Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 15 - Evidence
OTTAWA, Wednesday, February 18, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-18, to amend the Customs Act and the Criminal Code, met this day at 4:00 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our witnesses this afternoon are officials from the Department of Revenue Canada.
Please proceed.
Mr. Paul Girard, Interim Director General, Contraband and Intelligence Services Directorate, Customs and Trade Administration Branch, Department of Revenue Canada: Honourable senators, in one capacity or another, Ms Tracy and I have been involved with this bill from policy to the stage we are at today. That is why we appear before you. We would like to say a word about the importance of the bill to Canadians and to Customs officers in the field. We would then be pleased to respond to questions.
This bill is one of the most important initiatives that our department has undertaken in many years. The proposed legislation bridges a serious enforcement gap that has existed at Canada's borders for some time.
At the present time, Customs officers are powerless to deal with serious criminal offences, such as impaired driving and abduction, when they encounter them at border. When I say "at the border," I mean at the frontiers of Canada, be they the land borders or the airports. I am referring to the first point of entry.
[Translation]
Even though the officers deserve praise for the help they give to police, their efforts are severely limited owing to their lack of legislative authority. Bill C-18 will give them the legislative authority they need to fully contribute to the department's protection mandate, a mandate that we take very seriously.
Under the proposed new measures, officers will be able to detain, and where necessary, arrest persons suspected of having committed or of being in the process of committing a criminal offence.
[English]
In the case of impaired driving, for example -- an offence that has been of serious concern to Canadians at large -- this bill will authorize Customs officers to detain suspects and administer the alcohol screening test. This is the "red, yellow, green" small box which is the roadside alert. It is not the breathalyzer. That will continue to be done by licensed technicians. Individuals who test high will then be detained and turned over to the police.
The proposed legislation will also empower them to arrest individuals who are the subject of outstanding warrants and turn them over to police authorities for follow-up investigation and prosecution.
[Translation]
We want to make it clear that the aim of this initiative is not to turn our officers into police officers. We merely want to give them the opportunity to be a further assistance to the police by granting them the authority to intervene immediately went in the course of their regular duties, they discover that a criminal offence has been committed.
[English]
The power of arrest is not new to Customs officers. They already possess this power. However, they can only exercise it with respect to Customs offences. This bill broadens this power so that it can be applied to other federal criminal offences. It fills, as I said earlier, a rather significant enforcement gap at the border. We have no power to detain impaired drivers; we have no power to detain people who are in possession of stolen property -- which is usually the vehicle they are in <#0107> or who are suspected of abducting children or who have outstanding criminal warrants. We have no option at present but to wave them down the road.
The proposed legislation will require a great deal of careful preparation, and the health and safety of all of our officers is of paramount concern. Prior to taking on this new role, the department has committed to implementing enhanced training in self-defence and the use of force. We are also committed to training designated officers in the identification of Criminal Code offences and related jurisprudence.
There will be an implementation period once the legislation has successfully cleared both Houses and received Royal Assent and proclamation. That period will allow us to ensure that our officers are fully equipped to deal with the implications of this bill.
Over the next several months, the department will also undertake to ensure that its port facilities are properly equipped with appropriate holding cells in order to ensure that suspects may be held safely and away from the general public. I do not wish that statement, in and of itself, to sound somewhat alarming. Most of our facilities already have holding cells in relation to the fact that our Customs officers currently do have powers of arrest, but we have to ensure on a national basis that we have these holding cells. We cannot always choose where these individuals may enter Canada so we must be consistent nationally.
Revenue Canada recognizes the seriousness of this undertaking and its impact on the Canadian public, and we are anxious to move forward in order that we may contribute to making our country a safer place to live.
I can assure you these changes arise very much from a grassroots initiative. The Customs officers at the border recognized the problem and felt considerable frustration at having to wave impaired drivers down the road, other than attempting to use their personal powers of persuasion to suggest that they go into the Customs facility, have a cup of coffee and wait a couple of hours. If the individual refused, they had no choice but to let them go.
Officers over the past several years have had a ground-swell movement and have been particularly supportive of the department's efforts in this regard. We keep track of the statistics of the incidents which we can describe to you to give an idea of the fullness of the problem. The incidents number in the thousands.
Ms Maureen Tracy, Interim Director, Policy Development Division, Contraband and Intelligence Services Directorate, Customs and Trade Administration Branch, Department of Revenue Canada: Honourable senators, before I go through the bill on a clause-by-clause examination, I can elaborate on what Mr. Girard has explained as our current authorities.
At the moment, Customs officers are included specifically in the definition of "peace officer" in the Criminal Code, but their authority to exercise the powers of peace officers is somewhat limited because they can only be applied to Customs Act offences. Those are offences such as smuggling, under-valuation, and offences that are very much connected with goods crossing the border.
