Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 17 - Evidence - Meeting of November 27, 2017
OTTAWA, Monday, November 27, 2017
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, met this day at 1:01 p.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the Standing Senate Committee on National Security and Defence. Before we begin, I will ask the senators to introduce themselves starting with our deputy chair.
[Translation]
Senator Dagenais: Senator Jean-Guy Dagenais from Quebec.
[English]
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator McIntyre: Paul McIntyre, New Brunswick.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec. Welcome, sir.
[English]
Senator Black: Minister, Doug Black from Alberta. I’m a sponsor of the bill and not a member of this committee. I am here to ensure that the committee’s concerns are addressed.
Senator Brazeau: Patrick Brazeau, Quebec.
Senator Richards: David Richards, New Brunswick.
The Chair: Thank you.
This afternoon, we begin our study of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, also known as the preclearance act, 2016. To introduce the bill, we are pleased to welcome back the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. He is accompanied by a number of officials: from Public Safety Canada, Jill Wherrett, Assistant Deputy Minister, Portfolio Affairs and Communications Branch; from Canada Border Services Agency, Martin Bolduc, Vice President, Programs Branch; and from the Department of Justice, Scott Nesbitt, Legal Counsel.
Colleagues, I would remind you that the minister is here until two o’clock, but officials are prepared to remain after his departure to continue answering our questions.
Minister, the floor is yours.
Hon. Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Thank you very much, Madam Chair, and good afternoon, honourable senators.
It is my pleasure to be back before this committee in its reconstituted form. There are some familiar faces around the table and a lot of new members, and I certainly look forward to getting to know everyone better as we delve into all of the various matters related to national security, including Bill C-23. Thank you for introducing the officials who are with me today from the department and from CBSA.
It’s important to mention from the outset that while the legislation that we have before us today falls clearly within my responsibilities for public safety because it obviously relates to border procedures, it is primarily an economic piece of legislation.
[Translation]
So I will start with the economic benefits of the bill before addressing the concerns raised by the honourable senators during debate at second reading.
[English]
Bill C-23 is, of course, the bill that establishes a renewed framework for expanded pre-clearance operations between Canada and the United States. We have had pre-clearance in the air mode, moving from Canada into the United States, for the better part of 60 years, since the early 1950s. The benefits have been broadly acknowledged. By allowing U.S.-bound travellers to complete American customs and immigration procedures while they are still in Canada, pre-clearance prevents lineups and delays upon arrival in the United States, enables direct flights to U.S. airports that would otherwise handle only domestic traffic, and allows Canadians to satisfy American border procedures while they are still in Canada and under the umbrella of Canadian laws and the Canadian Constitution.
Pre-clearance currently exists at eight Canadian airports — Vancouver, Edmonton, Calgary, Winnipeg, Toronto Pearson, Ottawa, Montreal and Halifax — as well as, in a more limited form, at certain marine and rail locations in British Columbia.
Naturally, when travelling becomes faster and easier, that is a benefit in itself, but it also means more tourists and business travellers visiting or transiting through Canadian cities while all of the economic spinoffs accrue from that traffic.
At Toronto Pearson Airport, for instance, six million passengers were pre-cleared for travel into the United States last year. Over a million of them flew to American destinations that do not normally receive international flights, but they receive flights from Canada because the passengers are pre-cleared. Therefore, they don’t have to have customs facilities in those airports on the U.S. side.
Toronto Pearson Airport has thus become the fourth-largest air point of entry into the United States, after JFK Airport, Miami International Airport and LAX. That would not be possible if it were not for pre-clearance. In fact, Toronto would have access to only 27 locations in the United States if we didn’t have pre-clearance. Because we do have pre-clearance, they have access to 50 or more, which is an obvious advantage.
Vancouver International Airport estimates that the flights it serves that depend on pre-clearance are responsible for over $300 million in total economic output and nearly 2,000 jobs. So airport authorities, chambers of commerce, transportation service providers, municipal governments, business leaders are all strongly in support of what we are trying to accomplish here in Bill C-23.
It is no surprise that pre-clearance is an attractive prospect for locations that don’t yet have it. Sites that do have it would like to broaden its use. Any expansion requires a framework agreement that is agreed upon by both Canada and the United States. We have that agreement in place. It was signed in the spring of 2015. It’s called the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America. Bill C-23 would implement that agreement and allow the expansion of pre-clearance to get under way.
Incidentally, the corresponding legislation in the United States was adopted by the U.S. Congress at the very end of last year. It was adopted unanimously in both houses and signed into law.
We have reached an agreement in principle with the U.S., once all the legal steps are taken with the legislation and regulations, to begin the expansion with Jean-Lesage International Airport in Quebec City, Billy Bishop Toronto City Airport, and, in the rail mode, at Montreal central station, the train going to New York City, and the Rocky Mountaineer train route that runs between Seattle and destinations in British Columbia and Alberta.
I could continue with the economic advantages, but I haven’t had a chance to touch on the fascinating and important topic of pre-clearance in cargo. What exists now is related to passenger traffic, but there are huge economic advantages to be gained from pre-clearance in cargo operations and a number of other economic advantages. I know time is running short. I do want to address some of the points raised in the Senate with respect to Bill C-23 at second reading.
First, I know some senators are concerned about the authority of U.S. pre-clearance officers under Bill C-23. The fact is, compared to what exists now, these authorities will change very little from the current state of affairs. The only real distinction is that if a U.S. pre-clearance officer finds there are grounds for a strip search to be conducted, the U.S. officer may, in the exceptional circumstance that a Canadian officer is not available to do the search, proceed on their own, subject to very explicit rules for the protection of human rights and the reporting of the incident.
Under existing law, it has been an exceedingly rare occurrence for a U.S. officer to even request such a search, and there is no record over these last 60-some years of any occasion when a Canadian officer would have disagreed or declined to conduct a search.
The grounds to conduct a search will remain essentially unchanged, that is, reasonable suspicion that a person is trying to smuggle something or is carrying something dangerous on their person. That is the one change in relation to these searches, that a U.S. officer would first ask a Canadian officer to do the search. In every case historically, a Canadian officer has been there and has conducted the search, but in the extraordinary circumstance that they were not available within a reasonable length of time, then the U.S. officer would be allowed to proceed, but subject to very strict rules about how such a search is to be conducted.
On the issue of the withdrawal from a pre-clearance area, currently travellers are able to withdraw at any point in the process, and that will remain the case. The distinction is that under Bill C-23, a withdrawing traveller may have to identify themselves and give their reason for withdrawal.
