Proceedings of the Standing Senate Committee on
National Security and Defence

Issue No. 12 - Evidence - Meeting of February 8, 2017


OTTAWA, Wednesday, February 8, 2017

The Standing Senate Committee on National Security and Defence, to which was referred Bill S-233, An Act to amend the Customs Act and the Immigration and Refugee Protection Act (presentation and reporting requirements), met this day at 12 p.m. to give consideration to the bill.

Senator Daniel Lang (Chair) in the chair.

[English]

The Chair: Welcome to the Standing Senate Committee on National Security and Defence for Wednesday, February 8, 2017. My name is Daniel Lang, senator from Yukon. On my immediate left is the clerk of the committee, Adam Thompson, and on my right is Marcus Pistor, Library of Parliament analyst.

I would like to ask the senators to introduce themselves.

[Translation]

Senator Dagenais: Jean-Guy Dagenais from the province of Quebec.

Senator Saint-Germain: Raymonde Saint-Germain, senator from Quebec.

[English]

Senator Wallin: Pamela Wallin from Saskatchewan. I'm substituting for Senator Boniface today.

Senator Beyak: Lynn Beyak from Ontario.

Senator Baker: George Baker from Newfoundland and Labrador.

The Chair: Today we will review Bill S-233, An Act to amend the Customs Act and the Immigration and Refugee Protection Act (presentation and reporting requirements). This is a private member's bill which was referred by the Senate to this committee last week. The sponsor of this bill, Senator Runciman of Ontario, is here to present the bill, along with the Member of Parliament for Leeds—Grenville—Thousand Islands and Rideau Lakes, Mr. Gordon Brown. I want to give a special welcome to a very special guest, New York State Senator Patty Ritchie, who will also be presenting.

Senator Runciman, I understand you have an opening statement. I invite you to begin.

Hon. Bob Runciman, sponsor of the bill: Mr. Chairman and members of the committee, I want to thank you for accommodating me on short notice in recognizing the desire for many to see this legislation in place before next summer's boating season. I also want to thank New York State Senator Patty Ritchie for changing her very busy schedule so she could be with us here today to talk about Bill S-233.

It was Senator Ritchie who first raised this problem with me, and it was this issue that led to the creation of a cross- border caucus of legislators dealing with matters of mutual concern to eastern Ontario and northern New York. Senator Ritchie and I co-chair that group. I am also pleased to appear alongside Member of Parliament Gord Brown, my MP, who has worked on this file for some period of time as well.

The circumstances that led to the introduction of Bill S-233 involved the case of a New York man, Roy Andersen, who was drift fishing in Canadian waters in the Thousand Islands area of the St. Lawrence River back on May 30, 2011. Canada Border Services Agency officers seized his boat until he paid a $1,000 fine, which was later reduced to $1.

Andersen had an Ontario fishing licence, but he hadn't reported to Canada customs when he crossed into Canadian waters. I don't think very many people knew it at the time, but that is an offence under the Customs Act.

Since that time, CBSA officials have made it very clear that anyone who crosses into Canada's inland waters, even if they don't stop, is guilty of an offence if they do not report by telephone.

There is an exception in section 11 of the current Customs Act, which says those who enter and then leave Canadian waters or airspace do not have to report if they are proceeding directly from one place outside Canada to another place outside Canada. This is interpreted to mean they are following the shortest possible route between two places outside Canada. Otherwise, travellers who enter Canadian waters must report even if they do not drop anchor or touch land.

In the region we're talking about, this is not a practical requirement. The border is anything but a straight line in this area, primarily because of the more than 1,800 Islands along an 80-kilometre stretch of the upper St. Lawrence between eastern Ontario and northern New York, and it's not obvious which side you are on at any given time. You will hear more about that from other witnesses today and also about the damage this has done to cross-border relations and to tourism-dependent economies.

I'll turn now to the provisions of Bill S-233 and how they address this problem.

The bill adds an exemption for those who enter Canadian waters or airspace on board a conveyance directly from another country and then return to that country:

. . . if the person did not disembark, anchor, moor or make contact with another conveyance while in Canadian waters, including the inland waters, or did not moor or tether while in the airspace over Canada.

I might add that even those who qualify for either of these exemptions can still be required to report if an officer tells them to do so. The bill also makes clear that Canadians who leave Canadian waters or airspace are not required to report upon their re-entry, so long as they meet these same requirements.

Bill S-233 also amends the Customs Act so that the same rules apply to goods on board a conveyance. They are not required to be reported, provided the "conveyance did not anchor, moor or make contact with another conveyance.'' Again, as with the previous section, an officer can still require reporting despite the exemption.

The bill also provides authority for the Governor in Council to make regulations prescribing how these exemptions work and also to define the expression "make contact with another conveyance.'' The Immigration and Refugee Protection Act amendments are intended to provide more regulation-making authority to deal with the particular exemptions in this bill.

There's also a coordinating amendment to deal with the Customs Act amendments contained in Bill C-21, which was introduced in the house in June and is awaiting second reading.

You will note that none of the exemptions provided for in Bill S-233 are left wide open. In every case, an officer retains the authority to require reporting and the bill also provides regulation-making authority to determine the specifics.

It's not my intent with Bill S-233 to make our border more porous and I do not believe this bill will have that effect. It's my intent to make border reporting more practical in specific circumstances, such as in the sometimes confusing geography of the Thousand Islands. There are other regions of Canada where the same issue is at play, and I believe this legislation accomplishes that goal, Mr. Chairman. Thank you very much.

The Chair: Senator Ritchie, please.

Senator Patty Ritchie, New York State Senate, as an individual: Thank you, Mr. Chairman and honourable senators. Thank you for inviting me here to testify about a matter that is important to the people that I represent along Lake Ontario and the St. Lawrence River. As a member of the New York State Senate, it is a rare and historic privilege to be invited to Canada's capital to offer my thoughts on a problem that affects our constituents on both sides of the border.

As the senator who represents the longest stretch of the Empire State's 450-mile shared international border, I have always taken a great deal of pride in the unique relationship my constituents and I have with the people of Canada.

When I was invited here today, I was reminded about my first trip to Parliament and Ottawa, a few years ago, on my sixth-grade class trip. Where I live, just outside of Ogdensburg, it is minutes outside the Canadian border, and it is less than 50 miles from my home to Ottawa. When my children were growing up, I used to drive them to hockey practice at rinks in Ontario. My family often visits Ottawa, Brockville, Prescott and Montreal.