This is a very short bill, and the meat of the bill really only appears in one clause. I will start by describing the nature of that clause.
It provides designated Customs officers with the power to arrest individuals and to detain them for Criminal Code and other federal criminal offences. Their powers would no longer be limited to Customs Act offences but would apply to any federal criminal offence.
It also gives them the authority to make a demand for breath or blood in cases where they suspect that drivers are driving under the influence of alcohol. This is an important distinction because they would be authorized to make the demand for breath and to administer what we are calling the "road-side test," which is the preliminary screening tool. It is not the breathalyzer test. That would continue to be administered by police. This is a screening test to determine whether the person should be referred for a breathalyzer.
The bill also requires that, once an arrest has been made, the Customs officer turn that individual over to police as soon as possible. In other words, Customs officers would have no responsibility for follow-up investigations or prosecutions. We have been calling this a first-response capacity, which essentially means they would take the action required to stop the commission of the offence or to ensure the safety of citizens, and then turn the suspect over to police for further follow-up.
In terms of designations, not all Customs inspectors work greeting individuals who are seeking entry into Canada. We have officers inland at commercial offices where commercial organizations pass Customs entries after the fact. We also have Customs officers in post offices examining and charging duty on parcels coming into the country.
In keeping with the philosophy that enforcement powers should be attributed only to individuals and positions that actually require those duties, we saw fit to put in the bill that the minister would have the authority to designate officers who would be empowered to perform this function. The principle we would use to designate is that it would only be officers who would be in direct contact with individuals seeking entry into Canada.
We have done a rough estimation and believe that that would represent roughly two-thirds of the 3,500 Customs inspectors across the country. That would exclude the positions that work solely with goods rather than with people.
Mr. Girard: I would add that the designation also carries with it an obligation on the part of Revenue Canada to ensure that these individuals are adequately trained and equipped to do this, having in mind their own safety, the safety of Canadians, and the purposes and intents of this bill. Designation is more than only a matter of being an officer working on the front line. This is a matter of being a fully trained, fully educated, fully informed officer working on the front line.
The Chairman: That would be in addition to the training they presumably already receive with their present powers of arrest?
Mr. Girard: That is correct. In fairness, they are currently trained as peace officers with powers of arrest. This training would be an enhancement-type of training or a top-up training to deal with the specific categories of offences with which we want them to deal.
The Chairman: How will this additional training be funded?
Mr. Girard: It is being funded internally by the department. We have made some estimates in that regard. The estimates range up to $5.5 million in the aggregate, as a start-up. That includes facilities and the training of officers. Our budget is in excess of $2 billion and we believe that we can successfully fund this internally through cash management and reallocation of priorities where necessary.
Senator Gigantès: Am I correct in presuming that the training will include how to ensure that evidence is not mishandled so that it remains admissible in a court and how to effect a proper arrest such that the arrest is not later thrown out in court?
Mr. Girard: That is correct, senator. Our officers are currently trained in precisely those two areas. This would be an enhancement of that training ensure that, when dealing the specific offences to which we refer, they will know how to handle the chain of evidence in that regard.
[Translation]
Senator Pépin: Among other things, you mentioned that each border point would have to be equipped with cells, because from now on, officers would have the authority to detain offenders. I find that amusing and I would like you to explain this to me. You said that this would have to be the case at all border points. At busy times, such as weekends, many people cross over into the United States at the smaller border crossings, avoiding the larger ones. They use the small secondary roads which have a number of crossing points. A number of offenders use these border points as well. What kind of arrangements are you going to make? Will every border point be outfitted in the same way?
Mr. Girard: Holding cells are for terrorists or criminals. We have found that criminals and terrorists use the major border crossings, not necessarily the smaller ones. If necessary, we will equip each of our crossing points with cells, but we have also made arrangements with local police forces to help us out if a situation like this were to arise, which, according to our studies, rarely does.
Our statistics indicate that few incidents occur at small border crossings. Major incidents tend to occur at the larger crossing points such as Windsor and Lacolle.
Senator Pépin: I would have thought the opposite were true. Do customs officers support the proposed legislation? Were they involved in the drafting of the bill?
Mr. Girard: Yes, they have been involved since the outset. About ten years ago, when Mr. Gray was Solicitor General, we met with several customs officers at a Tim Horton's in Windsor to discuss the matter.
Senator Pépin: There seems to be good cooperation between customs officers and police officers. You explained how the legislation will give new powers to customs officers, namely the authority to arrest offenders and turn them over to the police. Were any problems encountered during the drafting stage?
Mr. Girard: Police officers are supportive of the draft legislation, particularly those in Windsor, as are RCMP officers who work at airports. Police forces across Canada are fully supportive of the bill. It is easier for them to have customs officers intervene and detain suspects or criminals prior to the police's arrival. It allows them to work more efficiently. It is more difficult to find a criminal once he is no longer in custody. The police's job is made easier if action is taken at the border.