This is simply to prevent the illicit probing of pre-clearance sites by people who are trying to discover weaknesses in cross-border operations. This happens from time to time. The authority here is if a person is in the area and decides that they wish to leave, an American officer could ask them to identify themselves and to explain why they are requesting to leave.
Bill C-23 is clear that a withdrawing traveller may not be unreasonably delayed by this procedure where an American officer is asking them, “What is your name?” “Show us your identification,” and, “Why did you start the process and now decide you changed your mind and you wish to leave?”
I know there have been questions about whether reasonableness in this context is a clear enough standard. It’s important to keep in mind that the concept of reasonableness is very well established in Canadian jurisprudence and in Canadian law. The Charter of Rights, for example, protects against unreasonable search and seizure. The Customs Act requires that people newly arrived into Canada are to be searched within a reasonable time, and the Criminal Code requires that a person who is arrested be taken before a justice without unreasonable delay. Generally, courts have understood that “reasonableness” means is this behaviour the same as other people would behave in similar situations? That’s a pretty basic test, and it’s one that Canadian courts are very familiar with.
In practice, for these circumstances, it would mean people would be free to withdraw from a pre-clearance area after answering a few basic questions about who they are and why they decided to change their mind.
There was also a concern raised at second reading about clause 32(1), which says that a pre-clearance officer can detain a withdrawing traveller if there are reasonable grounds to suspect that they have violated an act of Parliament.
The fear, as I understand it from reading the record of the debate, is that an officer might detain someone on suspicion of a long-ago offence unrelated to the pre-clearance process. I want to make two points about that. First, the rules of statutory interpretation dictate that the law must be interpreted in a contextual and purposeful manner, meaning that in this case, the detention would have to be related to a present law enforcement concern, not something that happened a long time ago. Second, section 24(1) of the current Preclearance Act already empowers U.S. officers to detain a traveller if there are reasonable grounds to believe that they have violated an act of Parliament. In other words, there is nothing new in this particular provision compared to the law that has existed for the last many years.
Something else that was raised repeatedly at second reading was the examination of electronic devices. I know that’s a current concern for Canadians, so let me be absolutely clear. There is nothing in Bill C-23 that would give U.S. officers any new powers to search electronic devices or demand passwords. The fact of the matter is that under U.S. law, American border officers have that authority right now. They can already exercise that authority at regular points of entry or pre-clearance areas. Bill C-23 does not change that. It’s the status quo.
That brings me to my final point. Any concerns that a Canadian traveller might have about potential treatment at the hands of U.S. officers would apply with or without pre-clearance. The reality is this: If you’re going into the United States, you have to clear customs somewhere. You either do it in a pre-clearance area, which means you are doing it in Canada under the umbrella of the Canadian Constitution, or you cross in the more conventional fashion, where you meet the customs and immigration people after you have actually gone across the border and you’re in U.S. territory and, therefore, you have no residual protection under the Canadian Constitution or Canadian law.
The advantage of clearing customs and doing immigration procedures in a pre-clearance area in Canada, apart from the sheer convenience — get it done up front, and when you land in the U.S., then you’re treated as if you’re a domestic traveller — is the advantage when it comes to the general conduct of the U.S. officer who will be enforcing American customs and immigration procedures, but under the umbrella of the Constitution, the Charter of Rights, the Canadian Bill of Rights and the Canadian Human Rights Act. Those apply, and the legislation makes that very clear. Those apply when you’re doing it in a pre-clearance area because you are on Canadian soil.
If you do it the other way, where you have already crossed the border, you line up to make your application to enter the United States, and you’re entirely subject to their discretion. There will be no one saying that if a search is required, you must find a Canadian officer to do it first, and there will be no one saying that you can go home without unreasonable delay. Those apply in pre-clearance areas, where you have the benefit of this legislation, the Constitution and the Bill of Rights. So there you’re entirely subject to U.S. rules, in contrast with the pre-clearance where you’re still under the protection of the Charter.
U.S. pre-clearance officers will be trained in the Canadian legal standards that they will be expected to apply. That’s currently the case, and we will make sure that those American officers who will be functioning on the Canadian side of the border are well schooled in what the Charter means, what the Bill of Rights means, what the Canadian Human Rights Act means and so forth.
As is currently the case, Canadian travellers who believe their rights have been violated by a pre-clearance officer may bring a legal action against the U.S. government in a Canadian court. That is, of course, subject to the State Immunity Act, which applies to all proceedings of that kind, and Canada will have the authority to require the removal of a pre-clearance officer who abuses their position at the border.
In brief, Madam Chair, Bill C-23 will make cross-border travel and trade faster and easier, and it will do so while enabling more Canadians in more parts of the country and by more modes of transportation to undergo U.S. border procedures while they are still on Canadian soil and, therefore, protected by Canadian law and procedures.
I would be happy to try to answer any questions.
[Translation]
Senator Dagenais: Thank you for your presentation, sir. I would like to hear about the progress of Bill C-23. You certainly know that the bill was introduced by the previous government. Further, I believe it was introduced in the spring of 2015 and again in the House of Commons in June 2016. Correct me if I am wrong, but nine months have passed since first reading, without debate.
You yourself, Mr. Goodale — I listened to you carefully — highlighted the importance of this bill. Can you explain why the bill is progressing so slowly?
[English]
Mr. Goodale: In terms of the process, the Canada-U.S. agreement that is necessary to lay the foundation for this legislation was negotiated over a four- or five-year period leading up to the spring of 2015. I don’t know if you had an opportunity to read the agreement, but it is lengthy and dense, to say the least, so you can understand why it took a while to negotiate all of that fine detail between the two countries.
That was concluded and signed in the spring of 2015. The agreement was tabled, I believe, in both houses of Parliament in the spring, March of 2015. That’s where it sat. No legislation was actually drafted.
You may recall that 2015 was a rather complicated political year that involved one of the longest election campaigns in Canadian history. So the legislation itself was not introduced prior to the election.
When I arrived as minister in this portfolio, I found that my officials were very anxious to move forward, and I also found a number of representations from the United States saying this is an important cross-border initiative and they would like to proceed with it as well.
We got going on the final discussion between the two countries, and the legislation was drafted over that winter of 2015-16 by our government and then tabled in June of 2016.
The House of Commons agenda, as you know, just as the Senate agenda, is crowded with a number of legislative initiatives. This one moved forward through the house in the latter part of last year and this year. It is now moving forward in the Senate. I believe both houses have tried to deal with it as quickly as they could get to it. I’m glad that both houses think it’s important, because I think it’s important too. But I must say, I am hearing a little bit from my American counterparts about their passing their legislation last Christmas and New Year’s in that so-called lame duck session of Congress, between one administration and the next. They actually got it done in that period of time, which was quite remarkable, and they are anxious for Canada to get its legislation done as well.
