Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 32 - Evidence - Meeting of November 5, 2018
OTTAWA, Monday, November 5, 2018
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-21, An Act to amend the Customs Act, met this day at 1:01 p.m. to give consideration to the bill; and to examine and report on Canada’s national security and defence policies, practices, circumstances and capabilities; and in camera, for the consideration of a draft report.
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the Standing Senate Committee on National Security and Defence.
I would ask my colleagues to introduce themselves.
[Translation]
Senator Dagenais: Jean-Guy Dagenais from Quebec. Good afternoon, Mr. Minister.
[English]
Senator Griffin: Diane Griffin, Prince Edward Island.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec. Good afternoon, Mr. Minister.
[English]
Senator Oh: Victor Oh, Ontario.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator McIntyre: Paul McIntyre, New Brunswick.
The Chair: I am the chair of the committee, Gwen Boniface, Manitoba.
This afternoon we begin our study of Bill C-21, An Act to Amend the Customs Act, with the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, who is accompanied by officials from the Canada Border Services Agency, Martin Bolduc, Vice President, Programs Branch, and Andrew Lawrence, Acting Director, Traveller Programs.
Thank you, Minister, for coming today. I will turn it over to you.
Hon. Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Senators. It is nice to be back with this group once again. I certainly look forward to continuing work with the committee on this matter and a variety of matters related to Canada’s safety and security.
Bill C-21 is a critical piece of legislation that will enable Canada to keep track of not only who enters our country but also who leaves it. Many Canadians, I would think, would automatically assume that we already collect that exit or leaving information, but the fact of the matter is that we don’t.
This bill will close that gap in our security and administrative framework and help ensure the efficient and safe movement of legitimate trade and travel.
[Translation]
Several countries are already collecting this data, commonly known as exit data, including our allies in the Five Eyes.
[English]
With Bill C-21, Canada will catch up to those other countries and close a significant security loophole. With Bill C-21, Canada will also be better able to deal with high-risk travellers and cross-border crime. This includes cases of child abductions and human trafficking. It will also strengthen our ability to prevent radicalized Canadians from travelling to join terrorist groups overseas.
The passage of Bill C-21 will help immigration officials to make better informed decisions and better use of their resources. With access to reliable exit data, they will be able to base their actions on a more complete and accurate picture of an applicant’s travel history. As well, when they’re conducting immigration investigations, they will be able to focus priorities and resources on individuals who are actually in Canada and not waste time on those who are not there or who have already left.
Bill C-21 will also help protect taxpayers by reducing fraud and abuse in certain federal programs based upon residency requirements. By establishing when people leave Canada, we will be better able to determine who is and who is not eligible for certain programs and benefits. Canadians expect the federal government to administer these programs responsibly, and to that end people collecting benefits in accordance with the law will not be affected.
The basics of the bill are really quite straightforward. The information that we are talking about is the very basic information found on page 2 of your passport, along with the time and the place of departure, and that’s all. It is very unobtrusive. It is the same simple identification information that all travellers willingly hand over to foreign officials whenever they cross a border and show their passports, showing the name, date and place of birth, nationality, gender, and the issuing authority for that travel document.
The way this information will be collected is also very simple and straightforward, without imposing any new requirements on the travelling public. For people who will be leaving Canada by air, the air carrier will collect that information from passenger manifests. They will give that information to the Canada Border Services Agency before departure. For people crossing by land into the United States, American officials will collect this information, as they already do, in the form of what is entry data for them. They will send it to the CBSA, where it will serve as exit data.
This will work the same way in reverse for travellers crossing into Canada from the United States. The experience for travellers will be entirely unchanged.
Bill C-21 also addresses a concern raised in the fall 2015 report of the Auditor General report about the need for stronger measures to combat the unlawful export of controlled and dangerous goods.
Bill C-21 will amend the Customs Act to prohibit the smuggling of controlled goods out of Canada. Currently, believe it or not, only smuggling into Canada is prohibited. We are, again, filling a loophole in the law.
Bill C-21 will give border officers authorities regarding outbound goods that are very similar to those that officials already have with respect to inbound goods.
It is also important to discuss the safeguards that are in place for Bill C-21. To begin with, the Office of the Privacy Commissioner of Canada has been extensively consulted on this Entry/Exit Initiative. The office will continue to be consulted as this measure rolls forward.
Information sharing with other federal departments is governed explicitly by the Customs Act and includes strict limits on the use and onward disclosure of that information. Information sharing with the United States is done in strict accordance with an entry/exit MOU and an explicit statement of privacy principles.
These include information management standards, privacy protection clauses and mechanisms to address potential problems. You can also find the privacy impact assessment of the current and previous phases of implementation of this initiative, which are already on the CBSA website. A new assessment will be done once the legislative framework is actually enacted and in place.
We should keep in mind that Canadian and U.S. authorities work together and exchange information in accordance with the law in a variety of circumstances but always pursuant to strict laws and agreements and subject to oversight, and that is absolutely essential to our national security.
For example, when Canadian authorities were able to take action in Strathroy, Ontario, a couple of summers ago to prevent a planned terrorist attack, that was due to an exchange of information with the United States. Working with in concert with our American partners and exchanging information with them is important to our national interest.
There are key questions about this legislation. First, what kind of information is involved in this exit information category? Second, what are the safeguards? Third, for what purpose is the information to be used? With Bill C-21, we have some very clear answers to this question.
The information, again to repeat, is only that which is found on page 2 of the passports we all offer up whenever we cross a border. It is worth pointing out that if Canada is sharing this incoming information with the United States, that will only be because the person in question has just come from the United States, where they necessarily handed that information to American authorities upon entry into that country.
This exchange does not provide the U.S. with any new information about someone beyond the fact that they have left the country.
With regard to the safeguards, all of this will be happening in the context of the most robust national accountability structure that Canada has ever had. We have implemented, for example, Bill C-22 to create the National Security and Intelligence Committee of Parliamentarians. As you know, that committee is now up and running.
Add to that, Bill C-59 was introduced in the House of Commons in the spring and is now before the Senate. It will create a new national security and intelligence review agency that some people have called a super SIRC. It is a new innovation in Canada’s security architecture. We have also proactively released new ministerial directions that expressly prohibit any sharing of information that would result in any substantial risk of someone being mistreated.
I should also note that you can expect to see in the weeks and months ahead further new legislation dealing with the proper oversight of CBSA. I know that has been a subject of interest in the Senate in the past. I simply offer the information here today that new legislation will be forthcoming to fill that gap.
Finally, what purpose does the exchange of information serve? Bill C-21 will help Canadian authorities to do everything from combating cross-border crime, to preventing terrorist travel, to improving the management of social benefit and immigration programs.
Take, for example, a case of child abduction and the issuing of an AMBER Alert. If it is discovered that a child is missing, police will be able to check the exit records to see if that child has in fact left the country. Where did they leave, at what time, and in whose company were they?
This is a new critical tool that will be invaluable to investigators working collaboratively on both sides of the border in their efforts to recover the child and to capture the kidnapper. For that reason alone, I hope this committee will see fit to pass this important legislation as soon as possible.
Our government is committed to ensuring the efficient flow of trade and travel that are so essential to Canada’s prosperity. We’re also deeply committed to keeping our borders secure. Bill C-21 is an important step forward in that regard.
I thank you for the attention you are giving to this legislation. With my officials, we will be pleased to try to answer your questions.
The Chair: We will start with our first round of questions.
[Translation]
Senator Dagenais: Thank you, Mr. Minister. My first question concerns the government’s process on this bill. Work in the other place on this bill has been inexplicably delayed by your government. You yourself introduced the bill on June 15, 2016. That was more than two years ago. I don’t understand the current urgency to pass this bill.
Several amendments have been proposed to the House of Commons Standing Committee on Public Safety and National Security to better protect the information of Canadians, and only those of your government have been adopted. Today, your government is asking the Senate to rush this bill through by limiting the work of our committee to a mere five hours to hear from witnesses. This deprives us of the opportunity to hear from many witnesses and to better understand the implications of the bill, which you yourself describe as critical.
I don’t mean any disrespect, but it’s a lack of respect on the part of the government for our work. It is as if we are here to automatically pass a bill within a few hours. This is the first time I’ve seen this since I’ve been a senator.
[English]
Mr. Goodale: Bill C-21 has been in the public domain for a considerable length of time to allow all Canadians, including all members of Parliament, an opportunity to review it and digest it. I had the opportunity very early in the going to have an informal conversation with a representative of the Conservative opposition in the house, Tony Clement, then critic for this legislation, who moved on to other responsibilities. At that early stage, Mr. Clement indicated to me that this was very appropriate legislation which he thoroughly supported. He believed the official opposition would be very happy to support it and see it enacted because it dealt with a very real issue in terms of border security. Based on those reassurances, I simply assumed there was a good deal of goodwill toward this legislation.
In dealing with the legislative agenda, we have had a very heavy agenda in terms of public safety and national security issues. Bill C-59, of course, has occupied a great deal of time and attention. Bill C-23 and Bill C-22 have done so as well. On top of that, there are other legislative items in Bill C-56, Bill C-71 and Bill C-83.
I realize that is an aggressive agenda, but they all deal with important matters of public policy that we try to bring before both the House of Commons and the Senate as rapidly as we can to provide fair and ample opportunity for all of the necessary issues to be properly ventilated.
I am sure, as the Senate has always done, it will give very thorough and conscientious attention to this legislation.
[Translation]
Senator Dagenais: I want to talk to you about the confidentiality of personal information. If this bill were passed, would you agree to having a committee review within five years what will happen based on the information collected, which would be kept for 15 years?
[English]
Mr. Goodale: I am not quite sure I understood your point. Would I agree with what?
[Translation]
Senator Dagenais: Personal information will be collected. If the bill is passed as is, would you agree to having a committee put in place to review within five years what is happening, based on the personal information of these people? This information could be kept for 15 years, but the committee could do a review every five years to ensure that the personal information being collected is still true and whether it still needs to be kept.
[English]
Mr. Goodale: Let me just say, first of all, that the only data being collected is what is on page 2 of the passport. There is no other great file or volume or secret collection of information. It is simply what some people call tombstone, the very basic information that appears on page 2 of the passport, together with two other items of information: the location from which a person left the country and the date upon which they left the country.
That, together with the information on page 2, is the only information that is involved under Bill C-21. No other information is affected.
In terms of a five-year review, we have already introduced the whole suite of national security legislation essentially around Bill C-22 and Bill C-59. There are other pieces of related legislation like Bill C-21, but the whole suite of legislation would be reviewed after five years by the appropriate committees of Parliament to ensure that it has been properly utilized.
If changes are required in the legislation at that time, those changes could be made. The provision for a five-year review of the full suite of national security legislation is already in place.
[Translation]
Senator Dagenais: Thank you, Mr. Minister.
[English]
Senator McPhedran: Welcome back, minister. When you were here discussing Bill C-23 respecting the Preclearance Act, we had a conversation about the value of stating explicitly Charter protection. Happily, there is a section 11 that talks explicitly about how a pre-clearance officer must exercise their powers and perform their duties and their functions in accordance with the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canada Human Rights Act in accordance with Canadian law.
Do you think it is a good idea for us to have a similar protection in Bill C-21? This is certainly something we could look at introducing. It would be nice if you had a welcoming stance toward that.
Mr. Goodale: Certainly, the principle behind your question is one that I absolutely agree with. Whenever anyone is administering Canadian law, they need to do so in accordance with the Charter of Rights and Freedoms, the Canada Human Rights Act, the Canadian Bill of Rights, and so forth. All of that is very important fundamental legislation.
The reason why it was necessary to state that explicitly in the case of Bill C-23 on pre-clearance is that we were dealing in that legislation with the behaviour of American customs officers performing their duties in a pre-clearance location on Canadian soil. We needed to make it abundantly clear that the overarching architecture of the Canadian Rights of Freedoms, the Charter and those other pieces of legislation would be the governing framework, so that the point was absolutely clear with respect to the Americans who were discharging their functions on Canadian soil.
