Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 18 - Evidence - Meeting of December 4, 2017
OTTAWA, Monday, December 4, 2017
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, met this day at 1:05 p.m. to give consideration to the bill.
Senator Jean-Guy Dagenais (Deputy Chair) in the chair.
[English]
The Deputy Chair (Senator Dagenais): Before the presentation, I would like to give a few minutes to my colleagues to introduce themselves.
[Translation]
We will start on my left with Senator Richards.
[English]
Senator Richards: David Richards from New Brunswick.
[Translation]
Senator Boisvenu: Senator Pierre-Hughes Boisvenu from Quebec.
[English]
Senator Griffin: Diane Griffin, Prince Edward Island.
[Translation]
The Deputy Chair (Senator Dagenais): Welcome to this meeting of the Standing Senate Committee on National Security and Defence. I will introduce myself. I am Senator Jean-Guy Dagenais from Quebec. Today, we have four hours to study Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States.
I would like to take the opportunity to welcome our first panel: Daniel Therrien, Privacy Commissioner, Patricia Kosseim, Senior General Counsel and Director General, and Rebecca Shepherd, Legal Counsel. You may go ahead, Mr. Therrien. Obviously, the shorter your presentation is, the more time the senators will have to ask questions.
Daniel Therrien, Privacy Commissioner, Office of the Privacy Commissioner of Canada: I would like to thank the deputy chair and the honourable members of the committee for the invitation to appear before you today on Bill C-23. My remarks should indeed be brief.
As I have emphasized in the course of other parliamentary studies, privacy rights must be considered in the context in which they are applied. In the specific case of preclearance, trade and security are vital issues for Canada-U.S. border policy, and we need smart controls at borders for people, goods and data.
But this does not mean that privacy should be set aside when at the border. Bill C-23 authorizes U.S. officers to conduct preclearance activities including searches at preclearance facilities on Canadian soil.
Under this bill, Canadians and other persons seeking to enter the U.S. from Canada through preclearance facilities would be subject to searches of electronic devices without legal grounds.
This is not different from existing Canadian law that allows CBSA officers, without any grounds, to search goods carried by individuals seeking to enter Canada. However, it is significantly different from CBSA policy that requires specific grounds for search of electronic devices in particular, namely that “evidence of contraventions may be found on the digital device or media.”
For reasons I will explain, I believe this more nuanced policy should be elevated to a rule of law.
[English]
The idea that electronic devices should be considered as mere goods and, therefore, subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. While the law generally affords greater latitude to state authorities to conduct searches at the border to enforce sovereignty and territorial integrity and to regulate immigration, the Supreme Court of Canada has also found, in many contexts, that search of electronic devices is extremely intrusive. Therefore, while the law is not yet settled, I think it is clear that Canadian courts would find groundless searches of electronic devices to be unconstitutional, even at the border. This may explain why CBSA has adopted a nuanced policy in this regard.
Cabinet ministers, including the Prime Minister and the Minister of Public Safety, have sought to reassure Canadians by saying that Canadian law, including the Canadian Charter of Rights and Freedoms, will apply to U.S. officers as they perform their duties and exercise their powers in pre-clearance facilities.
However, the principle of state immunity, as enacted by the State Immunity Act, 1985, would appear to make the protections of clause 11 of Bill C-23 hollow as these protections could not be enforced in a court of law, except in circumstances largely irrelevant to the present discussion.
In an effort to address weaknesses in the remedial provisions of Bill C-23, the bill was amended in the house to provide for administrative redress to the Preclearance Consultative Group as delineated in clause 26.1 of the bill. But these amendments still have important flaws, including that they do not apply to searches of electronic devices.
This leads me to recommend two amendments to Bill C-23. First, amend it so that searches of electronic devices are subject to the same threshold as searches of persons, that is, reasonable grounds to suspect; and second, extend the administrative remedy in clause 26.1 to all activities performed by U.S. officials in pre-clearance facilities, including searches of electronic devices.
With that, Mr. Chair, I will be glad to take your questions.
[Translation]
Senator Boisvenu: First of all, thank you to our panel. Welcome, Mr. Therrien.
Last week, when the minister came to present his bill, I asked him a few questions, and his answers seemed ambiguous to me. I will ask you these questions, and I would like to know what you think.
First, it seems that, under the act, cellphones will be considered entirely ordinary items, like a bottle of water, and that privacy will not necessarily be protected. Do you think this violates the privacy rights of Canadians who will have their cellphones seized?
My second question concerns lawyers, in the case of searches and seizures of cellphones, and the possibility of endangering confidential information of a professional nature. For example, this may be a list of clients, emails related to a lawsuit or the defence of a citizen’s rights. Is the legislation clear enough to protect this type of information and recognize the notion of privacy on a cellphone?
Mr. Therrien: I heard Mr. Goodale’s testimony. He said a number of things that I think are correct. I am less concerned by the minister’s description of the current law than the fact that the current law does not sufficiently take into account the sensitive nature of the data found on electronic devices, including cellphones. The law does not follow the reality of technology.
To put it in perspective, as I said in my opening remarks, the government at the border generally has more leeway to ask questions and conduct searches to protect its territory. In this context, electronic devices, including cellphones, have always been considered goods, what you call ordinary items. It is the rule of law that has existed for decades.
The minister is correct in saying that, in strict law, telephones are goods and that the bilateral agreement with the United States and the bill before you only reflect the status quo. I want to point out that these provisions are completely outdated. They have nothing to do with modern reality, and the law should follow technology. The contents of electronic devices, including cellphones, have nothing to do with a bottle of water, to use your example, clothing or the kinds of things that customs officers have been checking and searching in luggage for a long time.
That is my main point. The law should be changed. With Bill C-23, you have an opportunity to raise the level of evidence required from a customs officer to ensure that this type of search is subject to the same level of evidence as a body search, which is simply reasonable grounds to suspect. These are not very demanding reasons for the government because the context is that it is the border. However, the total absence of legal grounds leading to a search is not an adequate protection of privacy in 2017 due to the content of these electronic devices.
As for client confidentiality and the situation of lawyers, this information, like other information, could be searched by U.S. officers on Canadian soil. Should this be legislated? Ideally, yes. You could either legislate in this respect or take non-legislative measures, because client confidentiality is recognized in Canadian and U.S. law. Should any directions, guidance or advice be given to customs officers to pay particular attention when verifying the content of either written documents or cellphones to reflect the particular nature of the information protected by client confidentiality? It could also be useful. The ideal would be to implement a piece of legislation. However, I am aware — it is in this context that my recommendations are relatively limited — that an agreement has been negotiated with the United States government. It is a bilateral agreement, and it must be taken into account that the Americans could accept changes to this agreement. To your question about client confidentiality, I would ideally say yes with respect to the law, but perhaps, given the advanced state of the negotiations, some guidelines might be sufficient.
The Deputy Chair (Senator Dagenais): I want to follow up on Senator Boisvenu’s question. Challenges can always be made, and time is needed to do so. For example, when lawyers have to travel to New York to meet with a client, they are always in a bit of a hurry. For most Canadian travellers, time is of the essence. Don’t you think that Canadians would be prepared to accept a search of their computer to avoid being refused entry into the United States or even missing their flight?
Mr. Therrien: It is quite possible that some and perhaps the majority of travellers would willingly submit to searches. First, what I am saying is that the content of cellphones is very sensitive. Second, Canada cannot tell the United States what its border control policy should be, and that is relevant to your question. I am not in a position of influence concerning that aspect. Perhaps the government is in such a position, but its powers in that area are limited. The United States adopts its own border control policies.
To come back to people’s behaviour, I think they must take into account the fact that the U.S. controls its border, and its policy is to search telephones without legal grounds. Before they arrive at the border, travellers should think about the consequences and figure out whether or not they are comfortable with bringing sensitive data into the United States and exposing it to searches. For practical reasons, some people will accept going to their meeting in New York while risking exposing information that is protected by the solicitor-client privilege, and the risk is not zero. Others will say that they won’t bring that information to the border and will try to find another way to keep it at home or to have access to it in ways other than by exposing it to a customs officer’s control.
Yes, individual decisions are involved in searches, but my recommendations are about ensuring that state agents meet some minimum standards, and then travellers would have a decision to make.
[English]
Senator McPhedran: Thank you, Mr. Therrien. My question relates to the first recommended amendment that you referenced in your presentation. In it you note that the searches of electronic devices are subject to the same threshold as searches of persons, that is, reasonable grounds to suspect.
I would like to go a little more deeply into some of the practical experience that we’ve had over the years with this reasonable grounds to suspect. I would like to ask if consideration has been given to the kind of protection that would discourage racial profiling as part of that reasonableness on the part of those who may decide to investigate further.