Senator Pépin: What kind of duties will customs officers who handle goods perform as compared to the officers who deal with people crossing over at the border points? Those who inspect goods may not have to arrest anyone. In what way will their duties be different?
Mr. Girard: Are you talking about officers who work at the crossing points, for example, or those who work at a post office?
Senator Pépin: I am talking about those who inspect goods. What is the nature of their duties? How can they arrest people?
Mr. Girard: Currently, if we find a package or parcel containing drugs, we have the authority to seize the drugs. We contact the RCMP to advise them that we have found drugs in a package or parcel at the post office or in a shipping container. When drugs are involved, we contact the RCMP. Occasionally, we find forged credit cards. We will have the authority to seize these cards and at the same time, to contact the RCMP.
However, one need not be a peace officer to phone the RCMP in a case like this. Designated officers will be working at the border and the other officers will continue to perform their regular duties as always.
Senator Pépin: You explained earlier that you had a budget for training purposes.
Mr. Girard: The is correct.
Senator Pépin: What time frame are we looking at between the enactment of the legislation and its coming into force?
Mr. Girard: Anywhere from six to eight months.
Senator Pépin: Canada-wide?
Mr. Girard: Yes.
[English]
The Chairman: You will do that all at once, across Canada?
Mr. Girard: That is the intention. However, we must be flexible. If we have concerns at a port like Windsor, regarding the casino, heavy weekend traffic or other matters, we may, in response to a realistic appraisal of the situation, decide that we need to implement this on a phased basis. We know there are pressures in many areas.
I would suggest, as a matter of practical reality, that as soon as word of the anticipated proclamation of this bill hits the street, every primary inspection booth at the border becomes the same as Operation RIDE. Every person knows that when they pull up to the border, they risk a breath sample.
We suspect that the incidents at the border over time will fall off to almost nothing. People will know automatically. This is not just supposition. We have had experiences where the police have set up a RIDE program at the border, and we have observed vehicles turning around and going back.
Senator Rossiter: What would be the implications of a designation on the job classification of any employee?
Mr. Girard: It has been thoroughly examined and it has no implication. As indicated earlier in our discussions, this is an augmentation, addition or enhancement of an existing power. The difference in terms of the federal government's classification point system is minimal and will not have an effect on the classification or pay of the officers.
Senator Rossiter: I can remember going across the border at small border stations between New Brunswick and Maine. Are those small border crossings still open?
Mr. Girard: Yes, sometimes they are open eight hours a day.
Senator Rossiter: Will they see increased traffic?
Mr. Girard: We will certainly be monitoring that. We are aware of such things taking place. We do have a problem of people attempting to smuggle contraband into Canada. We have means in place, means which I do not always choose to disclose in a public forum, for determining whether traffic flow patterns change. We can use the same means to determine whether patterns change as a result of this initiative. We can staff our border points flexibly and respond where needed to any particular threat. We are constantly doing risk assessments.
Our actions and the disposition of our people are often done as a direct result of those risk or threat assessments to ensure that we have the most efficient and effective border for the protection of Canadians.
If we were to observe some strange things going on at other border crossings -- for example, where we usually see 8 cars a day, it would be easy to say that traffic doubled to 16 -- we would analyze that to see if it had anything to do with this initiative.
From time to time we will also change the hours of operation of a port or the number of staff members at a port to ensure we are not being given an end-run by undesirables. We will do this to keep people off balance. We may do enforcement stints where we will do extensive examinations for a specified period to see whether or not we have a problem. We are very much aware of the small port situation. We will be able to overlay our current processes, procedures and threat assessments that we use for the prevention of smuggling of alcohol, tobacco and individuals, with the processes that we have on the table before us today. It is a new business line, not a completely new business. We are adding tricycles to our bicycle factory, in a way.
Senator Rossiter: The principal problem seems to be the impaired drivers; is that correct?
Mr. Girard: That is correct.
Senator Rossiter: Was this action motivated by concerns of the provincial police officers, as well?
Mr. Girard: They are concerned about it. They are concerned about the fact that we call them after the individual has left the border point and then that individual is into a rather large road net. It would not be completely honest to say that this is at the instigation of the provincial police. However, once it was instigated, they certainly supported it.
Senator Watt: Would this piece of legislation also apply at the airports?
Mr. Girard: Yes, it will, senator.
Senator Watt: Sometimes people get checked out while others are allowed to go through; there will be no change to that?
Mr. Girard: None whatsoever.
Senator Watt: Will the same thing apply at the border?
Mr. Girard: That is correct. At the border, there are two things that are more obvious than at the airport. At the border, impaired driving and stolen property are more obvious. Child abduction is less obvious but our officers are trained to detect it. Outstanding warrants can be checked by virtue of using a lookout system which is a computer terminal within the primary examination booth.