In this case, the functions will be performed by Canadian customs officers. They will be the ones who will be administering Bill C-21. The Charter automatically, without question, applies to them just as it applies to all the rest of us.
I don’t think the particular clause is necessary in this legislation because the protection is already there. By definition, the Charter would apply to the behaviour of the Canadian officials who would be administering Bill C-21.
That is not to say I disagree with your point. Your point is well taken. Charter protection should apply, and it does because they are Canadian officials functioning in Canada.
Senator McPhedran: Let me ask a supplementary question. We did not succeed in having any clear protection for solicitor-client privilege when we were dealing with the pre-clearance bill. Information is very important and an aspect of the human rights of Canadians. There is really nothing in this bill that speaks to solicitor-client privilege. I am wondering if you could help us understand why not.
Mr. Goodale: I think the only reason is that solicitor-client privilege would never be touched upon by the provisions of this legislation. Again, we’re not talking about information writ large. The only information governed by Bill C-21 is that information which is on page 2 of your passport. It is not that this legislation could be used in any way to delve into any other kind of information pertaining to citizens crossing the border. It is only what is already there on page 2 of your passport which, if you were entering the United States, you would willingly show to the American customs officer. Plus, there are the two other factors I mentioned earlier: the day and time you crossed the border and the location where you crossed the border.
I don’t see in those circumstances where a solicitor-client privilege issue would arise, because we are not talking about broadly based information, collection or sharing. It is specifically border crossing information related to page 2 of the passport, which people already share with foreign officials.
Senator McPhedran: Thank you.
[Translation]
Senator Boisvenu: Welcome to the committee, Mr. Minister. I have a few questions about timelines. We know that information sharing with the Americans began under the former government, and it was President Obama who signed the U.S. law that authorized this information sharing.
Have the Americans shown any impatience over the years with your government’s slowness in passing this bill?
[English]
Mr. Goodale: What they’ve said to me is that they appreciated the speed with which I took on a variety of issues I inherited from my previous counterparts in the former government.
Actually, we came forward very quickly with Bill C-21 on exit and entry, Bill C-22 on the committee of parliamentarians, and Bill C-23 on pre-clearance. Those were the issues that my American counterparts raised with me in my early meetings with them back at the very beginning of 2016. They welcomed the fact that I had put these things on the agenda and had taken steps to get them into the legislative process.
You’re quite right. They had been discussing them for quite some time with my predecessors.
[Translation]
Senator Boisvenu: It’s difficult to blame the former government, when the Americans signed theirs in 2015 —
[English]
Mr. Goodale: Especially when it is true.
[Translation]
Senator Boisvenu: — and you came to power. So, Canada can’t pass a bill before the Americans have even signed it.
I have another question, Mr. Minister. We know that this bill will control the length of time Canadians stay in the United States and vice versa, since you will have their entry and exit dates. Americans will know when a citizen leaves Canada and when they return.
This has implications for provincial programs. I am thinking, for example, of health insurance. You cannot be out of the country for more than six months less a day. Do you plan to share this information with your provincial counterparts so that they can intervene with irregulars who stay beyond the time allowed to be eligible for health insurance?
[English]
Mr. Goodale: Just to be very precise, Senator Boisvenu, this legislation does not establish any limitations on the length of time a person can either be inside or outside of the country. It simply collects the data on when people leave. If there are eligibility criteria for certain social programs, for example, those are established in the terms and conditions.
[Translation]
Senator Boisvenu: Thanks to this legislation, will the American and Canadian authorities be able to determine the length of stay of Canadian tourists? I’m thinking of snowbirds. With this information sharing, will the Americans be able to know how many days snowbirds have been in the United States?
[English]
Mr. Goodale: This legislation will allow the collection of data, indicating when particular individuals left Canada or when they left the United States coming back.
[Translation]
Senator Boisvenu: So, we’ll have an idea of the length of stay?
[English]
Mr. Goodale: But the rules about how much time is permitted in one country or another to benefit from a certain program are established by that program, not in this legislation. This legislation deals only with the collection of basic data.
On your point about health care, this legislation does not apply to provincial programs. It applies only to federal programs.
[Translation]
Senator Boisvenu: But if I’m the Minister of Health of Quebec and I see that you have data on Quebec citizens who travel to the United States and who may exceed the amount of time allowed to be eligible for health insurance, I’ll be tempted to ask the federal Minister of Health if we can share this information so that I can claim taxes from Quebec citizens who are in an illegal situation with regard to a provincial program that is 50 per cent reimbursed by the federal government.
[English]
Mr. Goodale: My answer to my provincial colleague would be no, with the greatest of respect, because the legislation does not authorize me to share information with provinces, only within the federal system.
[Translation]
Senator Boisvenu: Could the Americans use this data to collect taxes from snowbirds, for example, who work in the United States? We know that many Canadians working in the United States are often exempt from paying taxes because their stay is relatively short, but they become eligible to pay U.S. taxes if the stay exceeds a certain period of time.
[English]
Mr. Goodale: The Americans would enforce their own rules and regulations. They would have no authority over Canada, of course, but they would be able to enforce their own rules and regulations within their system as they see appropriate.
Canada will enforce the integrity of its social programs. The Americans enforce theirs. The information that is being shared here does not affect the responsibility of one country or the other to deal with their own domestic responsibilities.
[Translation]
Senator Boisvenu: Do you plan to put in place a communication strategy with these people to ensure that their stay in the U.S. respects American laws so that they do not, at some point, get a nasty surprise?
[English]
Mr. Goodale: It is very important for everyone crossing the border, entering another jurisdiction, to understand clearly that they are no longer operating under Canadian law. They must be aware of the rules, the regulations and the laws of the jurisdiction into which they have entered.
We broadly try to communicate that to Canadians crossing the border as effectively as we possibly can to make sure that people appreciate they’re no longer within Canadian jurisdiction when they are operating, living or spending some time in another country.
Your point, senator, about making sure Canadians are aware of the rules is a very valid point. In terms of people crossing the border, we should on all occasions make sure they understand the rules.
I have one point that I should make, though, on the issue of eligibility. As I said, this legislation applies to federal jurisdiction only. It doesn’t apply to the provinces. I have been asked on other occasions how this might impact eligibility for Old Age Security, OAS. It is important to note that once a person has lived as an adult for 20 years in Canada, under the terms of the OAS program they are entitled to claim and receive their pension wherever they may choose to live either in Canada or around the world. After 20 years of adult residency in Canada, your OAS becomes fully portable wherever you may go.
Senator McIntyre: As I understand, entry/exit information will be shared within the Government of Canada. Some departments and agencies will either routinely or occasionally have access to it. Is there any department or agency within government that would not have access to entry/exit information on Canadians?
I understand that the information would not currently be shared with provinces and territories. What legislative or regulatory provisions would have to be changed in order to permit such information sharing?
Mr. Goodale: Could I ask Martin Bolduc to respond to that, please?
Senator McIntyre: Yes.
Martin Bolduc, Vice President, Programs Branch, Canada Border Services Agency: Right now the bill is seeking to amend section 107 of the Customs Act so that we can share information with ESDC on social programs. We already have the legislative authority to share information with CRA on a case-by-case basis, and with IRCC for programs that need confirmation of residency.
The information could also be shared on a case-by-case basis with both the RCMP and CSIS. That sort of limits the scope of the information sharing.
Senator McIntyre: What about the sharing of information with the private sector and foreign governments?
Mr. Bolduc: No, not that.
Senator McIntyre: Is there a possibility that could happen?
Mr. Bolduc: That is not authorized under the Customs Act currently.
Senator McIntyre: My next question has to do with the regulatory discretion under Bill C-21. Some concerns have been raised about the process that has been left to regulations related to how entry/exit information will be collected.
Could you explain what specifically has yet to be determined through regulations and why you believe it necessary to proceed in that manner? How will the provisions of specific regulations be independently scrutinized?
Mr. Goodale: There is, of course, an elaborate system for establishing regulations under Canadian law once legislation is enacted that includes an authority to create regulations.
There is another onerous process for bringing forward those regulations, allowing them to be scrutinized internally within government and then externally during consultation periods, before they are finalized and actually come into effect. That regulatory regime would apply in this case to make sure that the regulations had the usual kinds of both internal and public scrutiny they normally get.
The process, though, is really quite simple and straight forward. For someone who is travelling by air, leaving the country, the information would be collected from the passenger manifests. From the point of view of the travelling public, they would be put to no additional step or procedure. It is the information that they’ve already provided when they buy their ticket and present themselves to be boarded on an aircraft.
By air, the collection mechanism is via the passenger manifests. When it is a land crossing from Canada into the United States, the collection method is through the cooperation between the border service in the United States and CBSA on the Canadian side. You present yourself at the customs office on the American side of the border and show your passport. They run the passport through the scanner for their own purposes, as they normally do, to determine if there is any issue with the particular individual crossing the border.
Once they have run it through the scanner, that information will be returned to the CBSA. On the American side that is entry information. On the Canadian side that exact same information is exit information. It is as simple as that.
The regulations will establish the detailed steps for how the manifests are handled with air travel and how the information is moved back and forth between American officials and Canadian officials for land crossings. The regulations will lay out the detail of that but the process itself is very simple.
Maybe Andrew Lawrence could add to this.
Andrew Lawrence, Acting Director, Traveller Programs, Canada Border Services Agency: The regulatory structure is there to clarify the timing, the manner, the circumstances and the sources of exit information. As the minister outlined, at the land border the source will be the U.S. Customs and Border Protection. The timing will be near real time upon entry into the U.S. The mechanism will be our reciprocal exchange.
It is in an effort to provide clarity on how and from whom we receive exit information, as well as to provide some flexibility as we bring on other modes or we get innovative new tools like apps and cellphones. People tend to be using those as part of their travel more and more frequently.
Senator McIntyre: We already have the bioinformation on the land border. We are adding air travel, from what I understand. There is an addition here.
Mr. Goodale: There are two things here that are different. In terms of air travel, we’re creating the authority to collect the necessary information off the manifests. With respect to the land border, the information is exchanged in a slightly different way.
When the Americans record that you have entered their country, that same data will be provided to Canada so that Canada will know at that moment that you left this country. It is the same data, just viewed through the different end of the telescope.
Senator Griffin: My question relates to the exportation of goods and the obligations to report under the new subsection 95(1) of the act. The new subsection (1.2) exempts goods shipped by boat or plane, as you pointed out, from the requirement to report. However, subsection (1.3) gives the discretionary power to require that any goods exempted under subsection (1.2) be reported.
This raises a practical problem that disproportionately affects the Maritimes. When we fly from the Maritime provinces to Central Canada, we are flying over Maine usually. We’re in American airspace before we get here.
When people are shipping goods they need certainty for themselves or, in this case, specifically about goods. What are the intentions of the government when utilizing this power? Would the Government of Canada consider an amendment to remove the discretionary power given to a CBSA officer?
Obviously this is an awkward situation where we’re flying over American airspace. We happen to be in a part of Canada where the border isn’t determined by the forty-ninth parallel. We’re an irregular shape.
Mr. Goodale: I understand that predicament because every time I fly here from Regina I end up in Michigan for a few minutes.
I will ask Martin Bolduc to explain the technical requirement here.
Mr. Bolduc: The amendments are introduced so that CBSA has the capability to do an examination on export based on information that we receive.
The example that you are giving right now is of someone flying from Halifax to Winnipeg going over U.S. airspace. Those goods would not be verified by CBSA officers because you would be landing in Winnipeg as a domestic traveller. CBSA would not be there to welcome the aircraft and the passengers.
We wanted a bill that would give us the flexibility to be able to exercise our full authorities both on import and on export, essentially to match the authorities that we currently have on import with the export mechanisms.
Senator Griffin: How does that relate to subsection (1.3) that gives the discretionary power to require that any goods exempted under subsection (1.2) be reported? They would have been exempted because, as you point out, they are destined for domestic transport.