Six years ago when an American boater in the Gananoque Narrows was stopped by officers of the Canada Border Services Agency, I and countless others were shocked to learn that his boat was seized. He was told that if he did not immediately pay a $1,000 fine on the spot, he would be handcuffed and forced to lie on his stomach while his boat was towed to Canada, where he could face a penalty up to $25,000.

As someone who used to go for boat rides with friends along the Ontario side of the river to look at your beautiful shoreline, I believe it could have been me or a member of my family that this happened to.

Those of us who call the Thousand Islands region home know that the international border is not a straight line and usually not even in the middle of the river. It zigzags among the islands and sometimes runs through the seaway shipping channel that the citizens of our two countries helped build just a half-century ago.

The area along the border I represent is a very special place where many of my constituents, and even I, can proudly trace our ancestors back to Canada. For those of us who make our homes in the St. Lawrence Valley, the river is more of a neighbourhood that brings us together, rather than a line that divides us.

Unfortunately, since this event, I can honestly say that my family and I, along with many others, have not taken another boat ride along the Canadian shore. It has sent a chill among the border communities I represent, creating a layer of uncertainty at a time when security issues at border crossings are already making more and more people think twice before they travel to Canada.

I want to personally and publicly thank my friend and your colleague Senator Runciman for his leadership on this very important issue. When this troubling incident happened, I did not know him Senator Runciman. I reached out to him as a fellow legislator who represented communities along the St. Lawrence River. I asked him to look into it because I was worried about how it could affect the relationship between our two nations. Senator Runciman took a public stand in favour of international friendship at a time when a lot of people were willing to sacrifice our unique relationship for concerns that had little to do with border security.

This international incident threatened to tear apart the people who live along our common border, but it also helped to bring us together. Because of it, Senator Runciman, Member of Parliament Brown and I created our International Border Caucus with other members of the New York State Senate so we could talk about common problems and ways we could work together to help maintain our relationships with our constituents that they have forged over the centuries. Today your committee has a historic opportunity to bring the people we both represent back together and strengthen the ties that have made our relationship so unique in a dangerous world.

Thank you, and I look forward to any questions you might have.

The Chair: Thank you, senator.

Mr. Brown, please proceed.

Gord Brown, Member of Parliament for Leeds—Grenville— Thousand Islands and Rideau Lakes, as an individual: Thank you very much, Mr. Chairman and senators. It's an honour to have been asked to come to this committee today along with Senator Runciman and New York State Senator Ritchie.

As Senator Ritchie outlined, we've had a number of meetings about this issue over the last number of years. It should also be noted that I have a similar bill before the House of Commons as a private member's bill which is a little further down the order of precedent. We're hoping to see this bill get passed through the Senate and then move, of course, through the House of Commons. The sooner that this can happen, the better, hopefully, for this boating season.

Senators, this bill before us today serves to amend regulations which are not only grossly disproportionate to the goal of protecting Canadian people but also harmful to Canadian principles of legal fairness and detrimental to the small businesses which constitute the backbone of our tourism industry. It's important that we make these changes now to ensure that our legislation reflects the needs of Canadians today rather than nearly 90 years in the past, when this legislation was created to stop the smuggling of alcohol between our nations. The United States has made great progress in developing regulations which not only serve to promote easy travel between our countries but also to effectively protect their country from any potential risks on the water. Canada has yet to strike that same balance as our own laws are so strict that they have caused many American citizens to conclude that travel to Canadian waters is simply not worth the risk or the hassle. The punishments imposed on individuals found in Canadian waters would be considered severe even if the regulations were well known to United States' citizens. Unfortunately, that's not the case.

On a regular basis, Americans enter our waters with the understanding that they are allowed to do so as long as they do not anchor or come ashore. This is a long-standing practice among fishermen, obvious passed from father to son, and only interrupted on the rare occasion that the Canada Border Services Agency happens to come upon an unreported vessel, as we've heard about in the incident from a few years ago. In such instances, despite not knowing that they were breaking the law, these individuals are faced with the immediate and potentially permanent seizure of their vessel, humiliating physical restraints, fines of $1,000 to be paid on the spot, as well as other fines that can range as high as $25,000.

What makes this worse is that this degrading treatment often occurs after the CBSA has determined that the individuals in question have no outstanding criminal record and have no reason to believe that they pose any risk to Canada. This behaviour constitutes a clear violation of the legal principles that the Canadian people have come to consider a fundamental aspect of judicial fairness in our country.

This includes concepts so important to us that we enshrined them in the Charter: the right to life, liberty and security of the person; the right to be secure against unreasonable search and seizure; and the right not to be subject to any cruel or unusual treatment or punishment, including the excessive use or abuse of force by law enforcement officials. These laws were carefully crafted to ensure that no one would face discrimination in Canadian territory, and yet we are so quick to ignore them for something as benign as a fisherman on a day out with his family. It's a disgrace and our Charter deserves more respect than that.

While the Supreme Court decision in Simmons acknowledges our right to control who and what crosses our boundaries, it does not excuse the poor treatment some have received. While the measures used may have been defensible and even necessary when dealing with larger crafts and cargo carriers, they serve no purpose in regulating small vessels.

Any fear of risk should already be dispelled by the fact that the United States has allowed the easy passage of small crafts for a number of years without issue and the fact that American pleasure crafts are already in our waters without causing any trouble to the Canadian people.

Beyond the moral and legal implications of our current legislation, we should also take time to consider the impact it may be having on the Canadian tourism industry. A number of chambers of commerce across Canada have expressed their concern that these incidents on the water are harmful to their marketing efforts. I have had communications from folks in other border areas where there's boundary water, such as in the Sarnia area and in the Kenora area, as well as in Western Canada. While they and many small tourist businesses work hard to present Canada as a friendly, welcoming and fun place to visit, the press in the United States has repeatedly declared that the regulations in question are a testament to the fact that we do not want American visitors at all.

In my own riding of Leeds—Grenville—Thousand Islands and Rideau Lakes, we have already experienced multiple incidents as a result of the current legislation which have caused negative stories to circulate.

This is particularly concerning given the fact that the tourism industry creates more than a million jobs, often providing employment for youth and immigrants as well, who have historically had difficulty in finding and maintaining steady employment. Canada should be doing everything possible to promote our natural beauty, rich history and cultural diversity to the world — not only for our benefit but also to grow our international relationships, especially with our neighbours in the United States.