Mr. Therrien: Well, if the law were to provide what I recommend, this would require the officer applying that law to have reasonable grounds to suspect in relation to the individual being examined at the border for customs purposes. That would require an individually based determination by the officer, one that would not be subject to discrimination, profiling and so on. That’s how I would see this provision being applied at the border.
Senator McPhedran: Just to clarify, then, if I may, from your perspective, we have adequate protections already in place to protect against racial profiling as part of the reasonableness in a search?
Mr. Therrien: No. What I said is if my recommendation is adopted, that would require an individual assessment by an American officer at a pre-clearance facility.
In the absence of that amendment, the American officer can proceed to a search without any legal grounds whatsoever. They have policies, obviously, but no legal grounds whatsoever, which makes it more likely — possible, certainly — that that decision may include profiling. Currently, there is a risk of U.S. officers using the broad discretion they have in a way that would lead to profiling or discrimination.
Now, I know that the government, Minister Goodale for one, has said repeatedly that the work of American border officials would be subject to Canadian law pursuant to clause 11 of the bill, including the Charter. So that is true in principle, but in effect, no one could bring the U.S. government to court to enforce that rule. That’s why I say that that protection is hollow.
Senator McPhedran: So it’s a right without a remedy?
Mr. Therrien: Yes.
Senator McPhedran: Thank you.
[Translation]
The Deputy Chair (Senator Dagenais): I want to follow up on Senator McPhedran’s question. Minister Goodale clearly said that Canadian legislation has priority in the preclearance area. However, you are saying that, even if an American customs officer takes action, they still have to comply with U.S. rules.
We can still recognize that, even if a preclearance area is on Canadian soil, U.S. authority is present, and it would be difficult for American customs officers to go against U.S. laws.
Mr. Therrien: The preclearance area is special in the sense that section 11, I believe, stipulates that Canadian law applies, but U.S. law applies, as well, because an American customs officer’s role is to ensure that the person trying to enter the United States can do so under American law. So American law applies in that sense.
The bill stipulates that Canadian law also applies, especially the Canadian Charter of Rights and Freedoms. Once again, I argue that this protection through the application of Canadian law — including the Charter of Rights and Freedoms — is more theoretical than practical and is actually inoperative because of the U.S. government’s immunity.
[English]
Senator Griffin: You have recommended two amendments to the bill. When the discussion was being held in the House of Commons, were these amendments discussed or the content of them in some way, shape or form? Were these discussed in the House of Commons?
Mr. Therrien: I’ll ask my colleague to add to this. As recommendations per se, maybe not. I certainly raised concerns about the sensitive nature of the content of electronic devices and the hollow character of recourse in Canada.
I did not make a recommendation regarding the amendment to clause 26.1 because that provision did not exist in the bill before the other place; it was added as an attempt to improve remedial provision, so I did not have any provision to comment on at that point.
I would summarize to say that the two concerns I’m raising now were raised, perhaps not in the form of specific recommendations. But now I’m trying to make recommendations. Frankly, I would make even broader recommendations were it not for the fact that this bilateral agreement, I know, is concluded, so there are probably limits to what Canada can convince the U.S. to do in the implementation of the agreement. I’m trying to address important flaws in the arrangement while being cognizant of the fact that the process is well advanced.
Senator Griffin: Okay. So if the concerns were raised, do you know why they were dismissed and why there was no further amendment? Was any reason given?
Mr. Therrien: For the improvement to the remedial provisions, clause 26.1, the house probably thought that they were agreeing in part with not only me but also others who had defined the absence of remedies as a flaw in Bill C-23 as presented in the house. They did not say they disagreed; they just agreed in part by providing for an administrative remedy on some provisions of Bill C-23 but not on electronic devices. I’m speculating, but I think that’s what happened.
On elevating the standard required or the evidence required for a customs officer to conduct searches of electronic devices, I think Minister Goodale answered last week by saying what the bill does is simply codify and continue a practice that has been happening for years, if not decades — namely, treating cellphones and electronic devices as mere goods. So he is correct that the bill maintains the status of these devices under customs law. I take it that is his response to my recommendation.
What I put before you is that it’s true that this is the law as it has been forever, but it should no longer be the law in 2017.
Senator Richards: No matter where they stand in Canada or the United States, American border guards are going to be finally under the auspices of American federal law, not Canadian law. Is that right?
Mr. Therrien: That’s correct.
Senator Richards: Much of this discussion, then, is academic and theoretical because when you get down to it, it’s their country we’re entering and it’s their decision whether we’re allowed to enter or not.
Mr. Therrien: It’s correct to say that the U.S. government could impose all of these requirements, searches without grounds, if they were on U.S. soil. I acknowledge that the U.S. can adopt its border control policy.
I think it is relevant in that, point one, these officers would be on Canadian soil, so what is the role of the Canadian government to improve the standards under which these activities are conducted? Point one.
But point two, perhaps more important, is that the government repeatedly says it is a protection that Canadian law applies.
So it’s true that if these activities were conducted on U.S. soil we would have no influence whatsoever as to how this is done, but the activities will be conducted on Canadian soil.
I understand that there are economic advantages to this. Absolutely. But the government says repeatedly to the Canadian public, “Be reassured Canadian law applies.”
So I’m not putting this on the table; the government is putting this on the table. What I’m saying is that it would be a false reassurance, because in the end state immunity means that a Canadian who would feel that Canadian law is violated could not, by and large, with very minor exceptions, seek redress in Canadian courts.
Senator Richards: That is exactly my point, that in the final analysis, Canadian jurisprudence doesn’t mean very much when it comes to American border guards and who they allow in or out of their country. The decision is finally up to the Americans themselves. It won’t be up to the Canadians. No matter how much we put on the table, the final decision will be up to America who they allow in or out of their country.
Mr. Therrien: Well, I would make two points. At the end of the day, yes. But the activities are conducted on Canadian soil. I think that gives maybe a limited opportunity, but at least some opportunity for Canada to influence how it will occur. Point one.
Point two, if the calculus is we have no influence over the Americans, let’s not say to Canadians wrongly that they have a remedy; they don’t.
Senator Richards: I’m really actually agreeing with that point. Yes.
Patricia Kosseim, Senior General Counsel, Director General, Office of the Privacy Commissioner of Canada: In addition, in terms of what is possible, the bill currently has an exception to clause 10(1) which says that a pre-clearance officer will apply U.S. laws, but in clause 10(2) there is a limit to that.
When it comes to the actual exercise of powers regarding questioning, interrogation, examination, search and seizure, et cetera, the limitation is that a pre-clearance officer is not permitted to exercise those in a manner conferred under the laws of the U.S.
In a sense, Bill C-23 comes to replace those aspects, those legal aspects, with the rules that exist here when it comes to searches. So in a sense there is an opportunity within the confines of the agreement and what’s already been agreed to, as the commissioner has rightly pointed out.
[Translation]
Senator Boisvenu: Thank you very much, Mr. Therrien. Your answers are very clear.
I am sure that 99 per cent of Canadians who show up at an airport like the one in Montreal don’t know what their rights on American soil are. In Canada, the Canadian Charter of Rights and Freedoms is applied, which ensures extensive protection of individual rights.
How can this agreement be more fair for Canadians when there is a pretty large discrepancy between the protection of civil rights in the United States and in Canada? How can a Canadian within the U.S. control perimeter at the airport make that distinction without feeling that their rights are being violated based on the rights recognized in Canada and not in the United States?
Mr. Therrien: That is a good question. Canadian law and U.S. law are obviously different, but the two countries are governed by constitutions that provide for rights. Is the U.S. law more permissive for the state while it provides less protection for individuals than Canadian law does in this area? That would be a good issue to consider.
Right now, I am stressing the fact that American officers can search goods, including cellphones, without grounds. Canadian law is currently at the same level because it is a matter of borders, and states generally exercise fairly extensive powers at the border. The Canada Border Services Agency has a policy to go beyond what the law allows and to limit its interventions to cases where it has reasons to suspect that a cellphone may contain evidence of a law being violated. That is a Canadian policy, but in terms of strict rights, the law applied at the Canadian border by the Canada Border Services Agency is not so very different from the law applied by American officers when someone wants to enter the United States.
Your question implies that travellers should be notified before they deal with an American customs officer. Before such a notice is given, it should be determined whether, overall, American law provides less protection than Canadian law. Yes, a notice may be useful, but do Americans really have more extensive powers?