Why do you have subsection (1.3) in that case?
Mr. Lawrence: This provides a discretionary authority to CBSA to examine goods that would otherwise not be required to be reported. It is not just subsections (1.1) and (1.2), but subsection (2)(a) as well.
This is the discretionary authority for an officer to examine the exportation of goods, whether it is on a commercial stream of containers and commercial shipments or hand-carried goods by passengers about to leave the country.
Senator Griffin: It seems to leave a lot of discretionary power there. As I am saying, when Maritimers are shipping goods, they need some certainty. The minister has already pointed out an example where he is often flying briefly in U.S. airspace when coming from home to Ottawa.
Of course, in British Columbia, the ferry that goes to Vancouver Island from Tsawwassen briefly crosses into the state of Washington. Is it your intention to give an officer the discretion to arbitrarily require the reporting of goods that are not destined for export in that occasion too?
Mr. Lawrence: Given the nature of the travel and resources within the Canada Border Services Agency, this exemption is not meant to create a systematic examination of these goods. Any authorities exercised under these provisions would be very targeted in nature.
Senator Griffin: I come back to my previous comment. The word “arbitrary” describes it. It gives an officer a lot of power and the ability to use his discretionary decision making in cases like the ones I am citing.
Anyway, we will see how it works. I think it is awkward.
Mr. Goodale: As the committee continues its examination of this, we’re happy to look at the details of the point that you are making. If there is a way to express the intention in a manner that you’re more comfortable with and still accomplishes the objective, we’re happy to take a look at it.
The intent here is to plug a loophole with respect to smuggling.
Senator Griffin: Yes.
Mr. Goodale: There are certain powers that the CBSA has now with respect to smuggling into the country. Oddly, CBSA has never had those same powers in relation to smuggling out of the country.
The objective was to mirror what exists now with respect to smuggling in, in new provisions with respect to smuggling out. I think that’s a very worthy goal. As I mentioned, it was the subject of an extensive report by the Auditor General in 2015.
That is the problem we’re trying to address. If some fine tuning needs to be done here in terms of the language, we would be happy to look at any proposal you might want to draw to our attention.
Senator Griffin: Terrific, I greatly appreciate that.
Senator Oh: Canadian airports are probably the only airports in the world that have immigration arrival lounges, but immigration departure lounges.
Aside from collecting information from the airlines, with Bill C-21 are you setting up immigration departure lounges in airports so that their locations can be physically stamped on passports when departing the country?
Mr. Goodale: I will ask Martin Bolduc to respond to that.
Mr. Bolduc: The minister made reference to the information being transferred via IT systems. We are not introducing a physical control at export which you would see in Europe.
Senator Oh: At almost every airport.
Mr. Bolduc: Yes, you meet an official as you’re departing the country. That won’t be the case in Canada. The information will be shared by the airlines directly with CBSA.
Mr. Goodale: Automatically.
Mr. Bolduc: Yes.
Senator Oh: When it comes time to renew the permanent citizenship card with the maple leaf cut, at that moment you have to prove how long you physically stayed Canada and how many days you will be away from Canada.
Does the new system in Bill C-21 help to improve that? Right now it is a pain in the neck. I have had a lot of complaints from PRs, permanent residents.
Will you be sharing information with IRCC to prove how much time they are here in Canada?
This new information will be of considerable assistance to IRCC in ending debates about how long it has been. There will now be a record that can be verified.
That will be helpful to the travelling public. It will also save money for IRCC in their administration.
Senator Richards: This is kind of a follow-up to Senator Griffin’s question. My question has to do with the exportation of goods. Campobello Island, located in southern New Brunswick, currently has no direct connection to the rest of Canada.
The only way goods can be shipped to Campobello Island are via St. Stephen, New Brunswick, into the state of Maine for a 77-kilometre journey and re-entry into Canada to Campobello Island via an international bridge. Ferry service didn’t exist last summer. This creates a significant barrier to domestic trade and discriminates against residents of Campobello Island.
Would the minister support an amendment to Bill C-21 to give cabinet the discretion to exempt certain land routes such as Campobello Island from the requirement to report exported goods? The goods are not being exported. They are going from one spot in Canada to another.
Mr. Goodale: Could I ask Andrew Lawrence to respond to that in terms of how we will cope with unusual circumstances like those of Campobello Island?
Mr. Lawrence: Certain requirements under Bill C-21 relate to the exportation of goods, when goods need to be reported and when they can be examined.
In the example that you outlined, the requirement to declare imported goods is found in a different section of the Customs Act. Goods leaving Canada that enter the United States and then arrive at Campobello Island have an import requirement.
The authorities do not impact obligations to report goods as they enter Canada, so there is the report stating I have the goods with me. Then there are the administrative requirements around those goods, whether or not they are required subject to duties and taxes.
Senator Richards: Yes, but the United States authorities have no reason to obey our international laws. They can take goods from cars travelling from one part of Canada to the States. They have jurisdiction over that, don’t they?
Mr. Lawrence: The United States has jurisdiction as to which goods may or may not enter the United States, just like CBSA maintains control as to which goods may or may not enter Canada based on different program legislation.
We manage the issues today of people transiting with goods. They are generally dealt with at the port of entry on a case-by-case basis, depending on the scenario, the goods in question and the individual.
Mr. Goodale: As I said to Senator Griffin, if there is a specific problem here, we’re happy to take a look at the details of it and make sure that the legislation is properly structured to accomplish the purposes of stopping smuggling, and obviously do so in a manner that facilitates legitimate trade and travel of people who are obeying the law.
We’ll examine your point to see if any specific accommodation is required within the legislation to deal with a situation like Campobello Island.
The Chair: Moving to round two, I remind senators that the minister has a hard stop at two o’clock.
Mr. Goodale: Question Period waits for no one.
Senator McPhedran: I have a question about information sharing as being the basic theme. Will you be holding consultations with the public in terms of the regulations?
Mr. Goodale: That is a normal part of the regulatory process. They are pre-published, there is a comment period, and then they go for final publication. There will be an opportunity for public input, yes.
Senator McPhedran: Do you have a sense of time on that?
Mr. Goodale: It is as soon as the legislation actually becomes law.
Senator McPhedran: Are you ready to roll?
Mr. Goodale: Can Andrew Lawrence give us an idea of how long it will take to draft the regs?
Mr. Lawrence: The legislative authority to publish those regulations is contained within Bill C-21. Upon Royal Assent, we’re in relatively good position then. We are ready to roll.
Senator McPhedran: Great, it is good to hear that there is no sharing of Canadian exit data to foreign parties. Can you address the sharing of Canadian exit data with CSIS or with other foreign agencies and the storing of that data in their systems?
Mr. Goodale: That is dealt with more comprehensively in Bill C-59, which deals with information sharing among federal agencies.
Bill C-59 attempts substantially to improve the standards and the rules to make sure that the sharing parties understand what are their obligations both in giving information and in receiving information. This will make sure that the nature of the sharing is recorded at both ends of the transaction and will increase the standards when sharing is appropriate and when it is not.
The regime for that is laid out quite comprehensively in Bill C-59, which is before the Senate right now.
The Chair: I remind the senators that the officials will be staying for the next hour as well.
[Translation]
Senator Dagenais: Thank you, Mr. Minister. I would like to come back to confidentiality in information sharing. We know that the Canada Revenue Agency and Revenu Québec work together when it comes to sharing information. You also mentioned the Canada Pension Plan. Even if, in your opinion, very little information could be shared, to what extent could it be used by the Canada Revenue Agency and, eventually, by other provinces? Ultimately, these people talk to each other all the time.
[English]
Mr. Goodale: In terms of provinces, again, this legislation does not include any authority to share information beyond the Government of Canada. It does not provide any amount of increased information to the provinces.
Within the federal family itself the Customs Act lays out detailed provisions of what information can be shared, the terms and conditions, the end-use limitations, and so forth.
We have consulted through the whole process in great detail with the Office of the Privacy Commissioner. There are initial assessments on the website already in terms of the impact on privacy. Once the legislation is actually enacted, we are obliged by law to do another privacy impact assessment, which will also be made public according to the standards of the Privacy Commissioner.
The Chair: On behalf of the committee, thank you very much, minister, for joining us today. We are always appreciative of your attendance and your answers.
Mr. Goodale: Thank you, Madam Chair. I wish the committee every success in dealing with this legislation.
The Chair: I remind the senators that Mr. Bolduc and Mr. Lawrence will remain to answer questions.
For our second panel today we welcome from Immigration, Refugees and Citizenship Canada, Mieke Bos, Director General, Admissibility, and Marc-André Daigle, Director, Strategic Initiatives and Global Case Management System Coordination, Immigration Program Guidance.
Ms. Bos, I understand you have some opening comments.
Mieke Bos, Director General, Admissibility, Immigration, Refugees and Citizenship Canada: Thank you very much for inviting me today to discuss the Entry/Exit Initiative as Bill C-21 is now being studied by your committee.
[Translation]
Thank you for inviting me here today to discuss the Entry/Exit Initiative.
[English]
My name is Mieke Bos and I am Director General for the Admissibility Branch at Immigration, Refugees and Citizenship Canada, IRCC.
[Translation]
I am accompanied today by one of my colleagues from the Operations sector: Marc-André Daigle, Director of Strategic Initiatives and Global Case Management System Coordination.
[English]
As an Entry/Exit Initiative partner, IRCC will receive entry/exit data from the CBSA to support its program objectives.
[Translation]
Building on what you heard, I would like to focus on the significance of the entry/exit Initiative for Immigration, Refugees and Citizenship Canada, or IRCC.
[English]
As you just heard from the Minister of Public Safety, the essence of the Entry/Exit Initiative is about information sharing, verification and compliance. It is about knowing who enters Canada and who exits Canada at any given moment in time. It is about providing a complete travel history for those applying to be permanent residents or Canadian citizens. It is a system to share information between Canada and the U.S. so that a record of entry to one country becomes a record of exit from the other.
I cannot stress enough how access to this information will enhance program integrity across multiple lines of business by providing IRCC officers with a tool to objectively confirm an applicant’s presence in or absence from, or their entry to or departure from Canada.
With entry/exit records, IRCC officers would be able to verify the accuracy of information submitted by applicants, including time spent inside as well as time spent outside of Canada. This information may impact a decision on whether or not an individual qualifies for permanent resident status or for a grant of citizenship.
[Translation]
IRCC has been working closely with the CBSA to advance this initiative and plans to obtain entry and exit information from the CBSA to support its administration of the Immigration and Refugee Protection Act, the Citizenship Act and the Canadian Passport Order.
[English]
Access to CBSA entry/exit information will provide IRCC decision makers with objective travel history to support the processing of an application or investigation.
I would like to give you a few examples. Accurate, objective entry/exit records will allow IRCC to strengthen the integrity of citizenship and immigration programs by being able to verify that those who claim to have resided in Canada and to have met the residence requirements have actually done so; to better identify temporary residents such as visitors, workers and students who overstay their allowable period in Canada; to verify that sponsors are residing in Canada where required by law; to verify relationships and compliance with conditions for spouses and partners applying or admitted in the family class; to ensure ongoing entitlement to a Canadian travel document; to support investigations into possible fraud in relation to immigration, citizenship and passport travel documents; to detect persons overstaying their visa and immigration warrant closures; and to identify individuals who may have failed to meet residency requirements for permanent resident status or citizenship applications.
From a client perspective, the benefits of entry/exit information means that IRCC is able to make better informed decisions that impact the lives of those clients. IRCC will use entry/exit information to enhance the processing of legitimate applications and investigations in the temporary resident, permanent resident, asylum, citizenship and passport programs.
For example, entry/exit records would make it easier for IRCC to verify that residency requirements are being met by applicants for eligibility in citizenship and immigration programs.
Access to entry/exit information from the CBSA will be used to strengthen current limited travel history information found in passport stamps, which may not always be available or will add to processing delays.