The proposed amendments in this bill are beneficial to all parties involved and are long overdue. It's time to do away with these regulations that do us no service. I look forward to this committee passing this legislation back to the Senate and then, hopefully, we will see it in the House of Commons as soon as possible. Thank you very much.

The Chair: That's definitely the intent on behalf of the committee and I'm sure of the Senate.

I would like to start with questions from Senator Dagenais and then Senator Saint-Germain.

[Translation]

Senator Dagenais: Welcome to Canada. It's always an honour to meet a senator from the United States, and more precisely from the State of New York. I thank Senator Runciman and Mr. Brown. I understand the situation well, because I used to have a pleasure craft. The Thousand Islands region is a very beautiful place for a boat ride.

However, I would like you to give us some details, because it is difficult to identify the border between the two countries, especially in the Thousand Islands region. Is it possible to locate the border using a GPS? Are there patrol boats that monitor the border to avoid having people find themselves in awkward situations? I will let you answer Ms. Ritchie. Afterwards, the senator or Mr. Brown may want to add some comments. This is a difficult situation for boaters at this time.

[English]

Senator Ritchie: When you're out, many of the boats we're talking about are small. They don't have GPS on them. As soon as you start talking about GPS, that rules out a fairly significant amount of the boats that would be on the water. Even between where I live and Prescott, sometimes it's hard to tell, when you get to the middle of the water, where you actually are. But when you get closer to the Thousand Islands, and you're navigating around the islands, that's where it becomes nearly impossible to figure out whether you're in U.S. or Canadian waters.

Senator Runciman: I would say that's accurate. Also, if you're using a smartphone, you run into huge problems of reception in that area — we all know that — in terms of the roaming costs, which are pretty significant.

In terms of this legislation, that doesn't have any impact because we want people going back and forth. The Canadian boaters entering American waters don't have to face these challenges. It's a different situation in Canada.

CBSA officials have gone to public meetings and said this is the law and we're going to enforce it. The fact that they made an effort to go into the United States and deliver those messages in unequivocal language is the reason that both Gord and I felt it was necessary to introduce legislation to address it.

Mr. Brown: Thank you for that question.

I live along the Thousand Islands area just east of Gananoque. When you're out on the water, there are a lot of small islands. Generally you know, but you could be in the U.S. waters without actually knowing that you are. We always make a joke when we bring people to visit. We say, "Look over the side of the boat and look down for the white line.'' Unfortunately, there is no line that you can see that indicates which country you're in. People from the United States could be in Canadian waters or vice versa without knowing that. It's not something that's going to be easy to define.

Senator Saint-Germain: I'm especially pleased to welcome you, Senator Ritchie, another woman senator. New York is a state that I frequent regularly. I also love the people and the friendship between us and New York State's citizens. I'm from Quebec, Quebec City.

[Translation]

The bill often refers to the expression "subject to the regulations.'' We know that when legislation is implemented, often the issues of feasibility, pragmatism and the difficulties are dealt with in the regulations. So my first question to Senator Runciman or Mr. Brown is this: can you at this time provide us with some details on the nature and scope of the regulation or regulations that will be considered? Have you had some discussions with the authorities, such as the Department of Immigration and the Canada Border Services Agency on this topic?

[English]

Senator Runciman: I think allowing regulation-making authority is necessary to ensure that CBSA has the tools to protect our border.

This is the second piece of legislation. Originally, I had tabled legislation in the fall of last year which dealt only with boaters. My office was approached by CBSA officials, and I have their slides in front of me from that meeting. They asked for a meeting with us with respect to that legislation. They fully support the intent. That's the message they delivered to us. However, they felt the reporting system wasn't comprehensive enough, and there were also changes that they felt would be necessitated with the Immigration and Refugee Protection Act.

What we did on that point was we stepped back and let my initial bill die on the Order Paper. We worked with CBSA officials through the law clerk's office. They brought forward what they felt was appropriate in terms of their needs and addressed their concerns. We have incorporated those into this legislation. That's why I'm very optimistic about the legislation, because we have the support of the CBSA and of the government with respect to moving this forward. These changes with respect to regulations are really primarily driven by their request. Again, we respect what they're going to require. We don't want to tie their hands with respect to ensuring that we have a safe border.

Senator Lankin: Welcome, Senator Ritchie and MP Brown. It's an honour to have you here. We appreciate your taking the time to address us.

Senator Runciman, your last answer I think resolved any questions I had. It was around any technical issues that CBSA may have raised. I appreciate the work you have done in bringing this forward. I am very supportive of your bill and will work with you to facilitate its passage.

I have to apologize to you and to the witnesses who are coming up. I have to leave at this point. This committee does not normally meet at this time. We did this in order to facilitate bringing your bill forward. I have another committee that I'm a member of that I have to go to. I do apologize, but please know that I am appreciative, as another Ontario senator, of your initiative here and your initiative in the house. It's important and I would love to see it in place for the boating season as well.

Senator Beyak: I'd like to add my welcome to a fellow senator. It's an honour to have you here with us.

You've already outlined your constituents' concerns and I appreciate that. Could you elaborate on the public consultations, how they've occurred and what the results have been?

Senator Runciman: Public consultations have primarily been for me — and I think for Gord, but he can expand — essentially in the Thousand Islands area with the chambers of commerce, the Thousand Islands boaters associations, municipal councils and tourism organizations. We also have one of the witnesses coming forward here from the New York State tourism sector, and with Senator Ritchie and other colleagues on the New York State side as well. That was in terms of the initial legislation that I have since withdrawn.

The additional consultation with respect to some of the more comprehensive changes really is as a result of our discussions in working with Canada Border Services Agency and with the Office of the Law Clerk in the Senate. We were working in conjunction with them, making sure that we had a back-and-forth over a period of seven or eight weeks.

At second reading, if you recall, one of the things I wanted to do very clearly was thank the law clerk's office in the Senate. The individual who worked on this and worked overtime, worked many hours. There was a lot of frustration — I think she must have been pulling her hair — but she did a wonderful job. It speaks volumes about the people in the law clerk's office of the Senate, who do such good work. They were so dedicated in terms of the timeline and hoping to have this legislation in place before next spring that she went the extra mile, to say the least, to help us get to this stage.