The bill contains a specific provision on biometrics, which expressly states that, if an American officer collects any biometric information, the traveller in the preclearance area must be told about it. So there are provisions that sort of cover what you are talking about. Travellers should be informed under the provision of the bill on biometrics. Should that be expanded to other measures travellers are subject to when they deal with an American customs officer? Probably. You should put this question to officials. It could be useful, but is it necessary? I’m not sure. Perhaps Canadian law and American law are not so different.
Senator Boivenu: The minister talked to us about the potentiality of establishing, in some U.S. airports, preclearance areas similar to those Americans have in Canada. Does that mean that U.S. travellers would be screened at an American airport by Canadian customs officers?
Mr. Therrien: Yes.
Senator Boisvenu: Would those customs officers be applying the Canadian Charter of Rights and Freedoms to travellers?
Mr. Therrien: It would be exactly the other side of the coin, a mirror image in the other direction. American customs officers on Canadian soil are subject to Canadian law, as set out in the bill, but they apply U.S. law when determining whether someone can enter the United States. Similarly, in your example, a Canadian officer would be applying Canadian law to determine whether someone can enter Canada and would be subject to the Canadian Charter in the exercise of their power. However, I think the officer would also be subject to American law because they are working on American soil.
Senator Boisvenu: Let us take the example of a cellphone. Let’s say that the amendment you have proposed is accepted and Canadian legislation is amended to stipulate that a cellphone is an extension of privacy and that reasonable grounds are necessary for a search warrant. We have to ensure that the same amendment is applied on the other side. Otherwise, an American entering a U.S. airport on Canadian soil would have more rights to privacy than a Canadian entering the United States through a Canadian airport. We have to make sure that the law is amended on both sides of the border so that the same kinds of rights would apply in terms of protection.
Mr. Therrien: You are right. I focused on Bill C-23 because that is what you are studying, but what you are saying is completely logical, and I believe that the application of the same rule to Canadian customs officers would be an amendment to the Canadian Customs Act that would change the standard of necessary evidence for a customs officer to be allowed to search an electronic device when someone wants to enter Canada. That could be a consequential amendment, so to speak.
[English]
Senator McPhedran: I’d like to go back to my question, to our discussion. The last point I made was that we were really discussing, it seemed to me, the articulation of rights without remedy, which, of course, makes those rights hollow. I’d like to take it a little bit further, in terms of your recommended two amendments, the second one, which is to extend the administrative remedy in clause 26.1 to all activities performed by U.S. officials in pre-clearance facilities, including searches of electronic devices. I think that’s clearly stated.
I’d like to go back to clause 26.1 and explore with you a little more what that would really look like on this question of what is the substantive remedy that we are hopefully delivering in 26.1.
I note that a traveller may, in a prescribed manner, inform the Canadian senior officials of the Preclearance Consultative Group, and then they can make reference — and we’ve got specifics, namely, strip search, monitored bowel movement, body cavity search, withdrawal from the inspection or suspected offence — those are specified in this section, and this is where you would add in specific reference to cellphones.
May I ask whether it would be only cellphones in terms of personal devices?
Also, I would like to explore the nature of the remedy, because in terms of informing the Canadian senior officials of the Preclearance Consultative Group, what will that do for me, as a traveller? Where is the remedy in that?
The other part of my question is this: In order to hold Americans accountable for what they do to Canadians on Canadian soil in the pre-clearance process, and for Canadians to be able to rely on what’s in this bill, doesn’t this, in practical terms, come down to suing President Trump? Isn’t that a bit of a challenge for your average Canadian traveller?
In terms of substantive remedies, what are we likely talking about here? I do appreciate that my question is probably wider than the points you were making. Feel free to limit your replies to the key points you were making, but it does seem to me that in reference to using 26.1 in this way, we really have to ask ourselves a question about the remedy that is potentially offered and delivered.
Mr. Therrien: Thank you. Clause 26.1 offers an administrative remedy, which is obviously less than a judicial remedy, but this is the bill before you. As for how that would be articulated with respect to cellphones or electronic devices, I think the two recommendations are working together.
Clause 26.1 is the remedial part, and it says that for a number of substantive rights given by the bill, essentially strip searches and withdrawals, there is an administrative remedy.
In order for the administrative remedy to apply to electronic devices, you first have to adopt the first recommendation, which is to elevate the standard, which gives certain rights to individuals. Then the remedy in 26.1 is linked to a substantive right. So you need to do both to have this administrative remedy applying to electronic devices.
Would it be limited to cellphones? No. Certainly electronic devices generally. I don’t want to be held to the exact formulation, so what I’m trying to do is — the searches of goods currently and historically are subject to no grounds whatsoever. If you search a bottle of water, as Senator Boisvenu was saying, that’s fine; you’re at the border. So I’m not saying that the threshold should be elevated for the search of every good. We need to carve out from the general category of goods what are the goods that contain personal information that is sensitive and needs to be protected. With the benefit of 15 seconds of thought, I would say electronic devices, but it’s less than goods. We need to carve out a category which is certainly broader than phones and may include electronic devices generally.
Some reference in the statute as to why these particular goods are subject to an elevated standard would be useful. So why electronic devices? Because they contain sensitive information that leads to a reasonable expectation of privacy for individuals. People have a reasonable expectation to protect the privacy of that data, including the good in question, the good being the electronic device.
Some linkage between the device and its content and its relationship to privacy would be useful. Perhaps we can offer some language, if that would be useful, to try to sort that out.
Your next question is this: What is the worth of an administrative remedy of informing a group of senior officials of the executive branch? If we were not at midnight less five minutes with this agreement, having been negotiated two years ago and the Americans having adopted the legislation to implement it, I would say there should be judicial redress. That’s the real redress that should occur.
I put to you that given the economic benefits and given everything Minister Goodale has put on the table, if judicial redress, which is the real remedy, is put on the table, what happens to the whole deal? In an attempt to be realistic, I say I’m working from what the house has done: created an administrative remedy, which is certainly less fulsome than a judicial remedy, but it could potentially lead to discussions between officials of the border agency in the U.S. and Public Safety in Canada and the CBSA. They could in good faith improve things.
So I acknowledge that although not a fully effective remedy, an administrative remedy like this could bring some benefits. It’s not ideal. I’m trying to be realistic.
Senator McPhedran: If I may, I want to observe that the whole discussion of remedies is predicated on individual travellers bearing the burden of documenting, making complaints and then following through. That is a considerable burden for individual Canadians travelling to bear.
Senator Griffin: I have a few questions. I think the first two you may partially have answered. This regards a letter you wrote on March 8 that’s on your website. It’s a letter to the Honourable Ralph Goodale and the Honourable Harjit Sajjan, the Minister of National Defence. In it you’re urging the Canadian federal government to ask the United States for Canada to be added to a list of designated countries under the Judicial Redress Act, which would extend certain judicial recourse rights established under the U.S. Privacy Act to Canadians.
I think you’ve already answered the question, but let me specifically ask it anyway. Did the government follow your request?
Mr. Therrien: No. I received an answer from the government a few weeks ago essentially saying that administrative safeguards under existing administrative agreements between Canada and the U.S. will continue to be respected and that, according to the Canadian government, there is no need, therefore, to ask that Canada be added to that list.
Senator Griffin: That’s interesting.
This is in regard to the withdrawal of travellers from pre-clearance areas. I’m sure you’ve had a lot of questions regarding this; you’ve certainly had a lot of them here today. When a traveller withdraws from a pre-clearance area for entry into the U.S., what personal information banks would information obtained by an American officer be stored in?
Mr. Therrien: This information would be collected by an agent of the U.S. government and would be in data banks of the U.S. government. The U.S. has a system for notifying individuals in general terms of the types of information they collect and the uses for which they put that information, but all of this would be governed by U.S. law and the administration, or the infrastructure, put forward by the U.S. government to implement these laws.
Senator Griffin: So it would be governed by U.S. law. Would your office have jurisdiction to ensure compliance with Canadian privacy laws?
Mr. Therrien: In general terms, the U.S. officials exercising powers under this arrangement would be subject to U.S. courts and administrative tribunals. That’s a specific provision in the bilateral agreement.
The only exception to that, in terms of jurisdiction of administrative bodies in Canada, would be the consultative group that we’ve just discussed.
Senator Griffin: I think the answer is no, your office would not have jurisdiction to ensure compliance with Canadian privacy laws?
Mr. Therrien: Yes; you’re right.
Senator Griffin: This bill was supposed to be a two-way street. Supposing we had pre-clearance areas for entries into Canada?
Mr. Therrien: Then I would have jurisdiction.
Senator Griffin: That’s what I want to know also. Thank you.