Moving on to privacy safeguards, IRCC has a strong privacy track record. As holders of a vast amount of personal information, we are well versed in the legislative and policy requirements that guide the collection, use and safeguarding of personal information. The existing privacy frameworks that IRCC has in place for its various lines of business continue to apply.
IRCC will be submitting its own privacy impact assessment to the Office of the Privacy Commissioner for entry/exit and updating its application forms and website to ensure that applicants are aware that information on their travel history would be obtained from the CBSA to support their application.
From a functionality perspective, IRCC would only query the CBSA entry/exit database when processing an application or when conducting an investigation. For instance, IRCC would access entry/exit data when there is a program need, such as to confirm an individual has met the residency requirement for a grant of citizenship.
As senators can tell from my remarks, from an IRCC perspective we very much welcome your consideration of Bill C-21. The information that will become available to us once entry/exit is fully functional is important to the work of my department.
With that I conclude my remarks. Thank you very much for the opportunity to be here.
[Translation]
We will be pleased to answer any questions you may have. Thank you.
[English]
The Chair: Thank you very much. We’ll move to questions.
[Translation]
Senator Dagenais: Thank you to our guests. In the United States, there is already a lot of data collection going on to control our entry into the U.S. All we have to do is look at a website to find out, with our name and date of birth, how many times we’ve entered the United States.
As my colleague Senator Boisvenu mentioned, this can sometimes be important for snowbirds, but it is also important to demonstrate that we do not have permanent residence in the United States. The U.S. Internal Revenue Service requires all Canadian citizens who stay in the United States for more than 180 days a year to complete a form to clearly demonstrate that their principal residence is in Canada. As a result, our American neighbours already have many systems in place to control the entry of Canadians.
That being said, I would rather talk about immigration fraud. What would enable us to better combat immigration fraud with this new information sharing? Recently, many entries into Canada have been made in a more or less legal manner. In Quebec, there is Roxham Road. When I cross customs, I never use Roxham Road and I don’t know if it’s legal to use that road.
So we must make efforts for better information sharing, especially with regard to refugees. Could you tell us what would help you, based on this new formula, to better fight immigration fraud?
Mr. Bolduc: I’ll answer the first part of your question regarding refugees and Roxham Road. Then I will let my colleague answer the part on immigration programs where residency as a key element in the decision-making process.
Bill C-21 will not affect the clientele we see on Roxham Road. This bill will essentially allow us to know the exact date an individual entered the United States to give us an idea of how long they were in the United States before they arrived at the Canadian border; it will be essentially the same if someone arrives at a border entry office. This information may be used in the event of an investigation or to document our cases before the Immigration and Refugee Board of Canada. These elements can be useful to us.
I’ll now turn things over to my colleague regarding the integrity of IRCC programs.
[English]
Ms. Bos: I would like to talk about the usefulness of this information for maintaining the integrity of our programs. I will ask my colleague Marc-André Daigle to provide a bit more detail.
We will not be collecting any new information, but we will basically have better means to collect information as we are already required under our current programs.
To give you an example, there are residency requirements to become a permanent resident. Applicants need to prove to an officer that they have met the residency requirements. A senator mentioned earlier how complicated that could be, in that they need to maintain their boarding passes to show when they left and when they came back. There are fewer and fewer organizations that provide passport stamps, so the evidence is harder to collect.
An entry/exit system will have an automatic registry of applications for permanent residents to be proved against. It is the same with citizenship. There are residency requirements. This will help us to establish, with great accuracy, whether or not the applicant has met the residency requirement for those two lines of business.
I will ask Marc-André Daigle if he has supplementary information.
[Translation]
Mr. Daigle: Allow me to provide a brief overview of the programs.
For immigration, for the temporary residence component, temporary residents must meet certain conditions, including remaining in Canada for the period authorized.
The fact of having access to this information will allow us to verify whether individuals have previously met the required conditions.
The permanent residence component includes a component that deals with physical presence in Canada to meet eligibility criteria. This will allow us to have objective information to ensure that these people actually meet the eligibility criteria.
For people who are already permanent residents, one of the conditions to maintain their permanent resident status is to have been present in Canada for a period of two years every five years.
Access to entry and exit information through a partnership with our partners at the Canada Border Services Agency will allow us to access this objective information when people want to renew their permanent resident status or obtain a permanent residence card.
We have a similar component for the citizenship program, which is to maintain a presence in Canada to obtain Canadian citizenship. With respect to a few situations where certain populations are at greater risk and where some abuse of our programs may occur, this information will allow us more objective access to information.
[English]
This is to have the ability to do more investigations on those case-specific ones where we’ve determined that it is a bit more at risk for certain program vulnerabilities.
Senator McPhedran: I want to pick up on some of the questioning I directed to Minister Goodale around information-sharing and accountability.
I note in your remarks that you have assured us that the existing privacy frameworks that IRCC has in place will continue to apply. You have also stated that IRCC would only query the CBSA entry/exit database when processing an application or conducting an investigation.
Is there a formal agreement between your agencies covering this? Is it in place? Is it being updated? How does it in any way relate to the particular bill?
The second part of my question is on accountability and information sharing. What is currently required of IRCC to report back to Parliament and/or public reporting out in terms of how you use private information?
Ms. Bos: I will try to answer the first two questions.
Yes, there are already explicit authorities and MOUs in place to exchange information between the CBSA and IRCC. We are covered in that sense. As I mentioned in my opening remarks, IRCC will conduct its own privacy impact assessment as well. Probably like CBSA, we’re already well advanced in undertaking that in anticipation of the legislation passing and the regulatory phase.
Should the legislation pass, we will look at what is changing in terms of the mechanism for how the information would be obtained. In the underlying framework there is already an MOU in place between the CBSA and the IRCC in terms of information sharing.
The authorities already exist, as I believe the minister and Mr. Bolduc mentioned. The real change is more in the way in which the information will now be systematically collected.
Your second question was about the requirement for personal information.
Senator McPhedran: Public accountability and reporting back to Parliament.
Ms. Bos: Right.
Senator McPhedran: What mechanism is in place, assuming there is one? What does it look like, and how does that impact on Bill C-21?
In other words, to shorten the question, it is good that an impact assessment is being done inside the agencies, but how do we find out about it? How does the information get shared so that the public and Parliament have some sense of where there may have been problems?
Ms. Bos: The overall accountability and responsibility for the initiative lie with the agencies. I am assuming, in terms of reporting and accounting, that responsibility will lie primarily with the CBSA. As we do on so many initiatives, we always work closely together and feed into reporting of other agencies.
I stress that all our business lines have requirements in terms of how to handle personal information. The IRCC has one of the largest personal information holdings in the federal government. We have robust frameworks in place for the management of personal information. Those rules continue to apply even following the entry/exit legislation coming into effect.
Senator McPhedran: I want to make sure I have been clear about my question. It is not so much a question about the internal processes. It is a question of public accountability and reporting back.
For example, with the impact assessment that is being conducted, how do we find out about that?
Ms. Bos: The impact assessments are always public. You can find them on the IRCC website. This one hasn’t been made public because, of course, we’re waiting for the legislation to be finalized.
As always, there is a lot of information on the IRCC website and the Privacy Impact Assessment summaries, or PIAs as we call them, will be published as well.
Mr. Bolduc: If I may add, we started rolling out entry/exit a number of years ago. You can go on the CBSA website and consult the PIAs that have been done up to now. Those are made public.
In addition, we have introduced signage at our ports of entry to inform travellers that the information is being collected. In moving forward, if the bill gets Royal Assent, we’ll work with other partners and airlines to ensure that the travelling public knows that the mechanism and the transparency exist with the current bill.
Senator McPhedran: Do you anticipate that will be in the regulations? Is that on the list of issues to address in the regulations?
Mr. Bolduc: No. It is more an operational approach to make sure that people are aware. That will not be embedded in the regulation.
Mr. Lawrence: No. One of the elements around privacy is notification. We are obliged to notify travellers that their information is not only collected by the CBSA but to whom it is shared. We do this a number of ways. With entry/exit, we brought forward signage at the land border because that is where we send entry information back to the United States to create an exit record.
We publish all of our PIA executive summaries on the Internet. We publish an annual privacy report with respect to all of the PIAs that were done throughout the year. We submit all of our PIAs to the Office of the Privacy Commissioner, who in turn reports to Parliament on an annual basis.
[Translation]
Senator McIntyre: Thank you for your presentation. Mr. Daigle, with respect to privacy measures and concerns, I understand that IRCC will provide its own assessment. I also understand that your organization will update its application forms on its website. Could you explain further what this assessment will entail?
Mr. Daigle: Thank you for your question. Basically, any change requires an update of the information. That’s how we do it.
For our department, vigilance with regard to the protection of personal data is very important, it is rooted in our culture, in our ethical values and in our procedures with our officers. So, in relation to this question, all our programs are detailed on our website and are updated, as are all our forms, to clarify exactly the intent of the data use. In addition, the schedule of data provisions provided by Library and Archives Canada is strictly followed to ensure that the —
[English]
— retention period is followed according to the schedule in terms of the maintenance of the information.
Senator McIntyre: My next question is for the Canada Border Services Agency. It has to do with public consultations.
I understand the CBSA had engaged in public consultations regarding the Entry/Exit Initiative. In other words, those consultations have been ongoing. I further understand that regulatory development consultations will take place in the future.
That said, what consultations in regard to the Entry/Exit Initiative have already taken place? What were the key findings? When are the regulatory development consultations likely to occur? Will the key findings be made public?
Mr. Lawrence: Consultations began as part of the Beyond the Border Action Plan initiative. It included town hall meetings across a number of communities in Canada. Some of the feedback was related to the quality of information received by the CBSA. It needs to be of sufficient quality in order to avoid false positives and to make the initiatives work properly.
A lot of our consultations have been targeted at the air industry and air carriers in particular. We have a single stakeholder in United States Customs and Border Protection with which we are exchanging information at the land border. Over 200 independent air carriers need to be on board with a CBSA system to collect outbound passenger manifests.
Information we’ve received from them includes making entry and exit align as great an extent as possible with similar programs in the United States in terms of the timing and the content of the messages. Also it includes aligning different programs within Canada to go to air carriers once rather than hitting them up three or four times with different IT changes.
Come once with one standard specification, and they will open their box, will make the change and will close the box. Then we can implement. Those have been the two key pieces of feedback we have received.
We also co-chair the Air Consultative Committee in partnership with Transport Canada. We do that twice a year. Entry/exit generally forms part of that agenda.
Senator Griffin: My question is related to oversight of information sharing and forms of redress. The minister mentioned Bill C-59 a few minutes ago. Although Bill C-59 allows for oversight on matters related to national security, I have a concern as to whether it pertains to matters related to Old Age Security and Employment Insurance, especially in the Maritimes where an individual could cross a border by land but could return by boat or airplane.
Is there a situation in which data is not shared, is incorrect or is in fact missing? Who in government is accountable? If Employment and Social Development Canada makes an incorrect determination of eligibility for their programs, what recourse does an individual have? Is this an ESDC problem or a CBSA problem? What administrative actions will then occur? How does a person see the information and have an opportunity to correct it?
In the Maritimes we could be flying out by airplane or travelling by boat, and we could be coming back on land. I could easily see that information may not get collected. What recourse would a person have?
Mr. Bolduc: I’ll start with the first piece of the response, and then I’ll turn it over to my colleague for the second piece.
Bill C-21 will give the authority to CBSA to collect exit information on Canadian and all travellers by air and exchange it with the U.S. on land.
Individual responsibility for program administration lies with departments that make a request to CBSA for information. To your example, if they are not satisfied with a decision made by ESDC, they would have to go to ESDC. The same applies with IRCC. We are there to collect the information, protect it, and share it based on legislation and authorities for the administration of specific programs.
Perhaps Andrew Lawrence wants to add something.