Mr. Brown: Thank you for that question. I've heard from many constituents about this.

You're also going to hear later from Gary DeYoung from the 1000 Islands International Tourism Council. As well, there's a cross-border group of residents from the Thousand Islands called the Thousand Islands Association. They have made many representations to me over the last couple of years about how to see this resolved and really harmonize between the two countries. We talk so much, especially in the Beyond the Border initiative, of harmonizing regulations. This is an example of a regulation that's not harmonized. There's definitely a lot of support.

The three of us here as witnesses today are familiar with this because of the folks in our region, but as I said earlier, we're hearing from folks in other boundary water, cross-border areas. This is not just an issue that's isolated in the Thousand Islands but is really all across the entire Canada-U.S. border where there are boundary waters.

Senator White: Have you looked at whether or not this legislation would also cover those, for example, on the West Coast, in particular along the coast of northern British Columbia? There's a lot of travel in between the southern Alaskan tip and northern B.C. I know there were concerns back in the late 1990s, for sure. There were people being stopped for doing nothing and in some cases being arrested for illegally fishing. As to whether the fish were American or Canadian depended on the accent, I guess.

Senator Runciman: We'll cover those kinds of concerns.

Senator White: So it's not just inland waters?

Senator Runciman: No.

There are also other concerns which I can't get into a lot of detail about but, for example, whale watching in the Gulf of St. Lawrence. That sort of thing will be covered by the legislation.

Senator White: I know there are real issues between New York State and Ontario/Quebec in relation to illegal drug smuggling and firearms. Have been there been discussions as well with various police agencies, including the RCMP, about whether or not they're concerned about such legislation and whether it would negatively impact on their ability to perform their duties?

Senator Runciman: No, we haven't heard any feedback. Certainly, in the St. Lawrence Valley region, there's been considerable publicity about this legislation and public calls for it to be enacted. I will say that I haven't reached out to policing authorities, but CBSA obviously has a critical role to play with respect to that concern, as well as the RCMP and others.

We have a witness coming up in the next panel who can perhaps more adequately address that issue. I haven't heard of any negative feedback or concerns expressed by anyone in the policing community, and certainly CBSA has been a partner in the development of this legislation.

Senator White: Thanks again to all of you for being here, particularly you, senator.

Senator Baker: When this law was passed back in 1985, we did not intend for it to have such absurd an effect as it presently has. When we passed the law — and I'm on record on this and so was Minister MacKay, as I recall in 1985 — we both made the point and we're quoted in case law today that that was not the intent of the legislation. Unfortunately, the Ontario Court of Appeal, in a case called R. v. Cook, interpreted the legislation as the officials were interpreting the legislation — that is, in the wording that's there.

However, Senator Runciman, MP Gord Brown and Senator Patty Ritchie have found support in the Federal Court of Canada. I just want to put this on the record, Mr. Chairman. The Federal Court has intervened to say, in judgment No. 962, a case called Flavell v. Deputy M.N.R., in which the headnote says that the ministry is arguing that all goods brought into Canada are being imported, even if acquired in Canada under section 12(1) of the Customs Act; ordinary citizen not interpreting "imported'' in that way; "imported'' implying goods of foreign origin; the ministry's interpretation is having a punitive effect contrary to the values expressed in the act.

Then the Federal Court went on to say that where provisions are ambiguous, they should be interpreted so as not to lead to absurd results. To adopt the ministry's interpretation would be to promote that systemic, differential treatment of unsuspecting, uninformed citizens in a punitive way.

So Ms. Ritchie, Senator Runciman and MP Brown do have support for these changes from the Federal Court. Also, I am responsible for this bill as far as the government representatives in the Senate are concerned.

I want to congratulate Senator Runciman for all the work that he's done in coordinating the amendments with the government and with the Department of Justice.

I am here to say that we now all support this piece of legislation and hopefully, as Mr. Brown has pointed out, it will receive quick passage through the Senate and then through the House of Commons, given that the government has signified that they are now in support of Senator Runciman's bill.

The Chair: Do you have any comments, Senator Runciman?

Senator Runciman: No, but I would thank Senator Baker again for the research he does with respect to reading case law for many hours every day. It is very helpful at committee — sometimes.

The Chair: Thank you, Senator Baker, for being so brief.

Senator Kenny: What comments have you had from the RCMP? The area between Kingston and Cornwall is rife with smuggling. The RCMP has a special detachment of 50 constables to address the problems, particularly related to tobacco. I'd be curious to know what you've heard on this, Senator Runciman.

Senator Runciman: I did respond to this earlier, Senator Kenny. I will be quite frank: I did not reach out to the RCMP because of the CBSA approach to be supportive of this legislation with the changes that they recommended.

I did indicate that in the Cornwall to Kingston area, there has been significant public attention paid to this issue and the legislation that has been put forward and calls for this kind of legislation over the past few years. Neither I nor Gord Brown has been approached by any policing agency expressing concern that this may in some way make their jobs more difficult.

I can't see it having that impact but I have to say, senator, we did not reach out to them. There are witnesses coming up in the next panel, perhaps, or at least one witness on the security side that may be able to address that more fully than I can.

Senator Kenny: I think as a committee we should ensure that the RCMP has an opportunity to comment on this, chair.

In bringing in a lot of additional constables like the RCMP is doing in the Cornwall area, the first thing that happens usually is displacement of the criminal activity. It either goes upriver or downriver. But people know it's not healthy to be doing it in the Cornwall area if there are that many police.

I think it would be worth getting that point of view from the police. That might expedite the bill getting out of this committee, notwithstanding what Senator Baker might have thought.

[Translation]

Senator Dagenais: My question is on the same topic as the one raised by Senator Kenny.

I remember this very well because in the 1990s, I worked on the Akwesasne reserve, and the St. Lawrence runs through it. I believe there were four police forces that worked on this indigenous reserve at the time: the RCMP, the Ontario Provincial Police, the New York State Police, and the Sûreté du Québec, of course. This reserve goes from Quebec to the State of New York, and through some of Ontario. Would there not be some way of ensuring cooperation among the various police services and the Border Services Agency? It is quite a strategic region, and as Senator Kenny mentioned, whether we like it or not there is always contraband in cigarettes, and perhaps other products that I don't have to discuss here.