The two areas dealt with at airports are possible child abduction and arrest warrants. There is certainly no impaired driving unless it was a pilot and we would not want to face that situation.
In the last decade or so, we have returned over 550 children to their custodial parents as a result of our partnership with other government departments such as foreign affairs, international trade, immigration and the RCMP.
The Chairman: So you are in effect already performing that function at the borders?
Mr. Girard: Yes.
Ms Tracy: At the moment, as Mr. Girard said, we are working with Immigration and RCMP. We are performing an information-exchange function. We are communicating with them and working closely. This new legislation would empower us to take the action ourselves as opposed to having to transmit the information to the police, or to the Immigration officials in the case of non-residents. It makes it easier and we can add to the success we have had in the past.
Senator Watt: The last question is related to tobacco and alcohol. As you know, the First Nations, especially the Mohawks, have been smuggling those products back and forth. Do you think this will help to capture those people or do they have another route?
Mr. Girard: This bill is not intended to address those issues. We currently have all the powers and authority we need. When confronted with a situation of cigarette smuggling, we embark on direct border activities in joint-force operations with the provincial police or the RCMP as necessary, under existing Customs legislation.
Senator Watt: Why are those powers never exercised against the First Nations?
Mr. Girard: Cornwall is one of our more challenging areas. We have made numerous seizures in the Cornwall area. It has been very productive. Should Revenue Canada choose to do so, we could open one of the biggest used-car lots in the country because we also seize vehicles in the course of stopping smuggling attempts. Similarly, we have activities where we are monitoring the flow of product.
I would ask you to understand why I am being vague. It is not in an attempt to be evasive. We monitor flow of product, destination and source. While we may not take action where people might expect us to take action, action is ultimately taken, perhaps at a very unexpected place, dealing with the same product to which you refer.
Senator Lewis: I was just looking at the proposed section 163.5(3) which provides that where a designated officer arrests a person, he may detain that person until the person can be placed in the custody of a police officer. There is nothing there -- it may be somewhere else, such as under the code -- to restrict the length of time that the person who is detained can be held in such custody. In other words, if a designated officer arrests someone and then cannot find a peace officer available or willing to take that alleged offender into custody, the accused would be in your custody for an indefinite time.
Mr. Girard: The intention here, senator, was to not have people in our custody for indefinite periods of time but rather to act as swiftly and efficiently as we could in accordance with local agreements with police forces closest to the port.
With respect to impaired driving, for example, the road-side alert, which is the preliminary indicator, takes approximately 10 minutes. The administration of the Borkenstein breathalyzer test extends over a period of approximately two hours, on the assumption that the police arrive quickly. There was some wrestling with the introduction of words in the bill such as "as soon as possible" or "as soon as reasonably possible." However, in this case, the charter protection to the individual is such that we could scarcely detain a person for an inordinate or unreasonable period of time.
The people with whom we are dealing here are people who are a menace to society, either by being heavily impaired in their motor vehicles, by abducting children, by having outstanding arrest warrants, by being in possession of stolen property or by being terrorists, and we want to act as quickly as possible, as do the local police forces. There is nothing in the bill that restricts the amount of time but there is criminal jurisprudence and charter jurisprudence that indicates that we should turn the people over to the police for processing as soon as feasible.
Senator Lewis: I believe there is something in other legislation, probably the code, that says that a person who is detained must be taken before a justice within a certain period of time. I am wondering why you do not have that here, because it looks like it could be completely indefinite. I notice, under proposed section 503, that the requirement is that the person shall be caused to be detained in custody and, in accordance with the following provisions, be taken before a justice to be dealt with according to the law.
We do not have those "following provisions" here. It seems to me there is a little lack there, but you may have an understanding with the local police forces.
Mr. Girard: Your observation, senator, is on point and I would build upon an earlier response and question from Senator Gigantès. It is a matter of having that continuity. This is a process whereby the Customs officer, acting with authority under the Criminal Code, is the first response, who then turns the individual over to the police. It is the police who then must bring the person before a justice within the specified period of time.
In the aggregate, the process of both the Customs inspector and the police officer dealing with the individual must fit within the constraints that you have observed with respect to the Criminal code requirements, as a continuity, as a team.
Senator Lewis: I realize the intent and I do not object to it, but I am wondering if there is a little gap there. I take it that when the person is turned over to the local police, he is dealt with under the provincial jurisdiction of the administration of justice. However, if there is some slip-up there, a person could be in your accommodation for any amount of time, and there is no provision here to say what should happen in such a case.
Mr. Girard: I imagine that, first of all, the individual, upon being arrested or detained, would certainly have to be informed of his or her charter rights, the right to retain counsel, and I am sure an astute counsel would very quickly bring forth a writ of habeas corpus to have that individual released or brought before a Justice of the Peace.