Mr. Lawrence: I can build on that. All of our information-sharing agreements, and particularly the one with the United States, include right of access and rectification for all travellers. If you come to CBSA and say, “I didn’t leave that day; you have me confused with somebody else,” we’re obliged to go in, make that determination, determine what has happened and why we would have a false positive. Then we have to notify every other department with which we have shared that record.
Everybody can access their traveller history. They have the right to have that information updated to make sure it is true, complete and accurate. We would in turn notify the United States and anybody we would have shared it with, including ESDC for the purposes of Employment Insurance and Old Age Security, that the file had been updated.
It is important to note when we disclose or would disclose information to ESDC that does not constitute an immediate termination of benefits. That would create a work item for the program integrity operation within ESDC to verify that the individual is in fact the same individual who is receiving the benefits, begin a correspondence campaign, and take whatever measures ESDC takes as part of its integrity investigations.
There is a colleague from ESDC here today, if you have any further questions specifically with respect to their recourse.
Senator Griffin: I see under section 94 of Bill C-21 that anyone leaving Canada has to answer truthfully any questions by an officer. What if they simply refuse to answer?
Mr. Lawrence: They would be in breach of their obligations under the Customs Act. Section 160 makes it an offence not to provide true and complete responses to questions posed by CBSA officials. It is very similar to your obligations as a traveller when you enter the country.
If you’re at a port of entry seeking to come into Canada, this a residual or a conditional authority which does not make it an obligation for you to report your departure but require you to answer questions truthfully if asked by a CBSA officer.
Senator Griffin: If they are asked and they choose not to answer, can they just leave?
Mr. Lawrence: It depends on why the CBSA officers would be asking. It could be a matter of you pose an imminent threat. We could have reasonable grounds to suspect that you have got contraband, narcotics or those types of items on your person. Then the recourse or the response from CBSA is proportionate to the threat of the individual.
Senator Oh: I asked a question earlier of the minister about the permanent resident card with the maple leaf cut. Do you have direct access to the new system that is coming in, or do you have to pick every file and give them to CBSA to verify how long they have been staying here? Can you explain that to me?
Ms. Bos: I will start, but I will turn to Mr. Daigle for the operational details.
My understanding is that for the two programs where we have stated in law permanent and citizenship residency requirements, the applicants have to demonstrate that they meet the residency requirements. We have an automated link with CBSA to establish that the requirements have been met.
In other lines of business such as temporary, it would be more on a case-by-case basis. If there is an application and we have reason to believe that maybe the temporary resident overstayed his or her allowed period of time in Canada, or in the case of rarer but existing passport fraud investigations, it would be on a case-by-case basis.
There will be an automated exchange of information for permanent residency and citizenship. I will turn to Mr. Daigle to provide more operational information.
Mr. Daigle: I appreciate the question as it definitely is a reflection of our current reality in terms of our processors and officers, and the challenges in terms of our clients.
One of the struggles or challenges is to go back in time to provide historical information. It is quite a burden both for folks applying for an Immigration Refugees and Citizenship program, as well as for officers making that determination.
As my colleagues have expressed, having this neutral objective information systematically for new applications, our information systems will automatically obtain that information. Our officers are already good at making determinations, but it will be an even clearer picture of the historical information that clients will continue to have to provide. Now we’ll have much more information to corroborate it.
Senator Oh: I have heard from some of the residents in my area that it takes up to four or six months, and sometimes over a year, to get a renewal of a residence card. Will this new system help speed up the process?
Mr. Daigle: I’ll allow myself to say to a certain extent but not fully. There are several components in terms of what is required in meeting the program eligibility and all that.
In the other efforts that are underway in terms of modernizing our system, such as moving toward online services, we are seeing program reviews that could also help to expedite services and not just strictly this initiative.
Senator Oh: I just want to follow up on Senator Griffin’s question about a returning resident.
I was told by some of the residents in my area that people who come back have been asked to go into a room where they sit for two or three hours. No questions were asked. They checked through their luggage and nothing was wrong. This happens frequently.
Could you explain why they let them sit in a room for two or three hours before they are sent home?
Mr. Bolduc: Without the specifics of a case it is difficult for me to comment. From time to time, individuals have to go through a secondary examination, which is a more in-depth examination. There are reasons for that. You could be importing commercial goods. You could have undeclared goods. You could need immigration documentation or a permit. We don’t believe someone is a genuine visitor. You could have plant, food or animal merchandise with you that is legislated.
I haven’t seen a whole lot of secondary examinations for two or three hours in my career. I do not mean that it cannot happen, but it is not something that is routine that someone has to go through a secondary examination for two or three hours because of something substantial.
Senator Oh: I am not talking about tourists. I am talking about returning residents who come back and who live here in Canada. It happens.
If you blacklist someone, how long do they stay on the list? Is it one year, two years or 10 years?
Mr. Bolduc: We don’t blacklist people. If you have committed an offence before, yes, your information will remain in our system.
If you have someone who shared a story like that with you, senator, I would suggest the next time they present themselves at the airport they ask to talk to a CBSA manager. Sometimes we feel that those situations are best resolved by speaking to a manager and trying to get to the bottom of why the person is being referred.
Senator Oh: Very good. Thank you.
[Translation]
Senator Boisvenu: My question is for one of our two witnesses. We know that this information will allow Americans to target Canadians who are in an illegal situation with regard to their length of stay. You cannot reside in the United States for more than a certain number of days. Americans will now have access to this information. When you stay in the United States for an illegal period of time, you are banned for life.
We know that there are between 4,000 and 6,000 Canadians who spend the winter in the southern United States. Do you know how many of these Canadians could receive this travel ban as a result of this information that will now be available to Americans?
Mr. Daigle: I’ll redirect the issue of managing entries and exits to my colleague from CBSA.
Mr. Bolduc: Thank you for your question, senator. There are two things that need to be clarified. As far as air travel is concerned, Americans already collect information on entry and exit. So they don’t necessarily need to receive information from Canada Border Services Agency, since they already have it.
Second, individuals travelling abroad are responsible for learning about the laws and regulations of the countries they plan to visit.
With regard to the specifics for the United States, if you go to the Global Affairs Canada site and search for “U.S. Embassies,” you will find some information that helps people to make decisions.
As you have demonstrated, the 183-day period is in the public domain. It is therefore the responsibility of people to comply with their tourist visa, which is essentially valid for six months.
Senator Boisvenu: Right now, we agree that many people travel by road. We’re seeing many RVs on the roads these days. This information wasn’t available before, but it will be now. It isn’t people who travel by air that worries me, but those who travel by road where information is available in one way only.
Do we have an idea of the number of travellers who are in an illegal situation and who risk being arrested?
This brings me back to the question I asked the minister earlier, whether he was in favour of having a communication campaign. Unfortunately, communication campaigns often come too late, once the legislation has been adopted, while it should be conducted before the legislation is adopted.
Mr. Bolduc: You’re right. When the bill receives royal assent, it will already be in force. So we will have the opportunity to share information on Canadians because we are already sharing information with the Americans on permanent residents, foreigners and American citizens. This information is already shared, but the bill will give us the authority to share information about Canadians.
The Americans can make export controls. Today, if they were targeting a clientele, they could establish exit controls, when RVs return.
Senator Boisvenu: So it’s not clear how many Canadians could be the subject of this research.
Mr. Bolduc: We do not have that information. I cannot speak for the U.S. government, but our colleagues’ priority, like ours, is the security of their country at the border.
Senator Boisvenu: Will the same type of agreement also be reached with Mexico?
Mr. Bolduc: For the time being, this bill deals only with the systematic exchange of information with the U.S.
Senator Boisvenu: Many Quebecers and Canadians travel in two stages. They start their stay in the United States, go to Mexico for a while and come back. Will their stay in Mexico be fully counted, in compliance with Canadian laws?
Mr. Bolduc: When we exchange information with the Americans, the entry into the U.S. will be recorded. We’re going to have an exit from Canada, so it’s a three-way itinerary. We are able to harmonize our records. Since the information document contains the date and place, we’ll know the place of exit and return to the United States.
Senator Boisvenu: As we saw in the case of the legalization of marijuana, we were not ready in terms of equipment and training. As a result, police officers have problems with roadside checks when people are driving while impaired.
In terms of information exchange, computer systems and staff training, have we ensured that we have the necessary equipment and that the equipment is compatible with that of the U.S.? We know how sensitive computers are. Will all those problems be solved when the bill is passed?
Mr. Bolduc: Senator, let me assure you that all the systems are already in place. We now exchange information with the U.S. almost in real time.
Airlines already provide this information for flights to Canada. We are already partnering with IRCC for their electronic travel authorization. We can issue the authorization. It is sent from us. Senator, I can assure you that the entire technological infrastructure is in place and we are working with the airlines to avoid imposing additional costs on them for no good reason. This is truly a partnership.
[English]
Senator Richards: Thanks for coming. I want to touch on marijuana legalization at the border and the federal statute against marijuana in the United States, even though some of the states have legalized it.
If you collected that data on a Canadian and gave it to the States, they could be banned for life from the United States because they’ve operated within a jurisdiction that allows marijuana or they’ve sold it or whatever they’ve done.
What they say to you in Canada is legal, but if the data is shared across the border they might not get to be a snowbird ever again or anything else. Is there any way around that? How do we get around that?
Mr. Bolduc: I have a few important elements. The importation and exportation of cannabis is still illegal in Canada. You cannot cross the border with cannabis.
Senator Richards: I am aware of that, sir.
Mr. Bolduc: The exchange of information with the U.S. that is being contemplated under Bill C-21 is really basic tombstone information. It is not sharing your criminal record. It is not a systematic sharing of personal address, e-mail, and so on and so forth. As the minister mentioned, it is only the information that is contained on page 2 of your passport: a date and a location. That’s it.
If you enjoy cannabis on the weekend at home, that information won’t be made available to CBSA. Nor will that information be systematically shared with the U.S.
Senator Richards: I have a follow up. What about pre-clearance? If you are going through pre-clearance in Winnipeg or wherever and they ask that question, what does a person who takes cannabis do? They may have planned a lifetime trip L.A. with their kids.
This does become a sticking point, and I am just wondering about that.
Mr. Bolduc: I agree with you, but as a guy in uniform the only advice that I can give you is that I would tell the truth to a border official. I would not lie about anything.
It is still illegal to cross the border. It is still illegal federally in the U.S. People have to base their decisions on that, and act accordingly.
Senator McIntyre: I have a simple question of clarification. I draw your attention to clause 2 of the bill which would give power to collect information in subsection 92(1) of the Customs Act. As we know, these powers would not be mandatory but discretionary. In other words, CBSA could collect this information if it wishes to do so, but it would not be required to do so.
How useful would the Entry/Exit Initiative be if the collection of information is not mandatory? Why is the proposed power discretionary?
Mr. Lawrence: In section 92 the agency may collect from prescribed sources the exit information. That is because it works in tandem with section 93, which is the authority to compel an operator of a commercial conveyance to send exit information to the organization for the first reason.
Where we can enter into an agreement, like with the United States Customs and Border Protection to collect information at the land border, we may do so. We may do so if that information is biographic in nature, so back to page 2 of the passport. That is what this section authorizes.
Section 93 is used to compel commercial air carriers to submit outbound flight manifests. Highway crossings at the land border and commercial air carriers will account for upward of 98 per cent of travel to and from Canada. Using section 92 or 93, we can then tailor solutions for marine, pleasure craft and non-commercial flights going forward.
[Translation]
Senator Dagenais: We hear that the bill does not contain all the elements needed for the information gathering process. Some elements may be missing, but they could be defined by regulations. Could we have a copy of the regulations on information gathering? This would be useful in our study. I suppose it is possible to obtain a copy of those regulations.
[English]
Mr. Lawrence: The bill lays out the information in sections 92 and 93. What is left to regulation is the timing, the manner and the circumstances surrounding the collection of that information or the submission of that information to the agency.
There are no other data elements to be prescribed in regulation with respect to Bill C-21.