Perhaps the next witnesses will be able to provide us with information on what has been put in place. The Thousand Islands are a focal point for leisure and tourism, but the Cornwall region is also used for other things, unfortunately.

[English]

The Chair: Perhaps I could ask a couple of questions before we excuse the witnesses.

Senator Kenny: Please be brief, chair.

The Chair: I will be brief. My mentor Senator Baker is here, and I always do what he says.

Perhaps, Senator Ritchie, I could put a question to you. You've heard concerns on the other side of law enforcement, yet at the same time you obviously have a federal statute — I believe it would be a federal statute — in place that allows and permits Canadian pleasure craft to go over to the American side and not be apprehended.

From your perspective and that of your law enforcement agencies, do they have any concerns with the present law in place on the American side that permits the present utilization of Canadian pleasure crafts and other activities in those waterways? I had the pleasure of traversing those waterways with Senator Runciman, and I understand the confusion.

Senator Ritchie: I actually did meet with our border patrol agency to discuss this. Apparently, for years the Canadian officials did not enforce this because we hadn't run into this before.

Once this came up, we did have a number of meetings to discuss it, to see if maybe this was just a one-time incident that might have happened and that there was confusion, but we were told that, no, now this was what was going to happen. Canada was going to enforce the law in place, and if you were in your boat and went over a few feet and crossed into Canadian territory without knowing it, this was the potential.

That has not happened on our side. I have met with law enforcement, and it's not an issue. It has not come up that that same thing would happen if a Canadian were to come across to American waters.

As someone who lives there, this was a huge concern for many who live in the area and also for many tourists who come up — and even those that have charter businesses and rentals. If there's a boat rental, the first thing people are told now is, "When you get out there, don't go too far from shore because you don't know what's going to happen.'' Whether this story grew into something that was more, I don't know, but it has garnered a lot of attention.

Those who have lived in the area their entire life are now afraid to venture out too far away from the shore because they don't know what's going to happen.

The Chair: So we can cut to the chase here, and so we have it on the record clearly, there are no concerns from the point of view of the legislation that is on the American side and the fact that pleasure boats and other activities can go on? They can go on without being apprehended other than the fact if they're doing something criminal, obviously. The fact is that your law enforcement agents have no problems with it. Subsequently, it would follow that on the Canadian side, the same should apply?

Senator Ritchie: I'm only a New York State representative, not a federal representative. We met with our local law enforcement many times after this happened. We did ask them to try to clarify with local residents who were fearful about going back out in their boats. We have not heard anything from law enforcement on our side that they would be opposed to this happening or would expect that they would do anything similar to what happened with the gentleman who crossed the water.

Senator Runciman: I'm just reflecting on this a little more. I don't see how this is going to impact on policing in any way, shape or form. When you think about the circumstances that we've been operating under, the norm is that people are not stopped and have their boat seized. We're talking about not anchoring or not mooring or not touching another boat. The bill itself allows the authorities to intervene and stop, if they deem it's necessary.

I don't see this having any real impact in terms of increasing smuggling in the St. Lawrence River area because the authority is retained. If the circumstance justifies action, action can be taken.

The Chair: I want to get that clarified for the record on the American side versus our side. I want to follow up, if I could, Senator Runciman.

In the consultations that led to the actual drafting of the bill before us, I would have assumed that the government departments involved in giving advice to the drafting of the bill would have at least, if not officially, unofficially touched base with the law enforcement agencies to see where they would have a problem with a private member's bill. Is that not correct?

Senator Runciman: The ministry supporting this legislation is responsible for the RCMP. I think that speaks volumes.

The Chair: Do you have anything further, Senator Runciman, that you would like to leave with the committee?

Senator Runciman: No.

The Chair: I would like to thank our witnesses, and a special welcome to Senator Ritchie. We really appreciate you coming in. We certainly value your friendship. Hopefully, this is another piece of legislation, as MP Brown has indicated, to harmonize both sides of the border, what we do and what we should be doing.

Senator Runciman: Just to put on the record about Senator Ritchie being here, she had to drive four and a half hours through a heck of a storm last night from Albany to get to Ogdensburg, New York, to be here. So a special thank you.

The Chair: A very special thank you. It was a nice way to come back after being here in the sixth grade to now. I hope the highway has improved.

Colleagues, we are now joined by Mr. Gary DeYoung, Tourism Director, 1000 Islands International Tourism Council; and Mr. Scott Newark, Public Policy Consultant, DSN Consulting, who has worked on issues related to border security.

I understand that you each have an opening statement. Please begin, Mr. DeYoung.

Gary DeYoung, Tourism Director, 1000 Islands International Tourism Council: Thank you, Mr. Chair and senators.

The Thousand Islands International Tourism Council was formed in 1956 to promote tourism in the binational region of the Thousand Islands. It is a partnership of Canadian and American stakeholders who see that collaboration and cooperation are essential in drawing tourists to the region from across the world.

The Ontario Ministry of Tourism estimates that 2014 visitor spending totalled $946 million in its "Great Waterway'' region along eastern Ontario. New York State estimates $497 million was spent by visitors in 2015 in a similar region on the U.S. side. That spending supports thousands of Canadian and American jobs.

The St. Lawrence River is the core attraction for the region. For example, about 1 million tickets are sold annually for scenic boat tours of the Thousand Islands. Private boating, fishing, diving and paddling on the river are also popular. Signature attractions such as Brockville's Aquatarium and the Antique Boat Museum in Clayton, New York, are tourism destinations based on the region's maritime heritage. In short, our region's economy depends on its reputation as a boater-friendly destination.

The 2011 incident that Senator Runciman has discussed in relationship to this legislation marked a change in traditional understanding and undermined the region's reputation as a welcoming destination. Fairly or not, Americans take the current policy as an affront and an indication that they are not welcome in Canada.

Boaters are now faced with contradictory and confusing policies. On the one hand, American authorities hold that simply cruising into Canadian waters and returning to the U.S. does not constitute leaving the country. On the other hand, Canadian authorities hold that these same trips should be reported as border crossings.

Traditionally, the understanding was that an angler could drift fish in both countries' waters as long as they held a valid state or provincial licence and didn't go to anchor. But the Thousand Islands is a unique area where the border zigzags among islands. It is not always easy to determine one's position in relationship to the border, especially for visitors who are not intimately familiar with the channels.

In light of the publicity surrounding the enforcement of the border rules, some boaters have decided to simply avoid the area rather than deal with the border. Ironically, what had been one of the region's strongest selling points, cruising among the Thousand Islands, is now a drawback.