So the previous government negotiated the agreement, but did not introduce the legislation before the election. We picked up the issue after the election and brought the legislation forward, first in June of last year, 2016, and now it’s hopefully nearing a successful conclusion through both houses.
[Translation]
Senator Dagenais: I understand the situation very well, Mr. Goodale. You are no doubt aware that when Mr. MacNaughton, the Canadian ambassador to the United States, appeared before the Standing Senate Committee on Foreign Affairs and International Trade — in June 2017, I believe —, he spoke about the great pains that the Canadian embassy had taken with the Obama administration to encourage the U.S. Congress to adopt this bill.
Allow me to quote his exact words:
I was talking to some of the members of Parliament in the House of Commons yesterday about hurrying it up because I’m a bit embarrassed. I leaned on the Americans so heavily and now they’re coming back and saying, “Where is yours?”
Can you explain why the embassy had to pressure the government to move forward on this bill? From what I understand, the ambassador had to put some pressure on the government.
[English]
Mr. Goodale: It’s a good bill, senator; it’s complex, and it involves some issues that deserve very careful reflection, which the house gave and now the Senate is giving.
Our legislative process takes time. I wish it could move more quickly. It’s unfortunately sometimes the case where time allocation and other rules need to be brought to bear to actually bring issues to a vote so that a decision can be taken. There is a lot of competition for space and time on the parliamentary agenda.
I’m glad to see, after the discussion that the bill got in the house — and it was extensive, both in the house and in the committee — that the bill was completed successfully and is now before senators and particularly this committee. I hope that it will enjoy equal success. I hope it can be dealt with expeditiously.
Senator Griffin: Thank you for being here. The intent of the bill is to establish land-based pre-clearance sites on each other’s soil, but thus far it’s only been the United States that’s established any pre-clearance facilities. Does the Government of Canada have a list of proposed sites that it might eventually establish as pre-clearance facilities in the United States?
Mr. Goodale: We have given that some consideration, Senator Griffin, and indeed I would be interested in any suggestions that you might have around this table as to where we should start this process.
The agreement and the legislation will give us the authority to have pre-clearance moving the other way. It will also cover all modes of transportation, not just air, which has been the case up to now. And it will give us the authority to cover cargo, and not just passengers, which has been the case up to now.
So the agreement and the legislation are broadly enabling in all of these spheres.
We have heard representations from some who would say pick a couple of large commercial centres in the United States. I have heard from my Atlantic Canadian colleagues, for example, that Boston would be a good location. I have heard Chicago from those in the Midwest I have heard LA from those on the West Coast. Denver is one location that gives you a platform right in the heartland of the west for the U.S. Others have suggested that some of our biggest traffic flows are actually for tourism and that you might think of a location in Florida, for example, or Scottsdale, as another example.
At this moment, all of this is speculation, but would senators give some thought to this so that when we start the platform for moving the traffic in the other direction it’s successful? Where, in your judgment, would be the best place to start?
What we have now is an agreement in principle and a number of locations in Canada where we can expand the movement going in the other direction. We also have an agreement at the highest level between Prime Minister Trudeau and President Trump that they would like to see cargo moving between the two countries at the earliest possible opportunity on a pre-clearance basis.
But on the question of passenger traffic moving from the U.S. north, I would welcome your advice as to where you think this might be begun in the most successful way.
Senator Griffin: Okay, those were great suggestions that you had. Any one of them on a test basis would probably be highly interesting and successful.
There are specific ports of entry such as Cornwall Island where members of the Mohawk First Nation are being charged by CBSA officers for failure to report due to the physical port of entry actually being located in the city Cornwall. These residents are physically entering into Canada. However, the CBSA doesn’t have a port of entry at the border. In that case, for example, would you support establishing a pre-clearance facility on the New York side to avoid this confusion or situation from reoccurring?
Mr. Goodale: Senator, I have met with people involved in this situation in and around Cornwall on a couple of occasions. You’ve got a long history associated with that area and a very particular geographical configuration that makes a real challenge for the smooth flow of people back and forth in safe and secure circumstances.
We are certainly looking at all of the options for remedying that problem so that we can have a smooth flow of legitimate trade and travel, both directions, and do so in a way that is the least inconvenient, especially for people who actually live there and make this journey back and forth maybe two or three times a day just in the process of going to work or going home. We haven’t arrived at the perfect solution yet, but this is an idea that we would examine. I wouldn’t want to leave the impression that there’s a quick or easy solution to this. It’s a long-standing issue, but we’ll examine every possibility to try to sort it out in a way that works, keeps everybody safe and secure but is also efficient and expeditious.
[Translation]
Senator Boisvenu: Welcome, Mr. Goodale. I have a few questions for you. First, we know that Canada and the United States have completely different charters of rights and freedoms. In Canada, privacy is sacred. The bill treats a cell phone like any other object. The concept of privacy regarding cell phones is not recognized in the bill.
When a cell phone is seized, will American agents automatically have complete freedom to verify the information on it? If a lawyer’s cell phone is seized, will solicitor-client privilege, which does not appear in the bill, be preserved?
[English]
Mr. Goodale: The provisions in Bill C-23 do not expand the legal authority of American officers. When they are dealing with electronic equipment, whether it’s at a regular border crossing or at a pre-clearance location, they would be operating under existing U.S. authorities without any change in that being brought about by Bill C-23.
In terms of the existing authority, Martin, can you explain what authority an American officer would have? Regarding the Canadian approach to this, CBSA has a very explicit protocol for how to deal with electronic goods. It is different from the American protocol. If someone were coming into Canada, the Canadian protocol would apply. For someone going into the United States, it’s the American set of rules that would apply. Can you explain what that American officer would be able to do or not do and what would be the recourse for the Canadian traveller?
Martin Bolduc, Vice President, Programs Branch, Canada Border Services Agency: Towards a U.S. officer?
Mr. Goodale: Yes.
Mr. Bolduc: I do not want to go into too much detail.
[Translation]
An American agent can ask a traveller for the password to unlock the electronic device. We ask our agents to put the electronic device in airplane mode so that no data can be transmitted in real time, whether documents stored on the cloud or a social media interaction. An agent can look at everything on the cell phone under this platform.