Senator Richards: The United States border law would be the same. I’m not against the bill, but I’m just saying that the pre-clearance law would be the same in Halifax as it is in Calais, where you go across by car. The same law would apply. It’s an American law. The same statutes to enter their country would apply, whether you’re going through pre-clearance in Halifax or going by car into Calais, Maine, from New Brunswick. The American law wouldn’t change in either place.
The idea is that if we don’t accept this law — that is, if pre-clearance is not taken into Canada and we don’t adopt it — we have no say in Calais, Maine, if they decide either to do a strip-search or not to allow us to enter. However, it’s pretty well the same in Halifax or Toronto, if they decide. It’s their country that we’re going to, right? So they have the final say?
Mr. Therrien: It is their country that people want to travel to, but it’s on Canadian soil. I’m suggesting again that there is some measure of influence that could be exercised.
[Translation]
The Deputy Chair (Senator Dagenais): I want to thank Mr. Therrien, Ms. Kosseim and Ms. Shepherd for appearing before the committee.
We are continuing the meeting with our second panel of witnesses. From the Canadian Bar Association, we have Michael Greene, Honourary Executive Member, Immigration Law Section, and Kathleen Terroux, Lawyer, Legislation and Law Reform. We are also hearing from Hugues Langlais, President, Immigration and Citizenship Committee, and Réa Hawi, a lawyer at the Secretariat of the Order and Legal Affairs. Both are representing the Barreau du Québec. Finally, here from the Canadian Muslim Lawyers Association, we have Pantea Jafari, Board Member.
I would ask that you do your best to shorten your presentations in order to give senators an opportunity to ask as many questions as possible.
[English]
Kathleen Terroux, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you, Mr. Chair and honourable senators. We appreciate your invitation and are pleased to be here today on behalf of the immigration law, criminal justice and commodity tax sections of the Canadian Bar Association to present our views on Bill C-23.
The CBA is a national association of over 36,000 lawyers, law students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice.
In March 2017, we made a submission on Bill C-23 in which we were supportive of the concept of pre-clearance and recognized the economic benefits, but we urged the government at the time to engage in an extensive review before enacting this highly intrusive legislation.
With me today is Michael Greene, a senior adviser and previous section chair of the Immigration Law Section, who will address our substantive comments and respond to any questions.
Michael Greene, Honourary Executive Member, Immigration Law Section, Canadian Bar Association: Good afternoon. Thank you for inviting us to address you today. We have some concerns and we are pleased to be able to bring them to the table.
I’m Michael Greene; I’m an immigration lawyer in Calgary, Alberta, and I’ve been practising for about 30 years. I also teach at the law school in Calgary. The original legislation came into being in 1999, and at that time I was on the national executive. I was the point person on that legislation, so I appeared before this committee because it was introduced at the Senate, the legislation was there, and then again at the house. Interestingly, most of the changes were made at the Senate before it went to the house and they were sweeping. The same thing happened that has happened this time, which is that the executive branch had negotiated an agreement with the United States, and then it was presented in bill form.
Again, not a lot of thought was given to rights and freedom of Canadians when they did that exercise, and the result was that the initial draft of the bill was pretty horrendous. What you see now in the 1999 Preclearance Act had some very substantial changes. One of those was that they made it absolutely clear about the unrestricted right to withdraw, and that’s the subject I want to talk the most about today. I’m quite prepared to answer questions about any of the other areas. Our brief is comprehensive, covering several different issues that we have.
The groups that are appearing with us in this session and the next session have had some discussions. We’re each going to emphasize one particular area so that you don’t keep hearing the same thing over and over. I can tell you that we’re pretty much in agreement in our positions on the various concerns.
I will say this just at the outset — and Mr. Therrien referred to it a number of times: We have this curious situation where an agreement has already been negotiated and we’re being told the government does not want to renegotiate that agreement. They do not want to go back to the table. They only want to entertain changes that will tweak it without changing the nature of the agreement. That is extremely difficult to do without the wholesale sacrifice of the rights and freedoms of Canadians.
You heard it said several times just in the last session that there are supposed rights, so the bill actually says that the Constitution of Canada — the Charter of Rights and Freedoms, Canadian law — applies. But the fact is there is absolutely no way of enforcing that, none whatsoever in there. There is no way for review.
Now that worked just fine, and even the minister himself has said that pre-clearances worked fine for 60 years. We haven’t had any major incidents. I would put it to you that’s because the bill works. The framework that we have works. It says that you have an absolutely unequivocal right to withdraw at any time. You are on Canadian soil. It’s totally different from a port of entry where you’re on U.S. soil. You’re on Canadian soil. If you feel you’re being abused or you’re being profiled because of your race or your religion, and you have put up with an hour of questioning and you think that’s enough, you get to say, “I’m out of here.” This bill changes that. This bill says you don’t have the right to leave because you can be questioned about your reasons for withdrawing.
Now the minister and others have pointed out that there is a safety valve there because it says in the bill you can’t unreasonably restrict the rights of the person to withdraw. The problem with that is what is reasonable? For Canadians we have some ideas of what is reasonable. It’s a term that goes to the Supreme Court with fair regularity in different areas. But in our context, we’re pretty friendly. We’re all about the free flow of goods and people, so reasonableness would come in the context of that free flow.
In the U.S., where there is this fixation on security, their officers are going to be trained and schooled in applying that as their number one concern and keeping the bad guys out. What is a reasonable degree of questioning will be different in their eyes. You can say it’s Canadian law that applies so it’s a Canadian test they should be applying. Who is going to enforce that? What is the mechanism for enforcing that? There isn’t any.
We looked hard at the agreement, and I do not see a mechanism created there. This consultative group that is referred to in the agreement itself wasn’t intended for the purposes that the house committee recommended. It’s more to deal with situations where they are thinking of charging an officer in criminal court and there is this competing jurisdiction where the host country has second fiddle there.
However, it says that the ultimate decision is made by the party with jurisdiction. In 17(c) it says that in its sole discretion it makes the final determination. So you can take your complaint to the committee, but ultimately the Americans decide if your complaint is founded or not, and there is no provision for remedies in any event.
So you could try to impose remedies, say you’re open to judicial review in Federal Court, but then your problem is that that is a fundamental change to the agreement.
We’re saying you need to modify the powers, and we do not need to give the American pre-clearance officers the powers that this bill would give them. It’s focusing on the right to withdraw. It’s a nuance in the right to withdraw. So they can ask about the reasons. We’re proposing, and I think our colleagues in the other groups are also proposing, that it should be restricted to providing a reason or identifying a reason rather than probing into what the reasons are there.
The way the mechanism will work now is this: Let’s say the Muslim traveller approaches a pre-clearance area. They get sent to a secondary inspection and are asked questions. They don’t like the way those questions are going, and so they say, “I want to withdraw.” The officer says, “Well, I have the right to ask you questions about your reasons for withdrawing.” So they get more questions. And then they finally say, “Well, that’s enough. We have been doing this for two hours now. I don’t want to subject myself to any more questions. I want to get out of here.”
At that point, the officer can charge them or say, “I have reasonable grounds to suspect.” And you know that is a very low threshold. It’s not reasonable grounds to believe. It’s reasonable grounds to suspect that you have committed an offence by not being truthful with me about your reasons for withdrawing.
At that point, clause 32 kicks in. The officer is, under the agreement and this bill, allowed to detain that person. At that point, under clause 32, I think (c), they are allowed to question the person, without restrictions. The reasonableness thing comes off. All they have to say is, “I have reason to believe you’re not telling me the truth.” That’s all they have to say. Then it’s wide open questioning; there is no limit. What are you going to do if you have a complaint and you feel aggrieved? There is no mechanism.
The solution is don’t give them the power in the first place. Don’t give them this unrestricted power or this way of asking questions. It should be enough that they identify it. Lord knows they have already got your identification. They know exactly who you are. They have your passport, and so you’re identified. They have your biometrics. They have photographs with all the information. They know a lot about that person already. So letting them leave is not like you’re letting the bad guys get away. You have already captured who they are and what they are doing.
Our recommendation is we’re okay with letting them identify the person before they are allowed to leave. And, sure, have them provide their reason. If you subsequently find out that they lied, you can charge them under the act. That is a Canadian offence.
I think my colleague Pantea Jafari will be talking about this lack of recourse. You heard it earlier in the last section. We are very concerned that there aren’t any remedies, and rights without remedies means there are no rights at all.
Looking at how you can do that within this framework is difficult because anything you do substantially, you’re back in the situation, oh, now we have to amend the agreement. It’s easier if you can circumscribe the powers that you give to American officers.
There are a couple of other points I want to cover, and then I’ll deal with anything else by questions. The search and seizure, the minister says it’s rarely used. He says there has never been an incident. If it ain’t broke, why fix it?