The situation is also a point of annoyance for anglers, and residents and cottagers. The border can run very close to the shore of islands. Where I live, the channel between New York and Wolfe Island, Ontario, is nearly two kilometres wide. But the border runs less than 200 metres off the south shore of Wolfe Island. To stay in Canada when boating, some Wolfe Islanders need to avoid 90 per cent of the channel in front of their property.

The St. Lawrence River has shaped the culture of the Thousand Islands, supported our economy and defined our sense of place. So while this bill may simply seem an exercise in legal mechanics, it is truly a signal of respect to Canadians and Americans that view the Thousand Islands as a broad community they share.

In going back to the angler situation, we find that tournament organizers now need to take into account what the border policy is. Charter captains have changed their operations to avoid crossing the border, and some fishermen are reluctant to visit the area for fear of accidentally running afoul of officials.

It's difficult to quantify losses. Anecdotal evidence is that some tournaments and individual anglers have stayed away. One indicator is the number of short-term and non-resident fishing licences sold by vendors in St. Lawrence County and Jefferson County, New York. Those are the two counties that border the St. Lawrence and New York. Those are the type of licences normally sold to tourists. In 2010, local sales of those licences tallied over 18,000. In 2015, the same licences sales tallied less than 11,000.

The bill that you are considering will codify rules on the St. Lawrence. It will clear up confusion and align U.S. and Canadian policy. It will encourage visitors to once again fully enjoy a great natural resource and enhance our ability to sell a beautiful region to the world.

Thank you for considering this common sense change that mitigates the impact of what some in the travel industry are calling "border hassles.'' The industry relies on effective public safety and values government policies that protect both residents and visitors, but it is also very susceptible to the negative impacts of policies that hinder the free flow of travellers, whether through perception or practice.

The Chair: Thank you very much, sir.

We will now go to Mr. Newark.

Scott Newark, Public Policy Consultant, DSN Consulting: Thank you, senators, for the invitation to be here. It is a particular honour to be before this committee.

I have followed the work of this committee for a long time, going back even to when I was the executive officer of the Canadian police association. As some of you know, I was one of the people that did the review that led to the arming of Canada Border Services Agency officers, which, to put it mildly, was not particularly well received by CBSA officials at the time. It was this committee that posed precise questions in relation to some of the enforcement issues and exposed things that people weren't really aware of in terms of deficiencies, which led to a lot of improvements.

Most recently, there was the work on the CBSA study that you did on national security. It is sincerely an honour to be present in front of this committee which has this history and the kind of work that this committee does. I know sometimes when you're in the middle of it, you can escape it, but, trust me, the work that you do is incredibly important in ensuring that we have substantive and operationally effective policies.

I have to confess that, like Senator Runciman, I live in Brockville, but I am not a boater.

The Chair: You don't have a conflict of interest?

Mr. Newark: I don't think so. As I say, a lot of my friends actually are boaters. What they described in terms of the outrage when this incident happened was real. People couldn't believe it.

Brockville is relatively — I'd almost use the word conservative — set in its ways. The fact that this was happening was an absolute shock to people.

To be blunt, my initial reaction was not so much about the inconvenience of the boaters but from a law enforcement perspective, if you will. What were our CBSA officers doing, stopping somebody who was coming through and had crossed over the water? Why were they doing that instead of, for example, doing mobile enforcement work between ports of entry, which they're not allowed to do; or participating in the Shiprider program, which they're not allowed to do? That's what struck me about it, namely, what a waste of operational resources to have people engaged in this kind of behaviour when there is significantly more important work that could and should be done.

I remember one time immediately after 9/11 when then Minister Runciman, myself and then Toronto Police Chief Julian Fantino were travelling to Washington for something. There was enhanced security as we were going through the airport, to put it mildly. It struck me at the time — and I think it's relevant to the issue when this was being done — that more security is not necessarily better security. That's what strikes me about having dedicated and devoted resources from the CBSA. I think the description you got from some of the witnesses was quite accurate, that once this happened and the outrage was there, the CBSA doubled down on the position that it was taking.

What is really important about this bill is that, number one, it leaves that residual discretionary authority for officers to enforce in the strictest level, if you will. Even more so, it has specifically identified exceptions whereby this new exemption will not apply, for example, if you land in the other country. That's fairly obvious; we should have that restriction. If you're actually anchoring, that's an issue that at least attracts some attention. The one that I think is the most significant is boats coming together.

The study on "arming'' was launched by the frontline officers' union. I continue to do work with them as well as with different security technology companies that are specifically related to border security and to some of the things that this bill deals with. For example, given that this is now what will potentially be the law and you've got these exceptions, how are we going to detect that those boats coming together is actually happening?

The good news is that there are ways to do that. I can get into that in a little bit. That was part of the Beyond the Border agreement and action plan, where Canada and the United States jointly developed an assessment of gaps and vulnerabilities. That was completed.

Also in the agreement was important language which said that the two countries would jointly — and I emphasize the word "jointly'' — procure and deploy technologies to be able to deal with the vulnerabilities that were addressed.

That has not actually taken place. It looked as though it was going to in 2013. I can get into the details about it specifically, but this kind of legislation, with a greater focus on what the better priorities are in relation to border security issues, may be an opportunity to ask some pointed questions about why we aren't doing this and why we haven't gotten this done, and making sure the front-line officers have the tools they need to deal with the reality of cross-border smuggling. Because it is real — there's no question about that. This would potentially free up personnel resources to assist in that important work.

The legislation itself, as I say, retained the overall discretion, and it has specific exceptions to it, too. I don't think there's anything necessarily to be concerned about in relation to the fact that some of the definitions are left to regulation. So it is something that I think would improve the targeting of resources and priorities. There are other operational things that we can actually do that don't require legislation and will actually assist in the ultimate goal of the coexistence of legitimate trade and travel and intelligence-led security.

I want to close on that point. Canada has a significant history of intelligence-led enforcement and of joint force operations. All you have to do if you're considering border security is to look at a map of the Canada-U.S. border. We don't have the resources to have everybody there, so intelligence-led enforcement is a fundamental of how we do things, and I think this legislation actually supports it.