Senator Lewis: That is putting an onus on the individual to do that. It seems to me it should be more of an obligation on the arresting authority. I am sorry I do not have the provisions of the code that deal with this because there may be an answer to this problem.
Ms Tracy: If I may attempt to answer that, right now any peace officer who makes an arrest under section 495 of the Criminal Code, which is the provision that would authorize Customs officers to arrest, has an obligation under section 503 of the code to bring that person before a justice of the peace as soon as possible and within 24 hours of the arrest. The idea here is that the arrest would be made, and then that person would be brought before the justice of the peace by police within the 24-hour period, or as soon as possible within the 24-hour period.
We would have the authority and the obligations that go with that authority, so that would tie in to this return to a justice of the peace before 24 hours.
Senator Lewis: Yes, but it is not the Customs officer who would have to make sure of that under this bill, because this seems to say absolutely that the Customs officer may detain the person.
Ms Tracy: Perhaps I could read part of the proposed section 503(1):
A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3)...shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice...
Senator Lewis: That refers to a peace officer but not a Customs officer.
Ms Tracy: The bill has a consequential amendment which I should have described at the end. It is a consequential amendment to section 503 to change the Criminal Code to include a peace officer or a designated Customs officer.
Senator Lewis: Fine. That answers my concern.
Senator Rossiter: When does the 24-hour limit start? Does it start with the provincial police officer or the RCMP officer or the designated officer?
Mr. Girard: It starts at the point of arrest.
Senator Watt: Since the Customs officers are the ones who will be detaining for an unlimited amount of time, as Senator Lewis put it, when does it trigger in that so that the person must be read their rights? Will the Customs officer read the rights, or will that wait until the police officer arrives?
Mr. Girard: Customs officers do arrest today and read rights to individuals. They will continue to do so. It is an obligation, and they will continue to do that at the initial point of arrest.
Senator Watt: Is that a new power which has never been in their hands before?
Mr. Girard: The power to arrest for these particular Criminal Code offences will be absolutely new.
Senator Watt: Without warrant?
Mr. Girard: That is correct. We currently have Customs officers who arrest without warrant on acts of terrorism, drug smuggling, weapons offences, criminal activities to which these may pale in comparison if one were to get into a debate on the nature and kind of offence. It is not to understate or overstate the purpose of the bill, but we are filling an enforcement gap at the border. We see impaired drivers go by. We see suspected arrest warrants go by with children in the car where we are very suspicious, or an obvious mismatch between a driver and a vehicle. If you imagine a scruffy person in a Mercedes Benz, you might be curious, but you do not want to offend them. However, there may be other factors to suggest that you might just want to have a look.
Senator Gigantès: Am I allowed a small anecdote? I was dean at a university, and the son of one of my professors turned out to be a major drug smuggler. He always dressed in very preppy fashion with a blazer and he had a good haircut. No one ever suspected him.
Mr. Girard: I have two questions. First, did he ever get caught, and second, what is his name?
Senator Gigantès: As he explained to his father who was agonizing on whether to turn him in, he said, "Don't worry, Dad. As soon as I have enough money, I will stop this and go on to live a luxurious life as a graduate student." He now teaches philosophy in a university on the west coast of the United States.
I would like to return to the proposed section 163.5(4):
A designated officer may not use any power conferred on the officer for the enforcement of this Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.
Is it likely that a designated officer might be alone when he effects the arrest?
Mr. Girard: It is quite conceivable.
Senator Gigantès: Then if I am the defence lawyer, I will allege that that is exactly what he did.
Mr. Girard: It will depend on the individual facts of each case. If it was a matter of detaining and arresting an individual with respect to an abduction or impaired driving, I think the facts would speak for themselves. The object of this particular clause is to ensure that officers are not involved in becoming another police force. This is just for those particular matters which concern us at the border. We have tried to delineate them so that they are narrow and apply only at the frontier. We are not trying to have officers investigate all Criminal Code matters away from the frontier.
Senator Gigantès: A defence lawyer will say the Customs officer discovered the forbidden substance after arresting the accused and, therefore, according to this, that it was a wrongful arrest.
Mr. Girard: They say it today, senator, but the forbidden substance today is under the Customs Act or the other pieces of legislation we administer, which may well be the Narcotic Control Act or offences related to prohibited importation of goods such as child pornography.
Senator Gigantès: So this would not operate.
Mr. Girard: This would not play into that field.
Senator Gigantès: They would have the right to search for such things in any case.
Mr. Girard: That is correct.
Ms Tracy: Right now Customs officers have the power of search without warrant. That power is exclusive to Customs officers because of the circumstances of their business. The idea behind this provision was to ensure that they not use the extraordinary powers they have been given for border security in order to pursue or to find evidence of Criminal Code offences because, of course, there is a tougher standard for searches under the Criminal Code. Police officers in Ottawa or in Toronto do not have the kind of search authorities that Customs officers have at the border. The idea behind this was to ensure that Customs officers not use these extraordinary powers in order to get at Criminal Code offences.