Again, we have a situation where once you start letting Americans override — you get in this perverse situation where a Canadian officer, trained in Canada, applying the Charter, says, “There aren’t sufficient grounds here to conduct a search. I’m not doing a search.”
What we have done in this bill, which was not in the previous legislation, is say that the American officer can disregard their finding and say, “I don’t care. I’m doing the search anyway.” And they get to do it. That’s the way that section has been worded. I’m not sure where it came from. I think they thought there might not be Canadian officers around. The fact is that even if you do it at a train station in Montreal, you have Canadian police officers who could come in and do the search if you need it. It’s not like we’re out in the hinterlands of nowhere. These pre-clearance areas are all in major centres.
I want to draw your attention to the information sharing which one of my colleagues will talk more about. It’s somewhat nuanced. The CBSA is developing its policy now. It is in their policy manuals. There are three issues involved there. There is what you can find inside the device. Then there is access to the cloud, which is another whole level of information. Then there is solicitor-client privilege. Those three issues are important. They are all areas where there is a good chance we’ll have a divergence between Canadian and U.S. policy.
We have to be addressing it. As Mr. Therrien says, we have to address it not just for the pre-clearance but also for our customs areas. Our courts haven’t been as clear, but certainly our administration is clearer, and we certainly seem to have much more respect for individual privacy rights here than they do in the United States, especially under the current regime.
I think my last point will be addressed by the British Columbia Civil Liberties Association, but what happens at Canadian PCAs outside of Canada? I want to talk about the denial of the right of permanent residents to return. Right now the Immigration and Refugee Protection Act says that Canadian permanent residents have an absolute right to return to Canada, unqualified. As soon as they identify the person is a permanent resident of Canada, the officer must admit them. There are no conditions.
Now they want to say that at a pre-clearance area they can say no, and they won’t admit them there. Then they have to proceed to a land crossing.
The minister talked about serious criminality, but I couldn’t see why you would limit it to serious criminality and not to security threats, human rights threats, terrorism. Why would you only do it to serious criminality?
The real reason is that they want to be able to turn these people over to the Americans to do with them what they will. That’s the concern. We should be concerned about that because how many times should Canada have to pay out $10 million and give out a formal apology because we turned somebody over to the Americans, who rendered them to a foreign country or to Guantanamo or whatever it is?
The provision is not in the agreement, by the way, so they can’t stand behind that and say that they don’t want to change the agreement. This business of denying entry to permanent residents came out of the blue. I flag that as another one of our issues.
My last sentence is Article 15, that the parties may amend this agreement by mutual agreement in writing. That’s all it takes. I know it takes diplomacy.
[Translation]
Hugues Langlais, President, Immigration and Citizenship Committee, Barreau du Québec: Thank you for inviting the Barreau du Québec to participate in your analysis of Bill C-23.
The Barreau du Québec is interested in various issues that concern the protection of the public. That is its primary mission. In that spirit, when the Barreau du Québec analyzes a bill, it is very concerned by the individual rights that are involved and that are called into question by the proposed legislation.
In the current context, we are reasonably concerned by a number of things that my colleague Michael Greene put forward. The Barreau du Québec completely agrees with what he said. Other suggestions will be made to you today on which we will not insist further.
We will focus on a number of issues. First, we are very pleased that American border officers will undergo training on Canadian law. They will have to be deprogrammed in order to be reprogrammed in Canadian law, which is a huge task, in our opinion. In addition to reprogramming them, those in charge will have to ensure that they are constantly accompanied by Canadian officers in their work, or else there will be a series of problems with that reprogramming.
Another concern the Barreau du Québec has in this context is ensuring that the exercise of powers conferred by the bill is done with full respect of the solicitor-client privilege.
It is of the utmost importance that we go back to the basis of the Supreme Court’s teaching on the protection that must be given to the solicitor-client privilege. There are other elements we could flesh out further by answering questions. The French wording of clause 33(1) of the bill should be reviewed, as it contains a weakness. We also recommend that the term “résiste” in clause 38 of the bill be defined. I will stop here, hoping that many of you will have questions for us. Thank you.
The Deputy Chair (Senator Dagenais): Ms. Hawi, do you have anything to add?
Réa Hawi, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: No, the points have been covered by my colleagues from the Canadian Bar Association.
[English]
Pantea Jafari, Board Member, Canadian Muslim Lawyers Association: Good afternoon. I am here on behalf of the Canadian Muslim Lawyers Association. We represent Muslims all across Canada at varying immigration statuses, whether they are citizens, permanent residents or have been invited to Canada as visitors, workers or students. We also represent a wide spectrum of people who are covered by the brush stroke of “Muslim” in the post-9/11 era, which is a vast population amongst those residents in Canada that would be subject to this bill.
Everyone who has testified before the house committee and this committee is unequivocal in relaying the fact that this bill does not have any teeth in terms of fundamental protections for the rights of those in Canada, the very protections that the Prime Minister and Minister Goodale say are the main benefit of this bill.
The bill is being introduced under the auspices of the idea that of course the Americans can do what they want, but here we have the benefit of being on Canadian soil with the protection of the Charter and other Canadian laws. As the commissioner and a plethora of legal organizations testified at the house committee reviewing this bill, and as the rest of us will be testifying before you today and on the next panel, fundamentally, that is just not the case.
With that not being the case, you have to wonder what is happening. What is the reason for it?
When Minister Goodale opened discussions on this bill in the house, he testified that everything was going great. The U.S. was very satisfied with the pre-clearance areas. There were no issues. Indeed, they were so happy that they were looking to replicate this in other jurisdictions around the globe. They were very happy with the Canadian model. Things were going great. They want to expand it.
The present version of the bill also has a sunset clause. It has a review mechanism. It mandated a review every five years.
We haven’t been told. We haven’t been presented any tangible evidence that suggests the U.S. is saying that they cannot perform their duties, that they cannot protect their borders without expanded powers as enshrined in this bill, the expanded search and seizure rights, the expanded physical strip-search rights, the expanded questioning rights, the limitation on the right of withdrawal. None of this has been proven as a necessity for the continued operation of pre-clearance areas. In fact, as Mr. Greene said, the minister said 60 years of smooth sailing. What is going on? Why are we doing this?
I understand there is a great benefit to be had from the expansion of pre-clearance throughout Canada, as well as its expansion to trade and commerce and transport, but we have to be really mindful of at what cost we’re willing to gain those advantages.
Unlike the rest of the organizations who might, more in a politically correct way, be able to sit here and tell you about the deficiencies of the bill, which are outlined thoroughly in our written submissions and echoed in the house committee, for example, we made a joint submission of a summary of all of our key briefs between the National Council of Canadian Muslims, the International Civil Liberties Monitoring Group and the Canadian Muslim Lawyers Association.
We outlined that the fundamental flaw in this bill that is undeniable and palpable is that it doesn’t have the mechanisms for recourse. When that is being done in an era where we have the most palpable litmus test of the fears that we should be considering when considering ceding powers to such an extent, it’s really disheartening. It’s very concerning and alarming.
The population that our organization represents is going to be, undeniably, the most targeted by any changes in the pre-clearance areas. When President Trump says “extreme vetting,” that is what is happening already. That is leading to mothers wanting to buy toys for their kids across the border being questioned to no end, for six or seven hours, and then being denied entry. This morning we heard of a writer and a reporter in Ontario being questioned for two hours, missing a flight, and then later coming by to catch that flight and still being questioned.
When these things are happening under the present Preclearance Act, we cannot deny that any changes to it in the form that we’re proposing under this bill are going to be felt disproportionately and discriminatorily by racialized populations. So we’re seeking to gain an economic advantage through easier trade and easier movement across the borders at the cost of significant civil liberties, costs that are going to be disproportionately applied to sections of the population.
Not everyone is going to see these downfalls, of course. The average citizen might be asked a just a few questions and be able to enter. People who are waiting at border crossings right now might actually have a benefit that now with pre-clearance it will be shorter.
I actually recall at the house committee a member of Parliament explained how it was very frustrating for her that she was at a crossing at an airport for an exceptionally long time and how much better it would be if we had these pre-clearance areas. It would be a much faster transit for her.
I agree. Some portions of the population will have those benefits. But we cannot deny that for a great portion of these racialized populations, who are already over-policed in their communities, who are already disproportionately scrutinized at the borders, who already feel threatened by people in authority, they are going to be at these borders without the right to realistically withdraw, and they are going to have heightened frustration every time they have to choose between the benefits gained by going to the U.S., whether that’s in terms of attending family events or attending work functions that might be necessary for them to keep their jobs, and feeling the indignity of being questioned to such an extent that they feel like they are being treated like criminals.