The Chair: Thank you very much. Just to emphasize that element before we go to the questioners, we not only share the border; we share the defence of North America with our neighbours in the United States of America. I think that's an important principle to understand, and that transcends itself to the question of the Canada Border Services Agency, as well as American customs and how we do it.

One thing I would like to leave on the record before I go further is the question of some of the officers and how they enforce the law and approach individuals. I think we have, in some cases, problems on both sides of the border with respect to those situations where common sense should apply, and it doesn't. That doesn't help to make friends between us when those situations occur. We could speak about those later.

We will start with Senator Wallin.

Senator Wallin: I have two questions. One of them might not be that quick, and we could have asked it of the earlier witnesses, about the doubling down, as you described, by the CBSA. It seems to have come from one incident, because there are no such other dramatic incidents. They were challenged on that and the fine had to be reduced. They got their backs up and said, "Watch this space.'' Is that the psychology of where we got to on this?

Mr. Newark: That was my impression, watching from afar.

That's one of the other things: I've never seen any empirical data that shows that boaters going back and forth across the border somehow are a crime threat. I've never seen any empirical data on that whatsoever. CBSA put out a policy and it was rooted in the wording of the law that they had the authority to do it, but as you say, there did appear to be this single incident that caused some ruffled feathers, as it were.

Senator Wallin: Perhaps my more substantive question can be more easily explained. Some things are left to regulatory definition, and one of those is making contact, which is pretty wide open. That could be throwing something from one boat to another. It could be waving. Who gets to decide?

Mr. Newark: That's in the regulatory authority, but I can tell you specifically that the issue of boats coming together has been identified by law enforcement, to one of the technology companies that I do some work with, as a big red flag, whether it's people being smuggled, drugs, guns or anything else, because they're coming from opposite sides. When they're coming from opposite sides of the border and they come together, the police need to be alerted.

One of the great challenges, unlike a lot of war or military environments, is not that you're looking at a single target; you recognize that single target coming towards your facility is a threat. It's that you have a gazillion boats out there. You need to be looking for the behaviours that raise those red flags. That is generally known, in my experience in law enforcement, and we do have technology that is working and currently in place with law enforcement organizations throughout Canada, particularly in the Great Lakes. I can give you more detail about that if you're interested.

Senator Saint-Germain: Regarding this technology, this is what interests me also. Mr. Newark, at one time you were involved as a consultant in a Defence Research and Development Canada study on the use of networked small radars to provide situational awareness of the maritime environment around the G20 summit held near Lake Ontario in 2010. This radar used in the study was provided by a company called Accipiter, which has offices in New York and Ontario and describes itself as a "North American company.''

This study found that:

. . . the networked radar technology increased the operational effectiveness as well as cost-effectiveness of the marine security efforts. Because of the maritime domain awareness and common operating picture provided, the users reported that vessel interdictions occurred during the Summit that may otherwise not have occurred. The technology was successful in detecting and tracking vessels of interest with respect to cross border activity.

How, in your view, would reporting exemptions proposed in Bill S-233impact situational awareness in the Great Lakes/St. Lawrence Seaway region?

Mr. Newark: As I said, I'm glad to see that there are definitions of the exceptions to the general rule that you don't have to report.

You're absolutely correct: There's a bit of a history to the DRDC study. Accipiter, which one of the companies I do work with, makes really cool, automated analytical radar so that police can tell the technology what we're interested in. The two boats coming together was an example: They pre-programmed the software so it was tracking all the vessels. When it sees that, it generates an automated alert to law enforcement so law enforcement can decide whether they want to go ahead and actually look at it.

The company was headquartered in Fonthill, in the Niagara Peninsula, and had received a grant from what, in those days, was called the Public Security Technical Program, or PSTP, which is part of the DRDC. It set up this unit at the Marine Security Operations Centre run by the RCMP in the western Great Lakes. When the G20 summit came at the last second — if you remember, they decided to move it to Toronto — everybody scrambled around how they were going to get marine domain awareness.

I think it was the RCMP that realized, "We have this unit here.'' So they checked around and the company had one on its roof and another at some protected site around Hamilton, I think. It actually had radar nodes at the Toronto Island airport for bird strikes. They were able to pull the whole thing together and it was successful.

After the fact, when the DRDC realized it was successful, there was a debrief on it. They asked me if I would help them do a review of it in more detail than normal, so I interviewed the officers from the different police units involved in it to help prepare the report.

Where I think it will be relevant to the stuff in this bill is that the same kind of lessons learned that came out of the G20 summit, in the sense of what we can do to have that greater intelligence awareness and to make marine domain awareness — and also low-flying aircraft, by the way, like drones too — will apply to this. That will not be legislative. You don't need legislation to do that.

The company did a study with, I think, the New York State police years ago, and they were detecting vessels coming from Canadian waters that crossed the border. That was the first alert. They didn't necessarily engage and send anybody out because a thousand boats were doing that. But as they came closer to the U.S. border, that generated a second alert. Then, if they were heading toward a non-designated port of entry in the U.S., that's when they dispatched either a boat or, if they didn't have it, a vehicle to meet the guys at the dock. That's the kind of stuff that I think we could actually do.

The good news is that back in 2013, as part of what I believe was the fulfillment of the Beyond the Border agreement, it was announced that the RCMP was given $92 million for anti-tobacco smuggling to deploy sensors from the Quebec-Maine to the Oakville border. Nothing happened. In 2014, it was re-announced — I was at the conference — as the Border Integrity Technology Enhancement Program, or BITEP, $92 million to do exactly the same thing; it just got reprofiled.

It's never been done. It hasn't actually been deployed. I've heard different versions as to whether or not there were procurement problems in the RCMP or institutional competition in U.S. agencies. But that is designed to deploy those sensor technologies across that area of borders that would mean we would help enable the kind of stuff that has been identified in this bill. I think there are actually some resources out there and some mechanisms to help make the bill even more effective in what it intends to do.

Senator Wallin: I have a follow-up, and I think you've answered it. Is that technology in play?

Mr. Newark: Yes.

[Translation]

Senator Dagenais: I'd like to get back to the matter of technology. I believe I understood that you were with the Canadian Police Association. In the Cornwall region, there must be a protocol for police surveillance, either from the Quebec forces, Ontario, the RCMP or the border services.