Yet I do not know, Mr. Goodale, whether U.S. customs agents follow the same procedure. In any case, an electronic device, cell phone or tablet is not typically the first thing an agent will check during a search. The agent will speak with the traveller, examine their luggage and consider the evidence in proceeding with the search. Given the sensitive nature of the information that may be stored on an electronic device, such actions are taken, not merely as a last recourse, but when the agent has gone far enough in the search to have reasonable grounds to believe that there might be an offence.
Senator Boisvenu: Is the protection of confidential information, which is crucial to a lawyer, the same for American and Canadian citizens?
Mr. Bolduc: No, solicitor-client privilege is essential except when our agents suspect that the information to which they have access constitutes an offence.
Senator Boisvenu: So that is a protocol that is separate from Bill C-23.
Mr. Bolduc: That is right. It is part of our regular policies.
[English]
Mr. Goodale: If I could add one sentence, if the behaviour of the U.S. officer constituted unreasonable search and seizure, then of course there would be legal recourse.
[Translation]
Senator Boisvenu: We know that the bill provides for U.S. agents to receive training about the law in Canada. I would like to talk to you specifically about Quebec City and Montreal. Quebec travellers have often told us that the U.S. agents know absolutely no French. If Quebec travellers are subject to preventive arrest, can we expect the U.S. agents working in Quebec to have a rudimentary knowledge of French in order to interact with Quebec tourists who in many cases do not speak English?
[English]
Mr. Goodale: Senator, that just makes good practical sense. Bear in mind, this is an American facility. If they were crossing without the benefit of pre-clearance, they would not have any guaranteed access to language rights. The language issue is a very important part of our country. My own instinct is that the Americans, if they want to do successful business in a place like Jean-Lesage airport, for example, or Trudeau airport in Montreal, would be well advised to have people with the right language skills to be able to communicate with the people who will be passing through there.
[Translation]
Senator Boisvenu: Training about the law is planned for these agents, but they are not required to take French classes to be able to communicate with Canadian citizens?
Mr. Bolduc: No, there is no French language training. I can assure you, senator, that I have worked in Quebec for a long time.
U.S. customs officials try to select agents who speak French, although it is not mandatory. You will find that many agents working on the southern border speak Spanish. During the recruitment process, they try to give priority to agents who speak French. That does not mean that bilingual agents will be available 16 hours per day, but I know they are trying to recruit some.
[English]
Senator McIntyre: Thank you, minister, for being here today and answering our questions.
Minister, you have outlined the anticipated benefits of pre-clearance in facilitating travel across the Canada-U.S. border. Obviously they are potentially considerable.
My question is this: Can you outline what the next steps will be after Bill C-23 is passed, and where will we see the first benefits from this agreement?
Mr. Goodale: The next technical step, as soon as we get Royal Assent, would be the preparation of the regulations. A number of the provisions in the act would enable the actual practical implementation. Once we get the law passed and the regulations drafted and promulgated, the next step is physically setting up operations in new locations.
The agreement in principle between Canada and the U.S., which I negotiated with Jeh Johnson, who was the Secretary of Homeland Security at the time, the end of 2015, the beginning of 2016, was that we would start at Jean-Lesage airport in Quebec City, Billy Bishop airport in Toronto, the train from Montreal to New York and the train and cruise ship interface at a number of locations in British Columbia. There is some informal pre-clearance at some of those locations now, but this would enlarge it and set it up on a more fulsome basis.
All of those venues, knowing that this agreement in principle has been in the public domain now for quite some time, have been doing their homework and making plans and preparations. The sites would need to arrive at their own operational agreements with the border services in the United States, so those communications have been ongoing. I think in most cases at the locations I’ve mentioned, they are anxious to get going as soon as they can. Some may have to make some physical alterations to their premises to be able to accommodate pre-clearance appropriately in a safe and secure manner.
When we were putting this to bed at the end of the Obama administration and the beginning of ours, I wanted to go beyond simply having the formal legal agreement; I wanted a business understanding. Once we get the legal issues resolved and the legislation passed on both sides of the border and the regulations done, then where do we start to actually expand the service? Those are the locations: Billy Bishop, Jean-Lesage, the train from Montreal to New York and the rail and marine locations in British Columbia.
Senator McIntyre: Minister, apart from what you have said, will your government have an action plan or a strategy in place for taking full advantage of this agreement?
Mr. Goodale: Yes, indeed. The next stage —
Senator McIntyre: Can you share this plan with us?
Mr. Goodale: I’ve talked about it a lot, but the essence of it is what I’ve described here with one addition, and that is getting the cargo up and running.
There have been some pilots and tests done on cargo movement in the past. The results have told us two things. Number one, this would be a really good thing if we could get it implemented, but it is complicated in the case of cargo, and it may require some further legal adjustments on the American side.
That is the plan, and we are going to push it every opportunity we get in order to make this service available at more locations in all modes of transportation and, in response to the earlier question, moving in both directions.
Senator McIntyre: If I may, Madam Chair, I have another question for the minister.
The Chair: Quickly.
Senator McIntyre: It has to do with Canadian workers. Minister, I’m sure you’re aware that concerns have been raised by some groups representing Canadian workers about the U.S.’s ability to provide derogatory information on each employee requiring unescorted access to pre-clearance areas. Obviously this has raised significant concerns about a de facto U.S. veto over Canadians working in a pre-clearance facility on Canadian soil.
For example, groups representing Canadian marine transportation workers have suggested that this could be fixed through an amendment to the legislation, exempting employees who hold a marine transportation security clearance.
Would you support such an amendment?
Mr. Goodale: I would have to examine the detail of the proposal, senator. I’ve taken the view that if constructive amendments can be brought forward, I’m happy to take a very careful look at them.
One issue, though, one constraint that we have is that the amendment would need to be consistent with the binational agreement between Canada and the United States. We’re not in a position to unilaterally change that agreement that was signed in the spring of 2015. That would take a renegotiation, if that’s involved in this. I don’t know whether that’s the case or not.
Two points I would mention. What is done with the information would be entirely up to Canada to determine, and the normal labour law and grievance procedures would apply.
Jill Wherrett, my assistant deputy minister, has been very close to these issues, and she probably has some better detail to provide.
Jill Wherrett, Assistant Deputy Minister, Portfolio Affairs and Communications Branch, Public Safety Canada: Just to add a little bit of detail, as you’ve correctly noted, the agreement does provide that the inspecting countries — the U.S. if they’re in Canada or Canada if we were operating in the U.S. — can provide information to the host country for the regular vetting processes that go on in terms of employees who require access to the pre-clearance area.