Senator Gigantès: I am probably naive, but if one of your Customs officers asks to see inside the trunk of a car and finds an abundance of blood stains which might indicate a murder, what do they do?
Mr. Girard: In that instance, senator, they would phone the local police force and just share the information.
Senator Gigantès: They would not detain the person?
Mr. Girard: No.
Senator Gigantès: They would phone the police officer and describe the car and the licence number and the fact that it has a trunk full of blood? They would not detain someone with a trunk full of blood stains?
Ms Tracy: It would depend on the circumstances. If that officer was opening the trunk in order to verify a declaration or to ensure there were no drugs in there, if the initial reason for opening that trunk was a Customs reason and incidental to that search he found the blood, then that is okay because this provision says that Customs officers would not be able to use their powers solely to find evidence of a Criminal Code offence. If it is found incidental to a Customs search, then that is okay.
Senator Gigantès: Can the person then make the arrest?
Ms Tracy: There are all sorts of considerations, such as whether the person is armed and dangerous. There would be other considerations. Technically or legally, they could make the arrest in those circumstances.
Mr. Girard: I imagine that our apparent contradiction is more reflected on the extent or degree. Yes, a trunk full of blood or a few spots of blood, it is a judgment matter. The power of Customs officers has been described as obtrusive, but it has been equally described in the Supreme Court of Canada as necessary notwithstanding the charter. We are protective of this power. We are concerned about it, and we are trying to put fences around it. When we know we are adding the Criminal Code arrest power, we are trying ensure that we are not being perceived as adding a power to say someone looks suspicious and asking them to pull over when the suspicion has nothing to do with stolen property or drugs or child abduction or impaired driving. We do not want to do that.
Senator Gigantès: What about a severed hand?
Mr. Girard: A severed hand might be somewhat suspicious, although you may recall the case of the person who brought home his father packed in ice.
[Translation]
Senator Pépin: This is all new to me. Perhaps you mentioned this during your presentation which I missed, but do US customs officers enjoy the same rights and privileges as the ones we are about to assign to our designated customs officers?
Ms Tracy: Yes, they have the same powers, but enforcement of criminal law matters is the responsibility of state officials.
Senator Pépin: They have the same authority that our officers will have as a result of this legislation. You referred to criminals who smuggle drugs and weapons. Many of them are skilled, often dangerous offenders. Will these designated officers be protected from these individuals? Have they been given the means to protect themselves? They will not be allowed to carry weapons. Will they feel safe enough to carry out their new duties? When they take these offenders by surprise, they will not have arrest warrants. How are they going to use the equipment made available to them to ensure their safety?
Ms Tracy: Are you referring to safety and health concerns or to legal safeguards?
Senator Pépin: I am talking about the safety of officers.
Ms Tracy: As Mr. Girard indicated earlier, we have devised training plans. We have plans to provide officers with physical conditioning and self-defence training.
[English]
We have plans to introduce use-of-force training both for personal protection purposes and, if I may say, for offensive or compliance purposes.
We have no intention of leaving our officers in a position where their personal safety would be compromised. We try not to do that now and, certainly, this initiative would not change that. The details of the training are not finalized at the moment but certainly we have every intention to ensure that they receive the appropriate training to carry out these new responsibilities.
[Translation]
Senator Pépin: If I understood correctly, unlike police officers, designated customs officers will not carry weapons.
[English]
Ms Tracy: No, they will not be armed with firearms.
Senator Gigantès: How do you protect them if the person to be arrested because he is in one of the arrest-able categories, is carrying a magnum under his left armpit and is prepared to use it, being a nasty fellow?
Mr. Girard: Senators, we seize thousands of magnums now per year, at the border.
Senator Gigantès: Customs officers, bare-handed, seize magnums from people who are carrying them?
Mr. Girard: That is correct, senator. I might add, with respect to these particular powers, in the case of an outstanding warrant, if the footnote says "armed and dangerous," we do not intend our officers to step in front of that individual. There will be an exercise in discretion. The training will indicate this. That is an obvious option for alerting the police and letting the person pass.
It is a matter of applying judgment in each individual case. It is the exact same judgment that a police officer may exercise if he or she is in a cruiser in the City of Ottawa and sees an "armed and dangerous" person. He or she will call for back-up, tail that person and have other officers intervene. This is not a matter of always placing ourselves in the face of danger or confrontation. We want to be sure that that does not happen. That is part of the profile work that we are doing. Officers are trained not only on how to enter into situations but how to get out of situations.
Senator Gigantès: Will they use these newfangled devices that squirt a gluey substance to immobilize the potential malefactor?