This is a reality that is already happening, and we’re only going to exacerbate that by expanding these rights that, again, we have received no evidence need to be expanded, without any ability to meaningfully have recourse when those rights are violated.
Many organizations have testified that through the intersection of the State Immunity Act and the provisions of the bill there is literally no meaningful or viable opportunity to remedy any wrongdoing by a U.S. pre-clearance officer, save and except for where there is death, bodily harm or damage to property. Only then are you allowed potentially to sue the U.S. government — and only the government, so that officer will still not necessarily have any liability.
An average person in Canada, whether they are a citizen, permanent resident or temporary resident trying to travel to the U.S., would have to take on the U.S. government, and they could do so only if they were in a situation of death, bodily harm or damage to their property to have any sort of recourse under this bill. That is extremely problematic and alarming.
We are now at the Senate stage. We testified to all of these things at the house stage.
I’m happy to see some changes in the bill coming out of the house. For example, a five-year review was put in. We’re very grateful and thankful to see that, but there is really nothing done regarding the core dysfunction of the bill, which is the lack of accountability.
What I notice coming out of the house is that clause 26.1 was added. With all due respect, this is just window dressing. It’s a glorified comment card.
The section literally says, as Senator McPhedran read out earlier, “. . . a traveller may, in a prescribed manner, inform the Canadian senior officials . . . .” What does “inform” mean? You literally get to tell somebody that you felt violated?
[Translation]
The Deputy Chair (Senator Dagenais): Ms. Jafari, I unfortunately have to stop you there. We only have 30 minutes left, and senators would like to ask questions. You could continue your explanations as you answer questions.
Senator Boisvenu: Welcome. You presentation was most insightful, but also most troubling.
Mr. Greene, do you think this bill is a step backwards from the 1999 legislation?
[English]
Mr. Greene: Yes, it is.
[Translation]
Senator Boisvenu: What you said confirms it for me.
[English]
Mr. Greene: It is, I think, probably necessary from the government’s point of view that it’s much more comprehensive. The new bill is probably four or five times as long as the old and has a lot more provisions, particularly around liability of officers and criminal charges against officers. That seems to be a major focus, also the ability to expand to land crossings and sea crossings.
I know we have economic interests like Billy Bishop airport and Quebec that very much want to expand pre-clearance areas, but my feeling now, the more I have been immersed in it for quite a while, is that this lack of any kind of recourse and any remedy seems worse and worse. Once we let those horses out of the barn, I don’t know how we get them back.
[Translation]
Senator Boisvenu: Do you have the impression that this bill has been dictated more by U.S. authorities than by Canadian authorities?
[English]
Mr. Greene: I would have loved to have been a fly on the wall. I think it has all the hallmarks of the first bill, which was written by people in the administration — I don’t like to use the term “bureaucrats” — who wanted to achieve their own ends. From the Americans’ point of view, it would appear they want to have the same powers they have at a port of entry when they’re on American soil. It’s going for maximum power with minimum accountability.
[Translation]
Senator Boisvenu: Does the bill really reflect the fact that some parcels are completely American on Canadian soil?
[English]
Mr. Greene: It’s not supposed to be that way. In the previous bill, which I think was Bill C-22 when it first came in, but it’s the 1999 Preclearance Act, they went out of their way to make it clear, because it wasn’t clear in their first draft, that this is not U.S. soil. It is definitely Canadian soil. But what is happening, and I think you are correct if I’ve got it right, is that de facto it’s becoming American soil because of the inability to enforce any Canadian law.
[Translation]
Mr. Langlais: It is tantamount to a concession of Canadian sovereignty on the right of way between the two territories. Imagine legislation with a notwithstanding clause. Everyone would be up in arms. This is a piece of legislation that involves fundamental rights and accepts, in veiled terms, that there is a notwithstanding clause in all Canadian legislation. So it is an abrogation of Canada’s sovereignty.
Senator Boisvenu: What seems especially worrisome to me is the absence of recourse to appeal.
Mr. Langlais: Among other things.
Senator Boisvenu: A Canadian in an airport on Canadian soil, where there is a U.S. authority, would be captive. In addition to losing their right to recourse, which existed under the previous law, there is no possible recourse even if their rights have been violated.
Mr. Langlais: No possible recourse. There is nothing in the current law that provides for appeal, judicial review or any type of challenge, effective challenge, I would say. Recourse can be taken. To say, however, that it will lead to some form of compensation or redress, the answer is no.
Senator Boisvenu: Could this loss of rights be challenged before the Supreme Court?
Mr. Langlais: One can always make a case before the Supreme Court in the hope that it will rule in our favour. Yes, recourse is still possible. Will the decision be favourable to us? The issue is both political and legal to some extent. There are grounds for a challenge, yes. Will anything be gained? That is another matter.
[English]
Senator Brazeau: I guess my question is more towards Mr. Greene with respect to when we’re talking about the unrestricted right to withdraw. Do you think that this bill is essentially the government off-loading its responsibility perhaps to appease the U.S. government and its views and positions on security?
Mr. Greene: I don’t know that that was the intention. I would like to think that our representatives were just blind to the issue and didn’t realize. They thought that if you put in this provision that says the Charter applies, everything will be fine.
It’s a curious way to make law. The governments get behind closed doors, come up with this agreement and sign this agreement. Then they present it to Parliament and say that you can’t change it: “Now we’ll do consultations and invite Canadians to speak about it,” but we’re being told, “It doesn’t matter what you say. We can’t change the agreement, so you’re stuck with it.”
Certainly, the net effect in our view is that they have off-loaded the responsibility and done a poor job of protecting Canadians’ rights in it, and this bill is seriously flawed because of that.
Senator Brazeau: And potentially communicating their position on it?
Mr. Greene: Yes. If they had a position, well, it wasn’t effective. Remember, it was the previous administration in the U.S., which, in theory, would have been much friendlier to our point of view, but I’m not sure it really works that way. I don’t think this came from the White House. It was, I suspect, just the apparatus of the border services agencies.
You have to remember we’re doing a lot of cooperation with the Americans now, a lot of information sharing. We’re doing a lot of work quite closely together. So I suspect it came out of that process of what works for the agencies, except that nobody considered Canadians’ rights in the process, or it seems like it.
Senator McPhedran: I’m going to page 19 of your brief and to the summary of recommendations. Then I’m turning over to page 20. Although I have many questions, I would like to focus and ask you to clarify a bit more the vision around Recommendation No. 8, which is a little unclear, at least to me.
Recommendation No. 8 reads:
The CBA Sections recommend the creation of a working group with representatives from the CBA, Justice Canada and CBSA to collaborate in the development of a defined policy for searches at the Canadian border that involve information protected by solicitor-client privilege.
I have a number of questions about this, and I do want to invite those representing organizations in addition to the CBA to make suggestions or comments.
Here are my questions: First of all, what is the timing that you see as ideal for this working group? Second, why did you make this as narrow as solicitor-client privilege? Third, for the findings of the working group, what do you see as an optimal rights-focused process? What would happen to those findings? Who would engage with those findings? How would the work of the working group potentially lead to any actual changes in the law?
Mr. Greene: A lot of questions — I’ll try to remember them.
Senator McPhedran: All related to this one recommendation.
Mr. Greene: I get it. This was a brief prepared by committee, and you know how that works, but I think I can speak to it.
This is part of a larger issue; it doesn’t affect just pre-clearance areas. It is one the government is grappling with in Bill C-21; the same issues are coming up in different places. Mr. Therrien referred to these issues and that we have to be clear in Canada about our policy on how we handle electronic devices, and, as I said, not just on the devices but also on the cloud.
Then, how do we handle solicitor-client privilege? When they take my device at the border, I can tell you it’s filled with correspondence with my clients, highly confidential correspondence, and I would not want them copying that correspondence and sending it off to Washington where it will never be retrieved.
This happens at ports of entry as well, when you’re coming into Canada. We need to be clear on our policy. We have to develop those policies. We’re saying we want to be invited to the table to help work on those policies rather than being presented with these where somebody hasn’t done their consultation and, probably innocently, has missed a few issues.
Senator McPhedran: When do you want to be invited to the table? The timing of this is unclear.
Mr. Greene: I think it should be going on right now because this technology is evolving so fast and our ability to capture information is evolving fast.
Let’s look at Bill C-21, which is before Parliament right now. That one is going to make a fundamental change to the powers of customs officers. They will be able to examine people on departure and ask them all the questions they ask on entry. They’re going to be entitled to do that. There’s going to be more opportunity for gathering information. We need to be clear on our policies.