That’s really intended to strength the security of the transportation system, helping to minimize the risk of incidents related to national security, for example. But as the minister said, the agreement is very clear that that final decision rests with the host country, so that decision about who can work in facilities in Canada will always be made by Canadian authorities or the operators of the facility. Those decisions will be subject, as the minister said, to regular employment and labour laws.
A number of issues have been raised by various groups, including the longshoremen’s union in B.C. We’ve spoken about that before, Senator Griffin.
We are actively involved in discussions with the U.S. about how this process will work with information coming from the U.S. For the air sites, we have an existing process in place in terms of the Transportation Security Clearance Program, and we would continue to use that. For marine sites, we’re continuing to discuss that. There is a possibility, where the marine security process is in place, of using that, where it applies. We would address that through regulations; that would be the more appropriate way, rather than an amendment to the legislation, to make that clear.
Senator McIntyre: The point I was trying to raise is that the bill contains no definition of derogatory information. I’m just wondering if you would accept an amendment to that effect.
Mr. Goodale: Senator, obviously I would need to see what the possible amendment would say and compare it to the agreement to ensure consistency. I’m happy to look at constructive proposals to see if there’s a way that concerns can be accommodated. I’m afraid in advance I’m not able to give a blanket yes or no, but I’d be happy to look at any proposal coming forward.
Senator McIntyre: Thank you.
Senator Brazeau: Good afternoon, minister.
You mentioned that U.S. officers will be receiving training. Other than getting familiarized with the Constitution, the Charter, other rules, is there any other specific training that U.S. officers will have to undergo?
Mr. Goodale: Any power or authority that they would be exercising under Canadian law is something we would want to make sure they fully understand in terms of all of the Canadian implications.
The legal umbrella that they will be operating under is the primary source of the training. They are, we would expect, in most cases — we will check this, obviously — experienced border officers to start with, so in terms of the work they do from a border control point of view, we would expect that they would be competent professionals. What we want to add to their training is the Canadian detail, the Canadian legal frame, the Canadian nuance, to make sure that all of the rules and rights protected by the Charter are properly protected.
Martin, are there other details of the training that you could comment on?
Mr. Bolduc: The only other one that would be worth mentioning is the use and storage of defensive tools. Officers will have a baton and pepper spray, so the procedure in the use and storage of those regulated items in Canada.
Mr. Goodale: I might add on that point, senator, one thing that’s very important in this agreement and in the legislation is that all of the rules and rights are completely reciprocal. In other words, no power, right or authority is conferred upon an American that is not also, and equally, conferred upon a Canadian. It’s an exact mirror image both ways.
In relation to weapons, for example, American officers will carry weapons only where their Canadian counterparts do as well. To give you a practical example of that, inside an airport in passenger clearing operations, Canadian border officers do not carry sidearms, so the American officers will not carry sidearms in those circumstances. It’s an exact mirror image.
Senator Black: Minister, thank you for being here and thank you for your and your officials’ commitment to this very important piece of legislation.
For the record, as the sponsor of the bill, there are a couple of matters that I would like to hear your view on for the purpose of the debate which undoubtedly will be forthcoming at third reading.
Minister, with respect, you’ve heard concerns about search, electronic devices and withdrawals. Those appear to be where various senators have issues regarding the potential violation of privacy or an individual’s civil rights.
Minister, are you satisfied that the civil liberty regime put in place by this legislation gives an actual remedy to anyone who feels they’ve been violated? And if you wish to refer that to counsel, I would completely understand that.
Mr. Goodale: I would certainly invite Scott or Jill to comment, but the agreement was negotiated in great detail to try to anticipate, as much as possible, all of the different circumstances that could arise and to make sure that what we were putting in place is an effective regime from a security point of view, an efficient regime from the convenience of the traveller point of view, and one that fully respects the Charter, the Bill of Rights and the Canadian Human Rights Act.
The clauses in the bill that I think are particularly important in this regard are clause 10(2) and clause 11, which make it clear that U.S. pre-clearance officers operating in Canada are operating within the framework of Canadian human rights law. That, I think, is about as strong a protection as you could possibly have.
The negotiators paid careful attention to this; and the drafters, when we put it in legislation, made that explicit in clause 10(2) and clause 11.
Senator Black: And that’s very clear and very strong. If, however, there should be a violation of those rights, are we satisfied that there is a meaningful remedy available to someone who feels violated? Or do the immunity provisions of the legislation — and other legislation that you’ve referred to earlier, minister — provide a block?
Mr. Goodale: I believe the remedies are real. They’ve been designed to be real and to be meaningful.
The other comfort that I take on this is the experience of the last 65 years — since 1952, I think it is — where the number of incidents where an issue would have arisen is minuscule and where the recourse mechanisms have been appropriate. Now obviously with new legislation, we’re anticipating an increase in volume and in traffic — and therefore, I guess, in the opportunities for things to go wrong. However, I do believe that the legal framework is solid, that the recourse mechanisms are real and that the experience of the last 65 years would suggest that what we’re building on here is an already very successful arrangement.
Senator Black: Minister, I presume — but I want to confirm for the benefit of the record — that you have received advice and you are of the view yourself that this legislation neither breaches any provisions of the Charter nor breaches provisions of Canadian privacy legislation.
Mr. Goodale: Absolutely.
Senator Black: Thank you, minister.
Senator Richards: Thank you for being here, minister. I have a question that’s a little off this but deals with the same thing, really. I’m wondering, do American and Canadian officials access the same no-fly list? My son found himself on a no-fly list when he was 13. He was travelling from Fredericton to Toronto, for the first time on his own, to visit a friend. He was held up in Fredericton. They knew who I was. On the way back he was held up in Toronto, not for an inordinate amount of time but enough to cause us worry.
I know it would be far better to be held up by pre-clearance in Toronto than somewhere in Boston or New York. Still, I’m wondering if anything has been done to remedy this, for 13- or 14-year-old kids to be held up on a no-fly list.
Mr. Goodale: Two or three things, senator. Thank you for raising it. It’s not directly involved in Bill C-23, but it is a very large public issue. I’m frustrated by it, as are a good many other people.
With respect to the no-fly list, the Canadian and American lists are totally separate entities. They have theirs; we have ours. We make our own decisions about how names are put on or taken off the list, and they have their own procedure for their list — names on, names off. We have established a working group between the two countries to facilitate solutions where there are problems with names. We put that together last year, so it’s a new effort. It hasn’t existed for a long time, but at least we have a collaborative mechanism where, if we’ve got a Canadian with a complaint about the U.S. list, we’ve got a mechanism for raising that issue with the Americans and seeing if we can find a solution. Similarly, if they’ve got an American with a problem on the Canadian list, it can work the other way around.
