 and 17 as amended stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: We have no proposed amendments for clauses 18 to 32, so I ask, shall clause 18 through clause 32 stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Agreed. Now clause 33, Senator De Bané.
Senator De Bané: Final amendment. That Bill S-22, in clause 33, be amended by replacing lines 14 to 24 on page 10 with the following:
False or
Deceptive
statements
"33. (1) Every person who makes an oral or written statement to a preclearance officer with respect to the preclearance of the person or any goods for entry into the United States that the person knows to be false or deceptive or to contain information that the person knows is false or deceptive is guilty of an offence punishable on summary conviction and liable to a maximum fine of $5,000.
No imprisonment
on default of
payment of fine
(2) Notwithstanding subsection 787 (2) of the Criminal Code, a term of imprisonment may not be imposed for default of payment of a fine imposed under subsection (1).
No criminal
record
(3) An offence under subsection (1) does not constitute an offence for the purposes of the Criminal Records Act".
Senator Grafstein: Just for the record, my colleague, Senator De Bané, did not say subsection 3. I think the record should be clear that he refers to subsections 1, 2, and 3.
Senator De Bané: Absolutely right.
The Chairman: I ask honourable senators if the amendment is acceptable.
Hon. Senators: Agreed.
The Chairman: Shall clause 33 as amended stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Then shall clauses 34 through 39 stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Shall the schedule to the bill stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Shall the preamble stand as part of the bill?
Hon. Senators: Agreed.
The Chairman: Shall the title of the bill carry?
Hon. Senators: Agreed.
The Chairman: Shall I report the bill as amended?
Hon. Senators: Agreed.
The Chairman: I want to thank the witnesses for their help. It is a complicated matter; however, you have succeeded in educating us to some extent. Before anyone leaves, I want to correct something I said earlier. I said that Senator Carney had not been able to attend the last few meetings of this committee because of other obligations. That was as much as I knew when I spoke. Senator Carney has been hospitalized twice in the last months and has asked me, quite understandably, to correct the record. I want the senators to stay, and we will report the bill forthwith. I have called an in camera meeting because of the motion that Senator Lynch-Staunton proposes to move this afternoon concerning NATO and Canada's peacekeeping role. He will move that motion shortly.
I am anxious, if the motion carries, as I assume it will, that this committee go to work on it immediately. Assuming we have the motion, I will be asking for authorization to put our staff and those who will be assisting us into action immediately. This is a very important question at this time in view of what is happening in the former Yugoslavia. It will ill become us to leave Ottawa for the Easter break if we have not done everything we possibly can relative to this matter prior to our departure. That is the purpose of the in camera meeting. If, on the other hand, he does not move his motion tomorrow, I will be in touch with you to cancel that in camera meeting.
Senator Grafstein: If in fact he does it on Thursday, I believe we will retain the same arrangements. I understand your sense of emergency, and I agree with that. We should use the break period to get ourselves organized and move ourselves into hearings as quickly as possible. Otherwise, we will come out with a report that will be somewhat redundant.
The Chairman: That is a real danger. I am seconding his motion. However, as I said, the proceedings of the Senate on other matters went on and on. For all I know, they are still going on. I believe it is his intention to move it tomorrow; however, tomorrow will be a broken day in the Senate. He may not get to it until Thursday. I hope he will be able to move it before we go away because it will look bad to leave that important matter hanging until after a two-week break.
Senator Grafstein: Assuming it is not tomorrow but Thursday, could we still not meet in camera tomorrow in anticipation of a motion to give you de facto approval to proceed? No one on either side will disagree with you in principle.
The Chairman: That is a helpful suggestion, but I need some guidance, as does the staff, as to the dimensions of the mandate that we are given and to what we will do. For example, I have been reading the history of the former Yugoslavia during the last 10 years in a book provided to me by Senator De Bané. I assure you that it is very complicated. There is no need for the committee to go through the many moves that have taken place in the former Yugoslavia, and that is the intention of Senator Lynch-Staunton's motion. Certain things should be defined as being in our work, and certain matters should be excluded right from the beginning. That is what I wish to talk with you about, and I believe that will be helpful to our staff because they wish to get on. We want them to get on with preparations for the committee's meeting on this particular reference.
Senator Corbin: You indicated that you will be speaking to the motion. You are supporting it. Surely you and Senator Lynch-Staunton will facilitate our task by setting certain parameters, and we will take it from there.
The Chairman: Yes. However, even if we try our best, it may well be that in the Senate itself, senators may wish to address questions to the primary mover of the bill, Senator Lynch-Staunton, or perhaps to myself.
Senator De Bané: May I suggest that if you decide to have hearings, you might consider having as a witness Professor Halstead from Carleton, a former Canadian ambassador to NATO.
Senator Grafstein: Unfortunately, he is dead.
Senator De Bané: He came to our committee and made a very good analysis of NATO.
The Chairman: I am sure that we will appreciate any help you can give us with regard to potential witnesses.
Senator Grafstein: John Halstead made a very long statement with respect to NATO before the Foreign Affairs Committee, that meeting that we had on the other side, so we do have his last statement about NATO. That will be useful.
Senator Di Nino: To continue on Senator Grafstein's point, I believe we should have the meeting tomorrow, regardless. The motion should have been passed this evening. If not, it will be passed tomorrow or Thursday. I suggest that we meet and have an opportunity to express our views. I would be happy to suggest that the steering committee, in effect, take over from there, if we are not able to do that. You can do that by telephone or fax or what have you. However, I think we should still meet.
The Chairman: I ought to have mentioned this point earlier. We had the copy of the letter from the Canadian Bar Association relative to the proposed amendments to Bill S-22, the act regarding preclearance. It might be helpful, since the bill is going to the other place, that we append that at the appropriate point in the record of this committee's meeting. Is it agreed?
Hon. Senators: Agreed.
Senator Di Nino: I have one other quick point, more an observation, and I trust that it is not taken as criticism. It is very difficult to schedule meetings at 3:30 on a Tuesday afternoon. It is really the only day that we have an opportunity to engage in debate. Wednesday is a short day, and you know what happens on Thursday afternoon. The pressures are there.
The Chairman: You understand that we are on the record.
Senator Di Nino: I have no problem with that. To try to schedule a meeting without approval to meet while the Senate is sitting on Tuesday afternoon will likely be as frustrating as it was for you this afternoon, and that may be something we should revisit.
The Chairman: You will not get any objection from me. If there is nothing else, we will adjourn.
The committee adjourned.