[Translation]
Senator Dagenais: Perhaps I was misinformed, but according to the representative from the Customs and Immigration Union, some elements are not part of the information gathering process. The presence or absence of those elements could be defined by regulations. I would have liked to have a copy of the regulations.
Mr. Bolduc: We will share them when we prepublish. The information that will be legislated, that is, the information that the CBSA will obtain, is the information on page 2 with a date and place. There is no other information.
Why was the statement written like that? As my colleague mentioned, this makes it possible to adapt it to each mode of transportation. There is also the rail. You can take an Amtrak train from New York to Montreal. The idea is also to have a custom-made approach so that we can tell the airlines: once you capture the information, which must be sent to us, you will start sending it to us, 48, 36 or 24 hours before the passenger’s departure.
The statements were written like that to give us the flexibility and ability to do our job without causing delays when flights are leaving. As you know, that’s not pleasant.
Senator Dagenais: Yes. Thank you very much.
[English]
The Chair: I want to thank the panellists for joining us today and answering our questions.
Honourable senators, for our third panel today we are happy to welcome from the Canadian Civil Liberties Association, Brenda McPhail, Director, Privacy, Technology & Surveillance Project, coming to us by video conference; as an individual, Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa; and on behalf of the International Civil Liberties Monitoring Group, Tim McSorley, National Coordinator.
We welcome all of you. Ms. McPhail, we will begin with you because we never know when we might lose a video conference. You have the floor.
Brenda McPhail, Director, Privacy, Technology & Surveillance Project, Canadian Civil Liberties Association: Thank you very much for inviting the Canadian Civil Liberties Association today to speak to Bill C-21. This bill allows the implementation of the final phase of the 2011 Canada-U.S. Beyond the Border agreement to exchange basic biographic entry/exit information on Canadian citizens.
Conversations about this bill are being framed with the statement that other countries, including our intelligence allies, already collect this information, and that we need to catch up with the rest of the world. CCLA feels it is important to observe that pre-9/11 it was uncommon for democratic countries to collect exit information on their own citizens. We see it as a Canadian strength that Canada has moved cautiously in this regard. We approach this bill with an acknowledgement that while there may be a public policy reasons for pursuing it, it permits new tracking of our mobility and is part of an ongoing change in state/citizenship relationships that are occurring in a big data world.
I will focus primarily on the need to ensure explicit privacy protections for information sharing between the CBP and the CBSA and between the CBSA and other federal government departments. I will then make two brief points regarding our concern that critical details about information collection are currently left to regulation and about the need to increase CBSA accountability.
When it comes to information sharing, we’re told the biographical information collected is simply the information on page 2 of our passports. However, it is helpful to keep in mind when we talk about privacy protection that this information will rarely be looked at in isolation. It will inevitably be assessed in conjunction with other information that is already held by various federal departments and by intelligence and law enforcement agencies on both sides of the border.
In other words, privacy concerns go beyond the relatively small amount of new information being collected and the extent of the possibilities of that information to be combined with other details and used in unanticipated ways.
Also relevant is the fact that this information is explicitly not being collected only for national security purposes, but also for the purpose of verifying residency for benefit eligibility for Canadians.
We have to remain aware of the potential human consequence of errors or misuse and make sure that providing this information contributes rather than detracts from the integrity of our benefit programs.
When the Beyond the Border agreement was first signed, CCLA and international partners developed a series of core legal principles for consideration. I want to highlight two of those today.
First, information collection, sharing, use, dissemination and storage practices should be subject to independent oversight, review and accountability.
Second, when the laws of two countries differ in terms of the protections they provide, the highest standard should prevail.
This is especially important because since the Beyond the Border agreement was signed there has been a significant change in the degree of privacy protection that Canadians can expect for personal information held in the United States.
Since President Trump signed executive order No. 13,768 in January 2017, the personal information of Canadians is no longer protected as it once was by the U.S. Privacy Act.
To ensure necessary accountability, we recommend that mandatory independent oversight and review of information sharing should be provided by the Privacy Commissioner of Canada. He has recommended previously that his office be engaged with government departments during the development of information-sharing agreements to ensure the right safeguards are in place.
We would go further and suggest that the creation and review of such agreements by the OPC be made into a legal requirement and that such an agreement should be made public to the extent reasonably possible.
Privacy impact assessments are another accountability mechanism. We understand it is already agreed that they will be conducted and reviewed by the Privacy Commissioner. We further recommend that those summaries be made publicly available prior to data collection commencing.
As a way of highlighting the importance of this transparency, I would draw your attention to the executive summary for Phase II of the Privacy Impact Assessment of the Entry/Exit Initiative, which included exchanging information about Canadian permanent residents and third party nationals.
To paraphrase, it says that at all times the disclosure of all personal information exchanged under this initiative will be protected through existing privacy guidelines outlined in the action plan and will be governed by U.S. privacy laws.
Public access to that summary allows us to ask a critical question. Since the guidelines referred to are not legally binding and the state of privacy protections afforded to us by U.S. privacy laws have changed, would that privacy provision be adequate when we implement the next phase of information sharing that is being facilitated by this bill?
It speaks to the second principle I spoke of. The highest legal protection between two countries should apply, which means in CCLA’s opinion that the default legislation governing Canadian information moving forward should be Canadian privacy law.
Finally, as an ongoing means for accountability and transparency, we recommend the bill be amended to include a requirement for CBSA to publicly report annually to Parliament on its provisions and the implications of the information sharing that has taken place.
Bill C-21 leaves the sources, circumstances, time frames and manner of information collection to be prescribed in regulation, which makes for a process that is less public, less transparent and less accountable. Since we’re talking about Charter-protected rights of privacy and mobility, details provide better certainty for Canadians and are best enshrined in law.
Lastly, I understand that Minister Goodale has said this afternoon that the details of a plan for independent oversight of the CBSA are imminent. That is great because in addition to exit data, Bill C-21 introduces new information-sharing provisions for the Employment Insurance Act and the Old Age Security Act and includes new powers to allow the CBSA to question individuals leaving Canada.
We believe it is dangerous to continue expanding powers without creating some sort of independent oversight body. We strongly hope that the committee has a chance to review the details of the new plan prior to moving this bill forward.
Wesley K. Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, as an individual: I thank you for the invitation to appear and testify on Bill C-21, An Act to amend the Customs Act.
I gave testimony on this bill in the other place — I love being able to use that phrase — on October 24, 2017. It is always a pleasure to scrutinize legislation that numbers barely four pages, but it carries with it the price of wondering what might have been left out.
Bill C-21 allows for the statutory extension of entry/exit information acquisition and sharing provisions so as to encompass Canadian citizens. I will not rehearse the context of this legislation, suffice it to say that it represents the final stage of a commitment and planning process that extends back to promises made under the Beyond the Border Action Plan agreed to in 2011 between Canada and the United States.
The final stage of the entry/exit scheme requiring statutory force in Bill C-21 would see the biographical exchange of information, as you’ve heard, on all travellers including Canadian citizens at the Canada-U.S. land border and the collection of biographical exit data on all air travellers, again including Canadian citizens leaving Canada. It should be noted that no image data or biometrics are contemplated to be shared under this scheme.
The backgrounder published by the government when the legislation was introduced in June 2016 indicates that the Entry/Exit Initiative is meant to serve a number of enumerated objectives. It is not specifically a national security tool but could in my view enhance investigations into the movements of suspected threat actors, including terrorists, foreign espionage agents and weapons of mass destruction proliferators. It could also provide a useful investigative supplement to other powers available to security and intelligence agencies. For these reasons, I support the legislation. It closes a data collection gap of long standing.
I believe it would be helpful for Canadians if the objectives of the legislation, as set out in the backgrounder, were actually included as a statement of principles at the outset of the bill to explain the rationale for the new powers it contains.
It is important to note the restrictions the government has said it will put in place in terms of information sharing from the vast pool of data that will be collected under Bill C-21. Land border exit information will inevitably be shared with the United States government because the information is collected in the first place by U.S. CBP agents.
We are assured that exit information from the air mode would not be shared with the United States or presumably any other foreign government. This assurance is not contained in statute, so it would presumably depend on regulations and ministerial direction. Whether this prohibition on sharing exit information in the air mode makes sense or is likely to be maintained seems questionable to me.
Minister Goodale stated previously that the exchange of information, both within Canada and with the U.S., would be subject to formal agreements that would include information management safeguards, privacy protection clauses and mechanisms to address any potential problems. These are important promises, but Canadians may never know the nature or full extent of these formal agreements.
You’ve heard something similar from Ms. McPhail, but for this reason I believe it is important for Bill C-21 to include a commitment to transparency, which would be in line with the government’s promised transparency charter, ideally in the form of an annual report to Parliament and the public on its application efficacy and problems.
This lack of a transparency commitment in the current version of the legislation is compounded by the current absence of any meaningful independent review of CBSA, the core actor that will operationalize Bill C-21. Such review may occur in future through, for example, the newly established National Security and Intelligence Committee of Parliamentarians and through the creation of a national security and intelligence review agency, as promised in Bill C-59. Systemic review of CBSA is a future aspiration, and a gap exists between current and new powers and the rolling out of such a review process capability.
I would also note that the Privacy Commissioner has called on the Canadian government in a letter to ministers dated March 8, 2017, to request that the United States Government add Canada to the list of designated countries under the U.S. Judicial Redress Act of 2015 so as to strengthen privacy protections for Canadian citizens in U.S. jurisdiction.
In the context of the proposed bill, it is also important to know the status of any privacy impact assessment conducted on the final phases of the Entry/Exit Initiative. The legislative summary of Bill C-21, prepared by the Library of Parliament and revised as of October 21, 2018, refers to initial privacy impact assessments for Phase I and Phase II of the initiative only.
I would add in parentheses that the Treasury Board guidelines on privacy impact assessments indicate very clearly that they are meant to be prepared prior to powers being utilized and not months, or often years, after they have begun to be utilized.
In my testimony in the other place on Bill C-21 a year ago, I argued that the legislation should include a retention schedule for data. The current version of the bill at section 93.1 includes a blanket retention schedule of 15 years. In my view this retention schedule is both too long and should be qualified in some manner so that retention beyond a brief period is narrowed to categories of data justified by some clearly specified requirement under the act. This could be retention of data deemed necessary to meet the specified objectives of the legislation.
Bill C-21 should not be allowed to create a vast data swamp untethered to specific and legitimate needs. This is neither in the interests of the agencies involved in the scheme nor in the interests of the privacy rights of Canadians.
To summarize, I would urge the committee to consider the following seven brief points.
First is an amendment to provide for a statement of the objectives of the legislation as a preamble to the legislation.
Second is an amendment to require an annual report to Parliament by the minister on the operation of the entry/exit scheme.
Third is an amendment to section 93.1 to further limit data retention schedules, in line with specified objectives of the legislation.
Fourth is to support the Privacy Commissioner’s recommendation that the Canadian government request the U.S. government to add Canada as a designated country under the U.S. Judicial Redress Act.
Fifth is to encourage the committee to request information on the status of the privacy impact assessment for the final phases of the Entry/Exit Initiative, which may shortly become law.
Sixth is to encourage the government to ensure that CBSA is front and centre as a focus of attention for the new review system that is being put in place, whatever that might look like, specifically for CBSA.
Seventh is to encourage the government to reach a decision on how to construct an independent review mechanism for public complaints directed at the CBSA.
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group: I represent the 45 member organizations of the International Civil Liberties Monitoring Group coalition. It is always a pleasure to present our concerns to your committee.
While we recognize the three overarching reasons for Bill C-21 are national security, law enforcement and social policies, I will focus today on national security as that is our mandate as a coalition.
Over the past 15 years, the ICLMG has been critical of proposals that further integrate Canadian border security with United States border security, which has been a near constant project since September 11, 2001. In particular, we have paid attention to the impact that increasing border security can have on the rights and freedoms of Canadians, including around privacy rights, the right to movement and freedom of expression.