The Chairman: We will treat that as a facetious question. Does every border station now have holding cells?
Mr. Girard: No, they do not.
The Chairman: On some of the smaller prairie roads where I have crossed the border, there are no holding cells nor any police forces nor justices of the peace within 100 miles which a Customs officer could contact.
Mr. Girard: Those are all unique situations, but the intent is to have a holding cell at every manned crossing. Today, when we run into dangerous situations from time to time, the nearest OPP detachment is 100 miles away. We will need a memorandum of understanding to ensure that we have an agreement as to response times. That also addresses the concerns raised with respect to the issue of detention.
All of these issues are on the table and being addressed and unrolled one by one as we go along. They have all been considered in the run-up to this bill. We know they must be resolved. We are also more than aware of the charter rights of returning Canadians and others on our soil. We are cognizant of those rights. The intention is to have a holding cell wherever a border crossing is manned.
The Chairman: You will have a construction program as well as a training program.
Mr. Girard: Yes, but please do not think we are building jails everywhere. The cells are relatively small. They must meet certain requirements for the safety and security of the arrested person and the detaining officer and the general public, so that we do not have dangerous people running around loose.
The Chairman: You mentioned before that the designated officers will only be at border crossing points or entry ports such as marine ports or airports. It will be a narrow strip.
Mr. Girard: That is correct.
The Chairman: What about the Customs offices like the one in Mississauga, an enormous office where truckloads of goods are processed every day? This will not apply at a facility like that?
Mr. Girard: The load and driver are subject to examination at the first point of entry. If we want to stop them for any purposes related to the Customs Act or the Criminal Code, that is when it will be done. They may be moving inland to a sufferance warehouse or a bonded warehouse. Once they have passed the frontier, that is the end of our ability to apply these provisions. We need to use targeting, advanced information and intelligence in the case of a suspicious truckload coming through.
Senator Joyal: My question may have been asked already but it is one which must be very clear.
[Translation]
When a Canadian or American citizen goes through U.S. customs, the U.S. customs officer enjoys the full protection of U.S. laws. He is bound by the Constitution that applies to persons in the United States. When that same individual crosses back into Canada, he deals with a Canadian customs officer who is protected by Canadian laws. To what extent do these two customs officers face different circumstances if they suspect someone of weapons or drug trafficking?
In other words, what legal restrictions apply to the U.S. customs officer as compared to his Canadian counterpart? People often say that going through Canadian customs is a quick and easy process. However, tighter controls are exercised at U.S. entry points. At least that is the public's perception. It is likely a false one, but from a strictly legal standpoint, how does the situation of the U.S. customs officer differ from that of his Canadian counterpart in terms of powers and legal restrictions?
[English]
Ms Tracy: The powers and responsibilities of U.S. Customs and Canada Customs are very similar. For another purpose, we have just gone through the U.S. procedures, particularly on their fines and penalties, but also on their powers and the way they carry out their business. Their systems are very similar to Canada Customs'. We have, of course, the Charter and all of the fundamental rights that it provides to Canadians, but U.S. Customs is restricted. They must also meet fairly strict standards in the form of reasonable grounds. Generally speaking, with some minor exceptions, our businesses are very much alike. Our legal basis is very much alike and our Customs Acts are surprisingly similar.
The differences in how people perceive Canada Customs and U.S. Customs are not legislative. It is not a legislative difference. It is perhaps a difference in the focus of the two organizations or their priorities, but it has nothing to do with the legislative basis to operate.
Senator Joyal: When you say the legislative basis is comparable, it will be more comparable if this bill is adopted. That is how I understand it. They are not as comparable as long as this bill is not adopted. At this point, are you in the same position as far as capacity is concerned, or are you not more restricted because of the Canadian Charter? Are they more restricted because of the U.S. Constitution?
This is comparative law, and you may not have prepared for that question, which is a legal one. Most of the in-and-out occurs on the American border. That is where the major black market activity or drug connections take place. That is why I am asking where we stand because I want to know what the future will be in this regard.
Mr. Girard: There are strong similarities between the U.S. Constitution and the Canadian Charter of Rights and Freedoms with respect to the rights of an individual upon arrest. However, beyond being able to make a statement to that effect, I cannot not discuss subtle or fine differences.
With respect to current powers, Customs officers will make arrests and be subject to the Charter for offences under the Customs Act. They will continue to be subject to the Charter for offences under the Criminal Code and will have to follow the same procedures they currently follow. However, that will require certain enhanced training so that they become familiar with the rules of evidence as applicable to the specific offences in the Criminal Code that we are trying to address with this bill.
Senator Joyal: With the computerized system, it is much easier to exchange information between the two sides of the same border. Everyone knows that when we cross the American border, our plate number is punched into the computer, as is the date and the hour, and perhaps even the motives and the reasons we give to the American Customs agent. When we come back across the border, sometimes we are asked questions; sometimes we are not asked any questions. The Customs agent has everything in front of him so it is easy to confront someone with a statement that may be incorrect.