That cooperative mechanism is up and functioning. However, the major concern about the Canadian no-fly list is that although there are no children’s names on the list — in fact, the law says the only names that are put on the list are people over the age of 18 — you can have confusion among names where a child has a name similar to the name of an adult that is on the list, and there have been some highly publicized cases where exactly that problem has occurred.
And the problem originates with the design of the administrative structure for handling the no-fly list in Canada. When it was designed eight or nine years ago, the people of the day thought the best way to do this would be to have the airlines that have the passenger manifests do the clearing of the names. So in effect, the government’s no-fly list is administered on the back of the airlines’ computer systems, and we have no control over the airlines’ computer systems. The number of fields they offer, the number of identifiers they use, that’s their commercial business, and they are running the no-fly system on their computers.
In the United States it operates the other way around. The no-fly list is a government computer system, and the airlines give the government the airline manifests and it’s the government that does the checking rather than the airlines that do the checking. I think, quite frankly, from a security and efficiency point of view, the American system is a better approach. Ours is a bit odd. It also raises security concerns for me, as well as the inconvenience and the stigmatization of children and so forth.
We want to migrate from that old system that was created seven or eight years ago to a new one, where we have a government-controlled computer system, safe and secure, and we would do the checking and it would be interactive. So once you had a false positive, you would get a clearance number, and every time you then buy a ticket or check in at the kiosk or at home on your home computer, you would enter your clearance number and your name would automatically be verified and never again would you have that awkward moment at the ticket counter.
To do that requires three things: We have to change the legislation to give the government the authority to run the system rather than the airlines running the system. That will necessitate some regulatory changes as well, and we have to build that computer system from the bottom up because at the moment it doesn’t exist. The old system doesn’t accommodate what we need to do on the new system.
Step number one is in Bill C-59. This bill hasn’t come to the Senate yet; it’s just under debate in the house now. But Bill C-59 will give the government the legal authority to build this system from the ground up to solve this problem. We’ll then have to develop regulations and build the computer system. But step number one is fixing the law, and that fix is contained in Bill C-59.
[Translation]
Senator Boisvenu: Regarding the establishment of Canadian control points on U.S. soil, you talked a lot about cargo. What about tourists and persons who are in the United States and are travelling to Canada? Do you have any specific plans for developing service points at certain airports? What are your priorities?
[English]
Mr. Goodale: We would like both the passenger flow and the cargo flow coming from the United States to Canada. As I was saying to Senator Griffin earlier, we are certainly open to suggestions about where we could, in a smart way, get this started. As I suggested in an earlier answer, maybe you pick a tourist location like Scottsdale in Arizona or Fort Lauderdale in Florida, or maybe it should be a business transit point like Denver or Chicago. Because he came from Boston, former Secretary Kelly and I had an interesting discussion about Boston as one of the locations as well.
We’re looking for suggestions, and I would welcome the Senate’s considered advice about where, if we could get one of these started for passengers and for cargo, would be a good location. Your advice would be welcome.
The Chair: Minister, thank you very much for taking the time and joining us in answering the questions. I know some of the senior officials will stay to take further questions. Thank you again.
Mr. Goodale: Thank you very much, Madam Chair. I look forward to coming back.
The Chair: We are joined at the table by Michael Zigayer. We welcome you, and we thank the senior officials for being here and answering questions.
Do you have any opening comments you would like to make, or can we go right to questions?
Ms. Wherrett: Right to questions.
The Chair: Thank you. We’ll start with our deputy chair, Senator Dagenais.
[Translation]
Senator Dagenais: I would like to go back to the concerns raised about customs agents and U.S. border protection. Our concern is the sharing of information with U.S. authorities regarding Canadians who might pose security problems.
Can you tell us about the process that has been implemented to regulate these exchanges of information between the two countries? At the same time, I would like to know how the agreement will protect the rights of persons who enter the preclearance area and are interrogated by U.S. agents on the basis of Canadian information.
It is a bit complicated, but worrisome nonetheless.
[English]
Ms. Wherrett: Thank you for the question. In terms of the information and privacy under the preclearance act, 2016, I think it’s important to note that this legislation and U.S. pre-clearance operations in Canada do not allow U.S. officers to collect any information that would not otherwise be collected from any other person seeking to enter the U.S. at a regular port of entry. So there is no difference in the pre-clearance context to a regular port of entry. As is the case at a regular port of entry and existing U.S. pre-clearance locations in Canada, U.S. officers have the authority to question travellers and to collect information to make admissibility decisions as well as to maintain security and control over the border. As I said, there is no difference between a pre-clearance site and a regular port of entry.
There are some limitations in Bill C-23. There are limitations regarding what kinds of biometric information can be collected and limitations related to the collection and use of information in the case of withdrawal.
In accordance with the agreement, the U.S. must ensure that all information collected during pre-clearance operations is treated in accordance with the applicable U.S. privacy law and policies, including those that provide for the protection of personal data against inappropriate access, use or disclosure.
Information collected by the U.S. and Canada — again, this applies to a pre-clearance location or regular port of entry — is subject to the review and oversight of the appropriate agencies and entities in the U.S., including those that deal with privacy and civil liberties. Again, those existing protections remain in place with no difference between a pre-clearance site and a regular port of entry.
[Translation]
Senator Dagenais: Mr. Bolduc, I reviewed the bill and it says that, in the case of a strip search on U.S. soil, a CBSA supervisor must be present.
It also says that, if no supervisor is available, the U.S. border services agency could authorize a search.
In the event that a supervisor is for some reason unavailable, would you be concerned about the U.S. border services agency doing a strip search?
I am not suggesting in any way that the U.S. border services agency is more expeditious. Have you had discussions with the U.S. border services at Jean-Lesage airport to make sure there would be enough supervisors available to conduct those searches?
Mr. Bolduc: The traveller can invoke their right to be taken before a senior agent who is a supervisor. Otherwise, there is absolutely no need to have a supervisor present to conduct a search. That is an important difference.
The minister has mentioned that this is already in place. U.S. customs officials can call upon our services to conduct a strip search, although that happens very rarely. Such requests are not common.
To avoid being in a situation where we could not provide assistance, the agency will have an internal policy that prioritizes those requests.
In most cases, we are at the same location. Here, at the Ottawa airport, our U.S. colleagues are on the second floor, while we are on the first. So we already have the ability to respond to such requests quite quickly.
In the rare instances where our operations are not at the same location, an agent would be asked to go to the other location. Given the history of such requests, the agency is confident that it would be able to respond and provide assistance if needed.