While we are not opposed to cooperation on security, we believe that such intensive security harmonization undermines Canada’s ability to set security policies according to the priorities and concerns of Canadians, and to adequately protect Canadian civil liberties as set out by the Charter of Rights and Freedoms.
These concerns have not been unfounded, as we have seen instances of security and border agreements that either follow the lead of United States or are negotiated with little public input or debate.
The bill must also be considered in the context of Canada’s ever-growing information collecting and sharing regimes, both domestically and internationally. The Canadian government now collects more and more data on its residents and participates in unprecedented international intelligence-sharing partnerships such as the Five Eyes alliance. Such expansion gives rise to greater concerns over privacy protections and a chill on other rights at a minimum.
Bill C-21 may at first glance appear straightforward, but the issues involved become more complex when examined in the context of increasing surveillance, data retention and sharing, and the use of this data to analyze and identify security threats. The government has stated that the data to be collected will consist of the information on the second page of our passports, as well as the information collected in terms of when somebody is leaving the country: the date and the location of leaving the country.
This kind of data tying a person to their movement across borders can paint a very specific and revealing portrait, especially if and when it is combined with other information collected by government agencies, including employment records, health records, government benefits, et cetera.
While we must not be alarmist, it is important to point out that the information collected is potentially significant, necessitating strong safeguards and clear regulations on its collection, sharing or disclosure, retention and eventual use.
Clear delineations on the use and/or sharing of the exit data collected would be important to prevent national security overreach. The Canadian government regularly engages in data sharing between departments, including with national security agencies. While the government assures us that there are clear rules in place, there is reason to be concerned about the sharing of Canadians’ private information for purposes unbeknownst to the traveller.
For example, we are concerned this type of data could be added in bulk to CSIS data sets created with Bill C-59, creating a massive archive of the travels of Canadians who are not threat subjects of national security investigations.
This also raises questions under the Security of Canada Information Sharing Act, proposed to be changed to the security of Canada information disclosure act, which introduced a broad new definition of acts that undermine the security of Canada. A person could see their information shared by the CBSA with CSIS, the RCMP or other agencies without having been suspected of or even having committed a crime.
I would like to share a timely example. In recent years we have seen cases of both CSIS and the RCMP surveilling and even developing profiles on peaceful protesters. Many of these people are engaged in issues that cross national borders. They may even travel for protests, thinking of those who may have joined protests at Standing Rock or even the Women’s March on Washington. The mass collection of travel information would easily allow for a new data point to be added to these profiles, which we must remember have been criticized and discontinued when brought to light.
The Canadian government also shares intelligence with other jurisdictions. We are concerned that the travel information of Canadians will be shared with foreign intelligence agencies that can then use the information as they wish, despite attempts to seek assurances. Such information sharing is at the heart of the cases of people like Mr. Maher Arar and Messrs. El-Maati, Almalki and Nureddin, who all suffered unjust treatment and torture abroad.
Finally, we have not seen clear evidence or statistics from the government showing that there are growing security risks that would necessitate this kind of increase in en masse data collection. We believe the best solution would be not to collect the data of travellers en masse, since restrictions in Bill C-21 could be negated by powers granted in other legislation.
I would like to say that Professor Wark’s proposal about a stricter limit on the retention of that information to avoid this mass accumulation and restriction on the retention period is something that could help to address those concerns.
Barring that, we would be opposed to the provisions of Bill C-21 that would lead to the default collection of all travellers’ information by the CBSA, but we agree that actions can be taken to mitigate those risks.
First would be a clause clearly detailing under what circumstances and for what purposes the information collected by the CBSA will be shared with security agencies, domestic and foreign.
Second, we were glad to see a limit on the retention period for travellers’ data was put in place in the other place. However, as has been mentioned, 15 years remains too long a limit. I also wish to point out that at the time an official from the Office of the Privacy Commissioner said that they had agreed to the 15-year limit but remained unclear as to why that was necessary. At a minimum, we would like to see more information on that, and ideally we would like to see that restricted.
Third, although it was mentioned earlier that Canadians can request their travel information from CBSA, we believe a clearer system should be put in place for both the request of that information and for correction of any inaccuracies.
Fourth, as has been mentioned and as Minister Goodale brought up earlier, we believe it is important that an independent and specific review body be established for the CBSA. We’ve heard promises in the past. We hope, as Minister Goodale mentioned, that it will be coming in the next few weeks. We look forward to reviewing that legislation as it is introduced. Until that happens, we need to ensure that strict regulations are put in place, specifically around this information collection and sharing.
We understand that the collection of exit data is being debated internationally and becoming the norm in the international community. However, we believe that Canada can also lead by example by acting to protect travellers’ rights.
Thank you, and I would appreciate answering any of your questions.
The Chair: We will start with questions, beginning with Senator Dagenais.
[Translation]
Senator Dagenais: My thanks to our guests. My first question is for Ms. McPhail. When Minister Goodale says that the amount of information that will be collected is minimal and has no impact on privacy rights, how do you respond to that, and where are the real dangers?
[English]
Ms. McPhail: Thank you for that question. It is true that the amount of new information is relatively small because the biographical information is in fact the same information as on page 2 of the passport. The new information really is the exit and the entry information.
However, as I said in my statement, it is not that anybody is ever going to only look at that information all by itself. The purpose of this is explicitly so that the information can be added to other information held by the police if they’re interested in pursuing a suspect, or for either old-age security, employment insurance or immigration and refugee officials to combine with other information they already have about individuals either to verify what they’ve been told or to add to create a more complete picture.
When you’re looking at privacy protections, it is not that there are only one or two additional data fields that somebody will have access to. It is really a concern about how many people will have access to those extra data fields and what will be the impact of combining them with the large amounts of information we already know are collected.
[Translation]
Senator Dagenais: Thank you, Ms. McPhail. My second question is for Mr. Wark.
Mr. Wark, we know that security has been an important issue in recent years and that governments have been exchanging information to fight terrorism, among other things. Can you tell us whether, in addition to Bill C-21, there are other tools available to obtain information to oversee entry and exit in Canada?
[English]
Mr. Wark: Thank you for the question, senator. There are parallel provisions in what is called SATA, the Secure Air Travel Act previously enacted in Bill C-51, the Conservative government’s anti-terrorism legislation. It is more narrowly focused on individuals suspected of engaging in terrorism or other threats of national security, but it does create a capacity on the part of the government to track and retain information about such suspected individuals.
Certainly there are some powers already in the government tool kit, as well as the ability of intelligence and law enforcement agencies under lawful mandates to share information. Some of this is in place.
I think the common understanding of the Entry/Exit Initiative is that it is closing a gap around Canada and U.S. cooperation on tracking cross-border movement of people and goods. It adds this additional capacity to follow the movement of Canadians who exit Canada in the air mode.
From my perspective, although it is difficult because we haven’t had these powers to point to the ways in which they might be beneficial, it seems to me it is at least possible to posit the notion that on certain occasions it would be beneficial to have that information.
[Translation]
Senator Dagenais: My question is for Mr. McSorley. You referred to Bill C-59, which already grants powers to security agencies. Would you say that Bill C-21 goes too far in seeking information on access to the privacy of Canadians?
[English]
Mr. McSorley: Our concern would be that once these powers are brought in with Bill C-59, the information collected under Bill C-21 would then become part of that information collection.
There are two sides to it. One is questioning whether or not the information should be collected in the first place. Then, in Bill C-59, we believe that we need to go further in making sure there are restrictions on how that information could then be collected by Bill C-21 if it is in a CBSA databank or being collected through and shared with other agencies.
[Translation]
Senator Dagenais: You heard the testimony of the Minister of Public Safety who said that there is very little information about Canadians, except perhaps what is in their passports. Is the minister’s statement credible or do you think this information could be found, for example, in the Canada Pension Plan or the Canada Revenue Agency?
Although the Canada Revenue Agency does not necessarily communicate with Revenu Québec, do you think Bill C-21 creates a breach in access to Canadians’ information?
[English]
Mr. McSorley: I do not think it would go so far as breaking or causing a new loophole in the access to information. Along with what Ms. McPhail was saying, I would say that even though it is a small amount of new information being collected, it can be very important when taken in conjunction with other information that is already being collected.
I wouldn’t say that it creates a new problem regarding the CRA, but we have to be very careful about how this new information will be collected. Our concern is always when new information is collected en masse and then being decided on afterward.
Our preference is to side with the ability to collect information in a targeted way. If it means collecting a lot of information, then in the retention and destruction of that information it is very clear that it must be done in a targeted way. This would ensure that the information isn’t being held on to just because it might be useful in the future or it could be used for other purposes than what it was originally intended for.
[Translation]
Senator Dagenais: Would you agree that the collection of information should be reviewed every five years?
[English]
Mr. McSorley: You asked that question earlier of Minister Goodale. He pointed to the review of national security agencies.
I would agree, specifically regarding the entry/exit program, that having a review after five years is a good idea. It is not currently included specifically in the review of Bill C-59 or Bill C-22, so I would agree that it be enacted there.
If a review agency is brought in for CBSA, they could be tasked with doing that, and we wouldn’t need a separate committee. However, as we know, we don’t have that review of CBSA at this point.
Senator McPhedran: I want to note that when Bill C-23 finally went through, we ended up with a five-year review provision that we don’t have in Bill C-21.
I was very interested in the testimony of all three of you. I am going to ask a question that I hope each of you will feel welcome to respond to. It is a question of what kind of chilling of rights is potentially at risk here. I am going back to my question to the minister earlier this afternoon about the consultation around the regulations, given the range of concerns raised with us.
Thank you, Professor Wark, for the specific list of amendments. I think that is very helpful. If you were to design the consultation on regulations, what would you see as essential components for the involvement of individuals and organizations like yourself in the consultation around regulations in this bill?
Mr. Wark: Let me send a slight note of skepticism about consultation around regulations.
This is not necessarily anybody’s design, but in my experience consultation around regulations tends to be narrowly focused and technical in nature, whether it has to do with legislation or any other aspect of government practice. It shouldn’t be equated with a public consultation in general on the strategic principles or dangers of any piece of legislation. I keep those separate.
I will just come back to a point partly to address earlier questions about a five-year review. Five-year reviews are well and good. They often stretch into six-year or seven-year reviews in practice, as members of this committee may well know. This is why I think it is more important, frankly, to have an annual report that committees of Parliament can dig into, rather than waiting for five, six or seven years to learn something that may be disagreeable about a piece of legislation.
If there was to be a priority put on a five-year review or an annual report, I think the priority should be on an annual report, from my perspective.
To come to your point on the chill factor, it is difficult to pin this down in this legislation. We might all make reference to the broad sweep of national security legislation that has come into being in Canada since the original Anti-terrorism Act, 2001. I do not see any particular demonstrable chill with this piece of legislation or a demonstrable impact in terms of how this information might be accumulated with other pieces of information available in the broader security intelligence community.
As Minister Goodale point out, I think an important point, which presumably the committee will take up when Bill C-59 arrives on your desk with a thump, as it is a big piece of legislation, is to have a look specifically at the Security of Canada Information Sharing Act, as it is called, that tries to control and specify the nature of information shared. Sensitive information shared, is a vital piece of the picture.
Mr. McSorley: I would agree with Professor Wark in regard to the consultation around regulations. It is not something that is open. I think it would take a lot of work to convince the government to have a series of open public consultations where they might invite people to sit down and engage in discussion.
There was reference to that having already happened on Bill C-21. I would be interested to know more about the outcome of those consultations. We weren’t particularly aware of them. That is not to say that others weren’t and didn’t participate, but it might be interesting for members of the committee to get more information on what those public consultations entailed and what the results were.
I think what will be of particular importance as this bill goes through are those questions around retention periods and the idea of schedules for retentions for different departments.
I like Professor Wark’s data swamp term. I think that accurately reflects our concern. When the regulations come up, that might be something that ideally would be part of the bill. If there are regulations coming in that would establish greater clarity around those retention schedules, it would be helpful.