Do you have agreements with the U.S.? For instance, what if an American Customs agent suspects that someone should be watched? For whatever reason, they establish a criteria of suspicion. Someone may have a threatening physique or ride a motorbike that looks like it is associated with the Hell's Angels. Perhaps this question has been asked before.
The Chairman: Under our law, can we do that? Should we do that?
Mr. Girard: We have a series of agreements with countries, including the U.S., where if they or we perceive a threat to the other sovereign nation, it is incumbent upon us to inform that nation. For example, if we were talking about a lookout for a known terrorist -- not necessarily a gentleman as honest-looking as the senator -- we would certainly be interested in that information.
The means by which that information is transmitted or the speed by which we can get it is what I would prefer to call an operational level matter, which I would not necessarily discuss. Again, as I said earlier, I am not being evasive at all, but I wish to inform the committee to the extent I can without informing the rest of the world through the record of these proceedings exactly what those operations are.
Many people have experienced the sensation of having been stopped for a particular reason. Several of your observations in that regard, senator, are quite correct. However, it is not what we consider a "big brother" power. It is for a significant reason and for generally serious offences, not for a carton of cigarettes.
The Chairman: If a parent or a person with a child in the car crosses the border from the United States and gets past American Customs because they were asleep at the switch, and the Canada Customs agent thinks that this is a suspicious case of one parent abducting a child from the United States, what would happen?
Mr. Girard: You are asking about them entering Canada?
The Chairman: Yes.
Mr. Girard: We would have the power to act under this bill.
The Chairman: We can act in Canada, rather than turning them back at the border and alerting U.S. Customs?
Mr. Girard: We would prefer not to turn them back because they may try evade U.S. Customs, even if we phone ahead. This gives us the ability to do either, to act in concert with our friends to the south or to act on our own behalf. Certainly if it was an Ontario-plated or a Quebec-plated vehicle, there is little doubt that we would take action with respect to a Canadian citizen or a landed immigrant under our own jurisdiction.
The matter of abducted children is always very near and dear to our administrations. We are pleased to see that this bill will confirm and enhance our powers in that regard if it passes both houses. We have many means of dealing with abducted children. Many dedicated people will answer pagers and beepers 24 hours a day and phone the nearest border crossing. An hysterical parent could call the police. The police would refer the parent to Customs and, within 10 or 15 minutes, the nearest border crossings would be alerted.
The vast majority of these cases are domestic disputes; they are not related to strangers, lest the wrong impression be left.
The Chairman: I knew a person who years ago managed to have the father of her child stopped at the border because he was abducting the child.
Senator Joyal: I come back to the perception that the Canadian border is more friendly than the American border. Is that due in large part to the ethic of Customs agents as compared to the attitude of Americans generally, even on the Canadian border? I will use an example which seems to illustrate my point very well.
The last time I crossed the American border, I was not badly dressed. I looked like an average citizen and not too threatening. Yet I was asked whether I had ever been fingerprinted in Canada. That was the first time I had ever been asked that. Since I cross the border very regularly, I was very surprised at that question. Although it was not rude, when a person asks whether you have ever been fingerprinted, they are asking whether you have ever been suspected of a criminal offence. That is a question that Canadians are seldom asked by Canadian Customs agents or immigration inspectors, unless we are caught in the legal process.
Do you ask such strong questions of people? How do you manage your responsibilities so that we get one perception when we cross the border in one direction and a different perception when we cross it in the other direction?
Mr. Girard: There are two levels at which that question could be answered. Canada is a trading nation. It relies heavily on tourism. It relies very heavily on just-in-time delivery services to its major auto plants, which represent a significant portion of our economic well-being. In those circumstances, the more agreeable and pleasant we can be with respect to the processing of shipments and individuals, while at the same time maintaining proper enforcement capacity at the border, the better off we all are.
On a micro level, we train our officers to look at certain indicators to deal with people and they will pose the questions accordingly. In Canada, our first response is an immigration response on behalf of Citizenship and Immigration Canada.
Admissibility to Canada is the first criteria for an individual. The potential of a person to be smuggling or carrying contraband is another consideration. Politics may enter into this, and that is certainly not my domain. American policy may enter into this, and that is certainly not my domain. There may be a particular interest by a senator from a given state to have something happen, or there may be some other reason for it.
However, in Canada, our officers are trained and expected to be friendly, to welcome you back to Canada, to be cordial and polite, and to carry out a very difficult job, which they do very well, in the least obtrusive manner possible.
I cannot speak for why my friends in the Customs administration of the United States may or may not take a particular approach.
The Chairman: On that high point, we will bring this meeting to a close. I wish to thank the witnesses for their appearance.
The committee adjourned.