The Supreme Court has commented on electronic devices, saying they need a higher standard, and solicitor-client privilege they put way up here in terms of standards. The nuances of the information on the cloud and how it should all work they haven’t dealt with in the port of entry context, as far as I know.
I read Senator Jaffer’s remarks, and she talks about these. She specifically refers to some cases, saying we need to be careful about this kind of thing. I emphasize that that recommendation is a broader context of what needs to be happening with ports of entry and the capture of this kind of information, so it does affect pre-clearance. We are saying the Americans have to apply Canadian law, so that means our interpretation of Canadian law should be the policy our CBSA applies. Then that’s what the U.S. Department of Homeland Security should be applying on Canadian soil in pre-clearance areas. But if we’re not clear, how can they be clear?
Senator McPhedran: The answer to my question about when is right now — which would mean prior to adoption of the bill — right now, go into this in more detail, either through this process or another but likely through this process here in this committee. You’re making recommendations to us on this. I get that.
When I said why just solicitor-client privilege, I didn’t mean in any way to trivialize the importance of that. As a lawyer, I appreciate it. But what about clause 26.1? What about the emptiness of clause 26.1 and the lack of any other alternative at this point?
[Translation]
Mr. Langlais: How would I put it? First, I think you have to remember, as regards solicitor-client privilege, that this is a power vested in us and given to us by the client. You are a lawyer by training, so you understand that we have solicitor-client privilege, but it is given to us by the client. We are vulnerable, but the client is even more so. It is the client who is vulnerable to this violation of fundamental rights.
If there is information on our computers, laptops, telephones or other devices, it might certainly belong to us, but it belongs to our clients even more, and that is something we have to protect. The Supreme Court has told us a number of times, in a number of decisions, that solicitor-client privilege is an essential consideration in our democratic society.
In that sense, this protection has to be maintained when we leave and return to Canadian soil because that vulnerability exists at all times. There are currently no guidelines whatsoever regarding the protection of solicitor-client privilege when crossing the border in either direction. That is worrisome, extremely worrisome, and that is why the Barreau du Québec agrees with the Canadian Bar Association’s recommendation that a working group be created, and we are all prepared to participate in it as soon as possible.
As to clause 26.1, it includes a number of words that are completely meaningless.
[English]
Ms. Jafari: I think the question you’re asking is are there not equally concerning things that we should also be investigating at the present stage. My answer unequivocally is yes. Though the organizations before you and before the house testified as to these fundamental flaws, the overarching main one being that there aren’t any review or accountability mechanisms, where we kind of lie on the spectrum is in terms of what would be required to remedy that. For example, when the commissioner testified, he said if you added mobile devices to clause 26.1, that would be helpful.
What I’m here to say is that that’s not enough. It’s fundamentally not enough. To say that you can report to somebody just of a violation or a feeling that you’ve had without any legal remedy to be able to hold someone accountable for that violation is meaningless. As you said, it’s a right without a remedy.
Because of that, although I understand there’s no appetite to renegotiate the agreement that this is based on, it fundamentally needs to happen. That’s the whole purpose of the legislative process; an agreement is formed and then the legislature comes through, scrubs it down and sees whether there are issues with it that are fatal or whether amendments need to be made.
If there are fundamental things that are missing from this bill that need to be in it and your hands are tied because of this agreement, I think you need to recommend that the agreement be reopened.
If President Trump can reopen NAFTA suddenly, why can’t we reopen this agreement? If it’s so fundamentally flawed that it is sacrificing the civil liberties of all Canadians and we know it is disproportionately and discriminatorily going to be applied to a portion of Canadians, then why would we go down this road? Why not halt the train before it gets even worse? Because once you cede that power — and again, it’s unprecedented power to cede our sovereign rights and to suddenly essentially form U.S. soil on these pre-clearance areas. It’s something that you’re not going to be able to rope back easily. We are standing at a cross point right now where we can actually do something about it.
Senator Griffin: I have a couple of questions, and one relates to the NEXUS card. I understand that NEXUS cards have been confiscated in some circumstances in pre-clearance areas, maybe sometimes for questionable reasons. In your brief, that comprehensive brief we have in front of us, you’ve given a recommendation for dealing with this by proposing an amendment to Bill C-23. Would you expand upon this, please?
Mr. Greene: Could you just provide me a reference, please?
Senator Griffin: Page 9 and 10, (f) NEXUS, and Recommendation No. 8 on page 10.
Mr. Greene: On that one, I’m going to confess to being less familiar. I’m not going to say that is wrong, but my understanding is there is a mechanism that people do use when a NEXUS card is confiscated at either a port of entry or a pre-clearance area. It does kick in a NEXUS review. I stand to be corrected by my colleagues if I’m wrong about that, but I think we got an answer during the process since we drafted this, and I think that’s not one that we’re hammering.
By the way, we circulated, I think, our updated submission by way of letter dated December 4 that deals with fewer issues, but you’ll note that that’s not one of the ones that’s put in there. We’ve kind of distilled our multiple recommendations down to a handful, not to say they are unhelpful recommendations in the broader brief, but we wanted to focus on what we find is most egregious or most in need of change. I don’t think NEXUS is at the top of that list.
Senator Griffin: I have a document dated December 4 to the Honourable Senator Gwen Boniface, chair of this committee. I’m not sure what’s happened there. There seem to be two versions.
Mr. Greene: One is from March. I apologize. It’s the brief that we had brought to the house. Some amendments happened and some issues got dealt with.
Senator Griffin: That’s good. That’s always positive.
Mr. Greene: Yes. It’s a positive process. It’s working.
Senator Griffin: To what degree would adding Canada to the United States Judicial Redress Act of 2015, which affords the same rights to sue and provide increased privacy protections to individuals who are not American residents, address concerns we are hearing here today?
Mr. Greene: I’m going to say I’m not quite sure. I think it was dealt with in the last session, if I’m not mistaken. I think it was about giving remedies because there aren’t remedies under the current bill. I’m not exactly sure how that mechanism would work, but I think it would create an avenue of redress if Canada was a party. I believe that’s what the intention is there.
Senator Griffin: I think it was the intention. That’s why I’m asking. Thank you.
[Translation]
Senator Boisvenu: In your 17 recommendations, I did not see any regarding lack of recourse. Did I read miss something? Because one of the points you are stressing is that the bill does not provide any recourse to Canadian citizens who are detained.
In your 17 recommendations, I did not see anything related to the possibility of a recourse or appeal process.
[English]
Mr. Greene: The only way you could do remedy is you have to amend the agreement. I can’t see you can do it.
What we’re suggesting is don’t create the situation that needs the remedies. If you don’t give them the powers that this bill would give them — I mean, the bill has lots of good stuff in it, but don’t give them the power to do a search by themselves. Don’t give them the power to question people who want to leave the area. Which means you restore the current legislation, you maintain the current legislation, which says there is an unqualified right to withdraw. If there’s an unqualified right to withdraw, you don’t need a remedy. Let’s just say there’s far less need for remedies.
Where we see the problems arising is people who get profiled or identified because of political views or religion, whatever it is, and they can’t get out. The experience is horrific for them, but there is nothing they can do about it. There’s no recourse to correct it.
[Translation]
Senator Boisvenu: We are in a catch-22, if you will. You say that if the recommendations are accepted, we do not need recourse. On the other hand, if they are not accepted and there is no recourse, we are even worse off.
[English]
Mr. Greene: Well, there’s a problem. What we’re saying is you can’t leave it the way it is. The other option is, okay, give them the powers but then give some kind of recourse. But what is it?
If you look at the consulting group in clause 26.1, that group was never intended to be an arbiter to settle disputes. It was where you can make a concern known and they can bring it to their counterparts and try to work it out, and if that doesn’t work, then they can go the diplomatic channels.
Ultimately, it’s up to the people who are doing it, which is the Americans, to make the ultimate call anyway. That’s not really a remedy. It’s to give you a chance to vocalize something.
So I don’t know what the answer is. It’s a major step, though, we have to remember, that the powers we’re giving are fundamentally changing the nature of pre-clearance areas. It’s one that even the minister says has worked fine for 60 years. Why do we have to go that far?
It’s a real problem because Canadian law applies, but then right in the agreement it says you can’t challenge a decision in Federal Court. Somebody said something about going to the Supreme Court. Well, you can’t get to the Supreme Court if you can’t start at the Federal Court level, because that’s the way our law works; you go Federal Court, Federal Court of Appeal, Supreme Court.
So when you put that clause in the bill that says you can’t review it, if you could review the decision in Federal Court, you could get a declaration that their practice, let’s say, of racial profiling is unconstitutional and a writ of prohibition that stops them from doing it. That’s an effective remedy. That’s what we would do to the CBSA, if they were doing it, because we have jurisdiction to do that. When we give up our jurisdiction to say a traveller cannot bring an action in Federal Court, what are we doing? Then what do they do?