Around the question of chill, and perhaps Brenda McPhail spoke on this, we have heard anecdotally from others that CCLA has looked into questions of how national security legislation creates a chill on activists and people willing to speak out.
Again, we agree that it is not a groundbreaking bill. The information being collected is limited, but we’re concerned about how it adds up in terms of the other information being collected. It is one more step in the mass collection of data. That could give people pause when they are thinking about what information the government knows about them and how it could impact their movement rights or free expression rights.
Ms. McPhail: I’ll go straight to the question about chill since Tim McSorley has led into it for me. There are two aspects to that we would be concerned about.
First, as he mentioned, we have done qualitative research with activists engaged in political protest and political activity who have expressed concern about the increase in surveillance that they are feeling from national security organizations in particular.
I am not sure the exit/entry information covered by this bill would act to particularly increase that concern. It is a valid issue to understand the more people feel their willingness to potentially dissent from a government position because it will attract security intelligence attention, the less likely they are to engage in a sustained way.
We have had parents say: “I would do this when I was young, but I am scared to do it now because I don’t want this to affect my children or my spouse.” We need to be concerned in general about that kind of chill because the ability to debate controversial political topics is obviously vital to democracy.
Another aspect I would be concerned about in relation to the chilling of rights is in relation to the use of this information around benefit eligibility for Canadians. At the moment we have a regime which is trust but verify on behalf of our organizations. Canadians tell them their information. Then, if any concerns are raised, there is a process whereby the veracity of that information is checked.
With the addition of this kind of information, I am concerned we move to a system is more like: Does what you tell me match your data? As we move toward more automated systems for decision making in relation to benefits, I would hope that the data would not become the be-all and end-all and that there would be the critical redress options for people if they want to dispute the accuracy of the data.
Senator McPhedran: I have two points of clarification. First, am I correct in understanding that you as witnesses would be content with a potential amendment to Bill C-59 that brought in the annual reporting and made specific reference to reporting back on the Bill C-21 data, or did I not understand that correctly?
Mr. Wark: I will tackle that one briefly. There are a number of provisions in Bill C-59, as you know or will discover, with regard to annual reports from different elements of the Canadian security intelligence community.
CBSA in general could be added as an element of that community and may well be, but what would be important would be a specific report on entry/exit. It doesn’t need to be a big report. It could be kind of snapshots of how well the scheme is working, of any problems and of any new developments.
Senator McPhedran: Is there anything more to add from others?
Mr. McSorley: To add to that, the three of us have spoken about national security. The importance of it being specifically for this is that any review done through Bill C-59 or the NSIRA would be limited to national security concerns.
To capture concerns that might exist around any other kind of social benefit, it would be important that it is not in Bill C-59 and, rather, is part of Bill C-21, I believe.
Senator McPhedran: The second point of clarification I wanted to raise was in relation to the scenario that Ms. McPhail and Mr. McSorley described around genuine acceptable dissent or questioning by, you used the term, “activists”. I would say we could equally use the term “citizens of Canada.”
My clarification is whether you had in mind a situation where Canadians were telling the truth when answering questions as they were crossing into the United States. They were going to a meeting. They were going to this; they were going to that.
If it turns out that they ended up in Washington at one of the marches in question, somehow that gets added in to being seen as a discrepancy between what they told the officer at the point of entering into the U.S.A. and what else they may have done in good faith. They were not meaning to withhold, but it becomes known that they didn’t articulate that.
Is that too detailed a scenario for what you had in mind, or does that fit within some of your concerns?
Ms. McPhail: That would be a concern, of course. The information that is going to be shared specifically under this bill, in my understanding, would not include the notes that are taken by a border agent regarding intention for travel. That may not arise under this bill, but it is naive to think that those notes aren’t shared in other ways through other systems under other authorities.
That is a long way of saying that it is not an unreasonable concern, the scenario that you mentioned.
Senator McIntyre: Mr. Wark, one amendment was proposed by the committee of the house to clause 2 involving the collection of information about persons and goods under section 92 and information given to the Canada Border Services Agency under section 93 being retained for 15 years beginning on the day on which the information is collected.
Is 15 a reasonable number?
Mr. Wark: I recall a conversation in which this issue came up in the other place in parliamentary committee discussions on Bill C-21. My impression is that people understood the need for a retention schedule. That was progress, because there was no retention schedule in the original version of the bill.
My speculation, and it is only that, is that 15 years was a number pulled out of somebody’s hat. To me, it makes no sense. It is far too long a period of time. Not only is it too long a period of time, but it suggests that all information collected under the Bill C-21 scheme will be held for that 15-year period.
My suggestion to the committee, if it is looking at an amendment with regard to a retention schedule, is twofold. First, it should perhaps satisfy itself about a shorter retention schedule overall. Second, it should link that retention schedule to the specified objectives of the legislation: Why does this information need to be retained for any period of time at all?
If we look at the SATA, the period of time in which information under that more narrow provision can be kept under the legislation is seven days. Here we are proposing 15 years. I don’t understand that, to be honest.
Senator McIntyre: In your Recommendation No. 7 you call for an independent review mechanism. Could you elaborate a bit on that, please?
Mr. Wark: Sure. Very briefly, there have long been discussions about the need for some independent civilian capacity to adjudicate complaints by members of the public to CBSA.
At the moment the system is that CBSA has an internal process for receiving and adjudicating complaints, but it is not subject to any external complaints body along the lines of the things we have established for the RCMP in the Civilian Review and Complaints Commission, for CSIS with regard to the Security Intelligence Review Committee, and indeed for CSE.
My proposal depends on what the government is intending with regard to so-called oversight for CBSA. That oversight may deal with policy. It is also important to have a mechanism for dealing with complaints, particularly once Bill C-21 becomes law and more data is being collected and new powers are being provided to CBSA officers to question people as they leave and enter Canada.
Senator McIntyre: Thank you.
[Translation]
Senator Boisvenu: Thank you to our guests. Mr. McSorley, if I understood you correctly, you said that there seems to be a new definition of access to information. Is that what you said?
[English]
Mr. McSorley: I am not sure what I said, but that isn’t our concern. We don’t believe there is a new definition to access to information under Bill C-21. We are concerned about how that information could then be used if it is kept en masse under the Security of Canada Information Sharing Act.
Our understanding is that this doesn’t change the rules around access to information legislation.
[Translation]
Senator Boisvenu: I misunderstood, I’m sorry.
Ms. McPhail, when the government introduces bills, the government has undertaken to also table statements demonstrating that the bills comply with the Canadian Charter of Rights and Freedoms. It hasn’t done so in this case. Do you know why?
[English]
Ms. McPhail: I apologize. The translation did not kick in, and my capacity to understand your question is appallingly poor. I am very sorry. May I have the translation for that, please?
[Translation]
Senator Boisvenu: Yes, I will resume. When the government introduces bills, it has undertaken to table statements related to the Canadian Charter of Rights and Freedoms that demonstrate that the bill complies with the charter. It has not done so for this bill. Does that surprise you? How do you explain that?
[English]
Ms. McPhail: It surprises me. More pointedly, it concerns me. If that commitment has been made, as it was, to ensure that all legislation is Charter compliant, then there is absolutely no reason why this bill shouldn’t include a Charter statement.
In fact, it does implicate Charter-protected rights of privacy and mobility, so the lack of that statement is problematic.
[Translation]
Senator Boisvenu: Mr. Wark, one of the dangers of this bill is the possible extension of information sharing. As part of the bill, the minister took the opportunity to amend the scope of the bill by regulation rather than through Parliament. Does it concern you that the minister has this power without members of Parliament or senators being able to check that an amendment to the legislation is acceptable?
[English]
Mr. Wark: Thank you, senator. It is in the democratic interest of Canadians that legislation is as clear and full as possible in terms of its implications. Regulations are meant to be a form of implementation of what is contained in the legislation.
As I heard it, Minister Goodale’s suggested in his testimony, and perhaps his officials as well, that regulations would technically be implementation. Having entered into a full-scale entry/exit regime, it is safe to predict that it will change over time.
Eventually we will have to add biometric data into this scheme. I suspect we will find ourselves sharing exit information with other countries, including the United States and allies. I cannot see that we will simply not do this if the scheme is to have some value in terms of public safety.
That makes it all the more important for parliamentary committees to have a capacity to scrutinize not just the original legislation, not just technical implementation through regulation, but how the legislation is actually being used.
I apologize if this is a bit repetitive, but I come back to the point of requiring, hopefully, an annual report where CBSA or the minister is required to provide some substantive information about how the legislation is being used.
Senator Richards: My question is for Mr. McSorley. We met briefly today. This question is broad, as were my questions of you in the office were broad. I know that there can’t be any single answer. It’s just what worries me.
As an upshot to this, I am all for privacy. The more privacy we have, the better, and the less we’re doing wrong, the less we should be bothered.
Much of this deals with our connection back and forth with United States. How do we negotiate a limitation on information with the United States? Their collecting of information ability is probably superior to ours. If they want to get this information, they will get this information. I think you probably know that.
I am wondering if the rules we apply to ourselves will matter in the long run. That is my question when we’re crossing borders with people in Maine or people in Oregon.
No matter how much we assure ourselves of our own limitations, we are still dealing with a powerful country to the south of us. I am wondering if in the long run this will really matter. It matters to ourselves, but will it matter internationally?
Mr. McSorley: That is a very important question.
I agree we have limited control over what the United States will or will not do with the information it collects and what information it will be collecting. We can’t necessarily address it right now in Bill C-21 when the government is negotiating agreements like the Beyond the Border Action Plan.
Previously ICMG appeared here to discuss Bill C-23. There was some discussion that the government’s hands were tied on certain issues regarding what was already negotiated in the pre-clearance agreement with the United States.
Fundamentally, we need greater clarity, public involvement and public debate of these agreements before they are put in place and before there is an announcement that they have already agreed to new action plans and pre-clearance agreements.
It is a problem we have raised on these types of agreements at the border and on international agreements, generally. If we could get better clarity, better public input and better public debate on those agreements before we are told it is a fait accompli, we would have more power than what we see in this legislation over what kinds of agreements and decisions are made regarding how we share information with the United States and vice versa.
Senator Richards: The problem I see is that it is their sovereign territory. Do you understand my conflict about this? As much as we negotiate, in the end it is still their federal legislation and not ours. That is what I am trying to get at.
Mr. McSorley: I definitely agree with you, Senator Richards. It is more that in those agreements we can better understand, better give input and make better decisions on how Canada uses that information.
The U.S. has power over what they collect when travellers enter their country, but our power as Canadians is to have access to agreements that dictate how the government will then use that information here.
If we’re told that we have agreed to mutually do the same as the United States after an agreement is signed without input beforehand, then our hands are tied here regardless of what the United States is doing.
Senator Griffin: I have a short question for Ms. McPhail. The obligation to be truthful under section 94 is what I am getting at. In the previous panel I asked an official from the department what happens if someone refuses to answer.
His answer was that a refusal to answer would be an offence. I would like a comment from you on how this would interact with the Charter.
Ms. McPhail: It is a source of concern to us that this bill increases the ability to the CBSA officer to ask questions of someone on exit in addition to on entrance to Canada and creates, as you mentioned, of the new offence if they fail to answer questions on exit.
The question of the Charter at the border is a complicated one because we have all agreed, and I use the word “we” broadly here, that the border is a special zone because it is an area where security concerns are sufficiently heightened. As a consequence, there is a lesser expectation of things like privacy.
It would be very helpful for this committee to examine whether or not the ability for an officer to prevent someone from leaving Canada if they fail to answer a question is an appropriate power, or whether that questioning power should be less discretionary and more limited to what one might suppose would be one of the main purposes for allowing it in conjunction with the new provisions to prevent smuggling of goods out of Canada.
We might want to limit the questioning, if that is possible within the intent of this bill. We would certainly support that limiting.
The Chair: Thank you to all our panellists for joining us today on the deliberations around Bill C-21. It is very much appreciated.
(The committee continued in camera.)