[English]
Senator McIntyre: Welcome, second panel. Some of the witnesses who appeared before the house committee studying Bill C-23 noted, under section 40 of the agreement, that U.S. pre-clearance officers refusing to admit people or goods to the United States are not subject to judicial review in Canada. These witnesses argue that Bill C-23 should afford travellers the right of review in accordance with U.S. law and the right to have goods returned or permitted to enter the U.S. where there is no basis for their seizure. What are your thoughts regarding the possible amendment to Bill C-23?
Scott Nesbitt, Legal Counsel, Department of Justice: Perhaps the starting point is looking at clause 10(1) of the bill and ensuring it’s clearly understood. When a U.S. officer is making a decision on whether to admit a traveller or goods into the U.S., they are making a decision applying U.S. law. Therefore, it’s a decision that is made under U.S. law. Canadian courts are not particularly well placed to make that decision, hence the provision in clause 40.
It’s not for a Canadian court to review a decision made by a U.S. officer under U.S. law. The operating assumption is that whatever remedies are available under U.S. law would be available to that traveller, whether that relates to admissibility as a traveller under U.S. immigration law or the seizure of goods under U.S. customs law.
As I understand it, the suggestion that was presented before the house in one of the stakeholder reports or submissions to the house committee was that perhaps the Canadian preclearance act, the Canadian legislation, should be amended to recognize the right to seek remedy under U.S. law. We did in fact look at it. Our thinking is that it is a meaningless provision because whatever Canadian law says about what U.S. law must provide has no effect. It is for the U.S. as a sovereign country to decide what remedies they will make available. In fact, the LRMA, the Agreement on Land, Rail, Marine, and Air Transport Preclearance, recognizes that. Indeed, when it comes to the seizure of goods, the remedies are those that are available under inspecting party law. When it’s the U.S. conducting pre-clearance here, it’s the U.S. law that would apply.
To summarize, it’s an issue for U.S. law. Whether the bill says that a remedy is available under U.S. law or not has no legal effect because Canadian law can’t prescribe what remedies the U.S. must make available.
Senator McIntyre: I want to continue on the same trend. Some witnesses argue that Bill C-23 should be amended to permit the NEXUS Redress Committee and Recourse Directorate the right to review the seizures of NEXUS cards in a pre-clearance area. Could I have your thoughts on that as well, please?
Mr. Nesbitt: Essentially, NEXUS is separate and apart and distinct from pre-clearance, as far as we’re concerned. It’s a separate program. It may be used by travellers in a pre-clearance area, but it’s not limited to pre-clearance by any means. For that reason, the administration of the NEXUS program is kept separate from pre-clearance. We don’t make that linkage in the pre-clearance bill itself. It would be odd to make a remedy provision in the pre-clearance bill. That’s the first point.
Second, with respect to the NEXUS program itself, we are, of course, aware of that suggestion, but I think it ignores the way the NEXUS program is actually structured. It’s actually two distinct programs: Canada collects the information and makes its own decision on whether to admit the person, and the U.S. collects its information and makes its own decision on the application to join the NEXUS program. They have to be approved by both to join the program. If either one of those parties for its own reasons decides to revoke or cancel membership in the program, then they are out of the program. So the remedy lies, as with the first issue we talked about, with the country that makes the decision to revoke or cancel. To the extent it’s a U.S. officer in a pre-clearance area, then the remedy is the remedy that’s available under U.S. law.
Senator McIntyre: Thank you.
[Translation]
Senator Boisvenu: I do not know who could answer my question. The bill provides that the U.S. can refuse entry to anyone on reasonable grounds, including if the person poses a danger to public health. Why do Canadian agents not have that same power?
[English]
Ms. Wherrett: Canadian agents would have the same power as American agents. Where we operate in Canadian pre-clearance in the U.S., we would have the same authorities.
[Translation]
Senator Boisvenu: So there are pre-screening areas — in Florida for instance — where an American could be refused entry.
My concern is the same as the one I raised with the minister earlier as regards unilingual francophones who are detained by U.S. customs agents who do not speak French. There have been a few complaints from Quebecers who were detained and were unable to communicate with the agents because they did not speak French.
Has the Commissioner of Official Languages been consulted on this bill?
[English]
Ms. Wherrett: The Commissioner of Official Languages has not been officially consulted on the bill nor has commented specifically on the bill.
I would elaborate a bit on the minister’s answer. Mr. Bolduc may add more based on the experience, again, of working with U.S. Customs and Border Protection.
I would note regarding the signage that there are a number of requirements for signage in the pre-clearance area noted both in the agreement and in the bill. The signage will be in both official languages. As I think the minister mentioned, the U.S. prioritizes bringing their most experienced agents into pre-clearance areas. They give priority, when selecting officers to Canada, to officers who can converse in French. We have that circumstance as well. That’s also recognized.
In terms of when they do need to question someone regarding the ability to converse with the individual traveller, they will look at that as well in terms of the time that is required to undertake the examination. I’ll turn to Mr. Bolduc in case he has anything to add.
[Translation]
Mr. Bolduc: It is the same thing, senator. If a U.S. agent begins arrest procedures, the agent must make sure that the person understands what is happening.
Senator Boisvenu: I understand that the pre-clearance area is considered to be on U.S. soil.
Mr. Bolduc: Yes.
Senator Boisvenu: Does a Canadian or a Quebecer in that area have the right to be served in both official languages, or do they lose that right?
Mr. Bolduc: I cannot answer your question. I do not know what rules apply in the U.S. pre-clearance area. Perhaps my colleague has some more information.
[English]
Mr. Nesbitt: Under the Official Languages Act, the question is whether the services are being provided by a federal institution or on behalf of a federal institution. Our position is that when U.S. pre-clearance officers are administering U.S. immigration law in Canada, that’s not the case. So the position is that the Official Languages Act does not apply in those circumstances to U.S. pre-clearance officers.
[Translation]
Senator Boisvenu: You understand that a lot of travellers are completely unaware that they are on foreign soil when they are at an airport in Montreal or Toronto, even in a pre-clearance area.
I do not know who would be responsible for that, but people need to be informed in writing that once they enter a U.S. area at the Dorval airport, they no longer have the right to be served in both languages.
A big concern for travellers is that they are detained and in some cases searched, and are completely unable to communicate in French if the agent serving them is unilingual. Tourists react negatively, for all kinds of reasons. When people are not served in their first language and do not understand what the agent is saying to them, they panic. People entering those areas need to know that they are no longer in Canada, but in U.S. territory, and that U.S. rights apply.