On Lake Champlain it is relatively easy for the Border Services Agency to board vessels. In other words, there's no demarcation line. Yet the border is easier to locate on Lake Champlain. Certain ships were detected by radar. Is technology being used on the Great Lakes and the St. Lawrence Seaway? Many ships coming from Cornwall have to go through the St. Catherine locks in Montreal. Their passage is recorded, but afterwards we don't know what happens to them on the river. Do you know if technology is used on parts of the St. Lawrence River, such as the Seaway or the Great Lakes?

[English]

Mr. Newark: Yes. It's at the MSOC in western Great Lakes, Lake Ontario, which is a joint force RCMP, CBSA, Department of National Defence, Fisheries and Oceans. It is also now increasingly deployed in the Windsor Lakes/St. Clair area, and there was a cross-border deployment in Quebec at an inland cross-border lake. It comes in different nodes. There are fixed and mobile nodes, trailers, that the RCMP has. You're quite correct in the relevance of its application in the Cornwall area.

The Chair: I'd like to follow up on this, because we keep talking about the Canadian agencies and primarily the RCMP. But we haven't talked about the American responsibility, because they do have their responsibilities in the same area.

Mr. DeYoung, do you have any information with respect to exactly what's happening on the American side? We don't need two drones in the same place.

Mr. DeYoung: I'm a tourism promotion guy. I can tell you there's a lot of law enforcement presence on the American side, both at the state and federal level, Coast Guard, customs and immigration, state patrol. Even the county sheriffs are on the water with boats and eyes.

Mr. Newark: Especially in the Detroit area, there is U.S. pickup on the use of the technology, and also on a border farther south than the Canada-U.S. border, on the U.S.-Mexico border.

The point you make about the importance of it being a joint deployment is, in my opinion, absolutely critical, because we don't need for us to have one system and for them to have another system, and then we try to figure out how we're going to integrate the systems. Part of the genius of the Beyond the Border agreement was the amount of detail it included, specifically in relation to those kinds of joint efforts. Not only will you more effectively increase the deployment efficiency, but also at half the cost.

The other thing learned as part of this study was that there are multiple uses for it other than just border security. For example, the nodes they used were for bird strikes on the Toronto Island airport. They didn't need the border security information, but their radar nodes could plug into the larger system to give broader coverage.

If you're at a seaport or at a marine situate nuclear power plant, they have perimeter security issues that they want to know about. They get that information, but they plug into the larger system to reduce the single costs, spread the costs out and actually get the broader and faster deployment of it. That was one of the things that several of the police officers that I interviewed, the agencies, commented on as well. They saw the value of that.

It was a good example of the importance of some of the policy implications, because one of their complaints was that it was so difficult to get authorizations to share information. There was this sort of reflex "no can do'' approach to things.

As part of that, I ended up doing a study on authorizations for information sharing amongst law enforcement agencies, so the RCMP Act, the CBSA Act, IRPA, and the provincial Police Services Act, as well as the Privacy Act. There are an awful lot of authorizations for law enforcement or security-based information sharing. My favourite in the Privacy Act is section 8(2)(m), which says that the holder of what is otherwise personal information can share it or release it if they determine that the public interest in releasing the information outweighs the privacy interest in concealing it. When you're talking about law enforcement and security, frankly, that is something that makes a pretty good argument in terms of why we should be sharing some of this information.

Senator Beyak: Thank you, gentlemen. My questions were the same as the first panel, about the public consultation and the support of Canada for these changes, and you've answered them pretty well by telling me about the outrage that Canadians felt over the double standard. Is there anything you'd like to add?

Mr. DeYoung: I can just say that in my memory, going back to 2011, our agency worked with other American organizations, such as the Antique Boat Museum in Clayton. We filled a room at the Antique Boat Museum in Clayton with 50 or 60 boaters, charter captains. We invited both the CBSA and the American authorities in to answer questions. The clear consensus of both the American and Canadian boaters was that they took affront at this. It was against their tradition. Though it's going back six years now, I don't think the opinions have changed too much.

The Chair: Mr. DeYoung, you mentioned in your opening address that we've seen a decline in fishing licences from 18,000 to 10,000 — I think that was the number — which is pretty substantial. I take it from those numbers that Canadians are buying the licences and that's basically who you're catering to on the American side. The way I understand it is that if I lived there, I would have both a Canadian and American licence, so there wouldn't be any question whose fish it was. Is that correct?

Mr. DeYoung: Correct. If you went to the St. Lawrence and intended to fish in both Ontario and New York waters, you would have a licence for the province and a licence for New York. There is no reciprocity there. Most of those licences I was talking about were people coming for a short time. A lot of those were New Yorkers and Ontarians, but it is also a very popular region for Pennsylvania fishermen. Americans from out of state come to the region and in particular find it very confusing.

The Chair: Do you have a reciprocity arrangement in the case of the Province of Ontario and New York?

Mr. DeYoung: Not for fishing licences, no.

The Chair: Just for your information, I represent the Yukon, and we have a reciprocity agreement between Alaska and Yukon in respect to the purchase of fishing licences. You still have to purchase a fishing licence, but you don't have to pay out-of-state fees. You're seen as a resident and they're seen as a resident in our region. It works very well. I pass that on to you as another area where people can work together as neighbours.

Mr. Newark, I want to follow up on the fact that the law presently in place on the American side is basically the same law and enforcement that we want on the Canadian side. My understanding is that on the American side, they're quite happy with the way they're enforcing their laws in allowing and permitting these pleasure crafts and others to go about their business without fear of being apprehended. Is that correct?

Mr. Newark: I've never heard anything to the contrary, sir, but the interactions I've had have been with law enforcement. It's been focused on the law enforcement issues. I've never had anybody raise with me that these recreational boaters were a major problem.

There are definitely cross-border smuggling issues, and I can tell you that, as recent events have proven, the illegal crossing of our border will be worth keeping an eye on. It's not going to be confined to one domain or another. You will need that intelligence awareness as well, too. That's down the road, though.

The Chair: Colleagues, I want to thank the witnesses, especially Mr. DeYoung, who has travelled so far to be with us. We're so pleased to be able to host you.

Thank you, Mr. Newark, for your wealth of information in view of your past history and your various occupations over a long period of time. We value your advice.

Colleagues, we will probably bring the bill back to the committee towards the end of February. I'm going to try to see if we can expedite it as quickly as we can in order that the Senate can consider it so that it can go to the House of Commons for consideration. It will take a lot of cooperation to move the bill along.

Once again, thank you very much.

(The committee adjourned.)

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