[English]
Ms. Wherrett: As I mentioned, both the agreement and the legislation make it clear that signage is required. And you would have noticed now when going to pre-clearance areas that there is signage. There will be signage clearly indicating that you’re entering a pre-clearance area, also signage related to the ability to withdraw and that biometric information will be collected. That signage will be in both official languages.
Senator Black: I have a couple of quick questions, if I may, arising from the excellent questions that my colleagues posed here today.
Ms. Wherrett, I want to swing back to a conversation I had with the minister respecting the issue of civil liability and immunity. A suggestion has been made, to put it in its simplest form, that in effect, if an individual’s rights are violated, for whatever reason, that individual effectively does not have a remedy. Would you comment on that, please?
Ms. Wherrett: I think I will turn to Mr. Nesbitt for the legal details of that. U.S. Customs and Border Protection has a number of recourse procedures.
Senator Black: We would like to know about that. This is important.
Ms. Wherrett: Okay. We can talk about that.
For members of the public who feel that they have in some way been mistreated by a pre-clearance officer, for example, inappropriate search or discrimination during admissibility decision, there are a number of complaint mechanisms that they can go through. Customs and Border Protection has an information centre that responds to, tracks and addresses complaints related to U.S. Customs and Border Protection’s interaction with the public. Allegations of misconduct or discrimination are referred to their office of internal affairs for review. If warranted, U.S. Customs and Border Protection would take appropriate disciplinary or other action against an employee.
For searches at a U.S. pre-clearance area, a traveller has the right to be taken before a senior officer, as the minister spoke about, and also the right to seek counsel.
The U.S. has a number of other offices in place to investigate complaints, again, broader investigations of civil liberties and civil rights complaints. They have a citizenship and immigration services ombudsman to investigate immigration complaints. So there are a variety of mechanisms in place in the U.S.
Also, if an individual feels that they have been subject to criminal misconduct by a CBP officer operating in Canada, they of course can approach Canadian police.
But in terms of the legal details, I’ll turn to Mr. Nesbitt.
Mr. Nesbitt: In terms of a civil action for damages, which is what I think you’re interested in, clause 39(1) of the bill does give civil immunity to individual pre-clearance officers. The individual officer cannot be sued in their individual capacity.
As I think the minister stated, the United States, as the employer of those individual officers, could be sued for damages, subject to the State Immunity Act. So the State Immunity Act is Canada’s federal legislation that deals not just with pre-clearance immunity but across the board the situations in which foreign states and their officers will be subject to civil suits in Canadian courts.
Generally speaking, there are exceptions to the rule that foreign states can’t be sued, and those are recognized in the State Immunity Act. Those allow suits against a foreign state for commercial activity, for example, but more pertinent to the pre-clearance context, where there is damage to property, the foreign state is subject to suit and the immunity does not apply. Or where there has been death or bodily harm or injury, that is another exception, so the United States would not have immunity in those circumstances where that was the basis for the civil action.
Senator Black: That’s very helpful. Thank you very much.
Senator McIntyre raised an interesting point respecting what I believe is styled as derogatory information, in the context, I understand, of longshoremen and the functions that they perform in their place of employment.
Do you have any additional comments to what the minister had to say as to how that matter is being addressed? You alluded to having solved that issue in the air mode, and you’re investigating whether that would be applicable to other modes. Can you talk to us further about that and offer what comfort you can that we’re alert to this issue and are addressing it?
Ms. Wherrett: Certainly. I’d be happy to give you a bit more detail. I’ll try not to go over the ground that I went over before.
The terminology used in the agreement is for consultation with the inspecting party, but in real terms, we use the term “derogatory information,” which is maybe criminal information or information obtained through national security checks. As I said, we are working closely with the U.S. to put in place a framework for that.
On the airport side, we’ve agreed that the Transportation Security Clearance Program, which is a program that has existed for some time and is operated by Transport Canada, would be amended to include the consideration of U.S. derogatory information. So along with all the other information gathered by the Minister of Transport in making a decision about whether someone can have access to a restricted area in an airport, they would consider information that comes from the U.S. before the airport authority would grant access to the pre-clearance area. Holders of that kind of clearance reapply every five years. In the course of that normal re-certification, that information could be passed along.
If a person is denied clearance or has their clearance suspended, they’re advised in writing of the reason for the refusal, cancellation or suspension. So they would receive that information. Only in rare circumstances would they not if it relates to national security in limited circumstances.
As mentioned previously, an employer’s decision not to hire or to terminate an employee for whatever reason would be subject to federal and provincial employment and labour laws, the contract terms, common and civil law jurisprudence and internal human resource policies. In the case of the air mode, the applicant may appeal the decision to refuse or cancel a transportation security clearance to the Federal Court of Canada. So there’s a well-established procedure in place.
When it comes to actually doing an agreement with the U.S., we will have a privacy impact assessment as well.
We have just begun our discussions with the U.S. on vetting for the rail and marine modes. We are looking at that. As I mentioned, there is a Marine Transportation Security Clearance Program as well that applies at least in one of the marine modes. We’re looking at whether we would use that. We’re looking at what procedures we can put in place, recognizing that the same broad provisions of the agreement would apply and similar principles will be developed.
I can’t elaborate at this point because we’re still working on that.
Senator Black: Thank you very much.
Senator McIntyre: I’d just like to add a comment here, a follow-up to the question raised by Senator Black. Thank you, Senator Black, for returning to this issue.
I think it’s important to have a framework in place. I know that you’ve been working on that. The lack of a framework for assessing derogatory information could lead to employees being arbitrarily denied security information, which, in turn, could jeopardize their employability. I think it’s important to follow up on that and to have a framework in place, either by amending the bill or through regulations.
Senator Black: Or perhaps an observation.
Senator McIntyre: I think it would have to be stronger than an observation, if possible.
Senator Black: I think in the political context of today I’m asking the obvious, but maybe not: What do you think the likelihood would be in renegotiating this agreement with the U.S. administration?
Ms. Wherrett: I think that’s a difficult question to answer from a public servant’s perspective. I think that really is a question for the U.S. administration, but I would say, as the minister said, the agreement is the product of a lengthy negotiation. It went on for many years, and there was give and take on both sides. It’s quite a lengthy and complex agreement. I think I’ll leave it at that.
Senator Black: We’ll leave it at that.
The Chair: Any other questions, senators?
Let me take the opportunity to thank the officials for being here and answering questions. It’s greatly appreciated and very hopeful for our consideration of the bill.
Senators, if you would remain for a brief in camera session, I would appreciate that.
(The committee continued in camera.)