The way that brief is written is to say don’t give them the powers, you won’t need the remedies. I don’t know what the effective remedy would be. I guess to open the door to go to Federal Court would probably be the best, to take out the provisions that they’re not subject to Federal Court.
[Translation]
The Deputy Chair (Senator Dagenais): Mr. Greene, I have a question for you. In Canada, there are currently pre-clearance areas, including one in Montreal and one in Toronto. To your knowledge, has an American preclearance officer abused their powers or acted unreasonably? Has that ever happened before in a pre-clearance area, either in Montreal or Toronto? We are talking about customs on Canadian soil after all.
[English]
Mr. Greene: So if you’re talking about what’s happened at pre-clearance areas,I know the minister made some comment at one point to say there’s never been an untoward incident.
Well, it depends on how you define it. As immigration lawyers, we’ve all had clients come to us — and I’m sure MPs, but I don’t know about senators, too — and get the complaints from people who feel they were abused at pre-clearance areas.
I certainly can tell you stories about clients who encountered an officer who had a very strict view. I had one client who was marched out to the ATM to get the money to pay a fine. He definitely was detained for that purpose, which was illegal.
They stopped that practice. It actually made it to the floor of the House of Commons, that particular incident, because of how they were doing things at the time. That got aired out in public, and the U.S. State Department stepped in to look at it.
There are those diplomatic kinds of solutions. There is diplomacy; it’s just there’s no legal recourse, which is the problem.
Senator McPhedran: I’d like to make sure that I heard you correctly, Mr. Greene, when you said that the committee — or perhaps you, individually — have very closely looked at the Preclearance Consultative Group on which so much has been hung to somehow protect rights.
I’ve gone through your brief, and I don’t think I see detail on that.
First of all, if I may, I’d like to make a request. If we don’t already have that, I’m requesting it, please, for our review. Specific to that, do you have any comments before you must leave today on clarity of the mandate for this Preclearance Consultative Group and clarity on its capacity, if any, to actually deliver remedies to Canadians who inform them of their concerns?
Mr. Greene: It’s not mentioned in our main brief because it only came up at the house when they came up with this idea of clause 26.1 that you can advise that group.
The group is created, and you can see it in section 17 of the agreement itself. I do encourage you to look at it. Remember, you’re all being told your hands are tied by this agreement. It might be worthwhile having a look at that agreement.
You can see that that agreement, that group wasn’t set up to be — I don’t think it was set up to resolve complaints. One party could go to the other party and say, “We’ve got a concern,” and the two parties get together and see if they can work it out. If they can’t work it out, it goes upstairs to diplomatic channels. That was the way it was done.
It seems to be in the context of officers misbehaving, perhaps, and the possibility of them being charged in one jurisdiction or the other and working out how that’s going to be done.
I don’t know if it was intended to do more than that, because the act, when they went to put the agreement into the bill, says nothing about it until the house added clause 26.1. It wasn’t a mechanism — it didn’t look like a mechanism, unless I’m missing it there somewhere. Maybe it’s buried in there.
It’s not to say that it couldn’t be massaged into something more meaningful if it had some decision making power, like saying, “Going forward, this is going to be the policy on how we do this kind of search,” or whatever it is. Maybe. But right now it doesn’t seem to have any teeth to it.
Ms. Jafari: If I may briefly add, the CMLA has prepared an updated brief for the Senate. I apologize; I don’t think I’ve sent it off yet. You’ll have that shortly.
I also draw your attention to the joint brief that the Canadian Muslim Lawyers Association, the National Council of Canadian Muslims and the International Civil Liberties Monitoring Group put out to the house committee. That still stands. Those recommendations all still stand. We hope that it’s relied upon for review under this committee.
[Translation]
The Deputy Chair (Senator Dagenais): I would like to thank our witnesses. Thank you, Mr. Greene, Ms. Terroux, Ms. Hawi and Ms. Jafari.
For our third group of witnesses this afternoon, we welcome Mr. Tim McSorley, National Coordinator of the International Civil Liberties Monitoring Group, and Mr. Josh Paterson, Executive Director of the British Columbia Civil Liberties Association. Welcome to the Committee on National Security and Defence, gentlemen. If you have a presentation, we will start with Mr. McSorley, followed by Mr. Paterson. The senators can then ask questions. Please go ahead, gentlemen.
[English]
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group: Thank you very much for having us here. As the chair mentioned, I’m with the International Civil Liberties Monitoring Group. We are a coalition of 40 organizations across Canada that look specifically at the impact of national security legislation and anti-terrorism laws on civil liberties in Canada. I’m happy that I can speak here today on behalf of our members.
As Ms. Jafari and Mr. Greene have mentioned, we have kind of coordinated a bit, so I express the same concerns. We hold the same concerns that Mr. Paterson will be raising today and that Mr. Greene and Ms. Jafari brought up. I will focus on two parts of the bill so that we have good coverage of the entire bill.
To start, I would like to speak about Part 3 of the bill, regarding the Criminal Code amendments regarding the carrying of firearms by U.S. pre-clearance officers in Canada. As many Canadians across the country have expressed their concern, we are also concerned that this law would create amendments to the Criminal Code that would allow for U.S. pre-clearance officers to carry firearms in the pursuit of their duties.
Essentially, our concern is that they will be operating on Canadian soil. They won’t be working in tandem or in conjunction all the time with Canadian officers, and so they will be carrying those firearms unsupervised. Currently, Canadian customs officers in airports do not carry firearms; it’s restricted. We’re concerned that the ability to carry firearms would be extended to U.S. pre-clearance officers when even Canadian CBSA officers are not carrying firearms in similar situations in Canadian airports.
We have been told that the amendments would essentially create reciprocity. That means that U.S. pre-clearance officers would be able to carry firearms in the same instances as CBSA officers. Our concern is that this would mean, for example, if CBSA officers carry firearms in airports — and we know that their union is currently asking for the ability for CBSA officers to carry firearms in airports — then automatically U.S. pre-clearance officers would also be carrying firearms in airports. We haven’t seen any justification for why this should be. We are very concerned that these Criminal Code amendments would go through, especially because of the lack of redress that’s been raised by our colleagues throughout today. We would be very concerned that this right would extend to these officers without more in-depth debate and without greater protections for travellers going through pre-clearance zones.
As I mentioned, currently CBSA officers don’t carry firearms. That’s for good reasons that have previously been set out through debate around the Customs Act. We would be concerned that we would see this going through as an amendment in a pre-clearance bill when a better situation is that if we do have that eventual debate on allowing customs officers in Canadian airports to carry firearms, then at that point we can maybe consider whether or not it makes sense to extend that to U.S. pre-clearance officers. To include it in this bill is highly problematic. We lay out certain conditions for that in our brief. Ultimately, we believe that that section should simply be removed from the bill and that we shouldn’t be considering extending the possibility of carrying firearms to pre-clearance officers at this point.
The other part of the bill that I want to touch on is Part 2, regarding the establishment of Canadian pre-clearance zones in the United States. We have a few concerns that we share with other organizations. First just to say we’re not against and actually we think it would be favourable to have Canadian pre-clearance in other countries, including the United States, but we’re concerned about how it’s being brought about in this bill for a few different reasons.
Just before I get into those specific reasons, again, fundamentally, the review of this bill today and at other hearings has focused on U.S. pre-clearance zones in Canada. Canadian pre-clearance zones aren’t yet on the table, so we seriously question whether or not we should be considering deciding on the rules around Canadian pre-clearance zones in the United States at this point, or whether it should be considered under a future bill when we actually are looking at bringing Canadian pre-clearance zones, especially because this bill would speak only to Canadian pre-clearance zones in the United States. But if I’m not mistaken, there has been mention that it would also serve as a kind of framework for how we would bring in pre-clearance zones in other countries. That isn’t reflected, and those concerns aren’t reflected right now in Part 2 of the bill.
So just on some of the specifics of what we find problematic with Part 2 of the bill, first, it appears to provide broad abilities to bar permanent residents from returning to Canada. As Mr. Greene pointed out, permanent residents have a right to return to Canada, and currently under Bill C-23 it’s not clear exactly what will be able to be used to reject the ability for permanent residents to return by a pre-clearance zone. They would have to go to a land border crossing, which we find is onerous if you’re flying back from Florida and told you cannot board the plane. Then you have to present yourself at a border crossing. How do they get by land to that border crossing?
Similar to Mr. Greene, we are also concerned that we are off-loading and what the repercussions would be if a permanent resident is denied the ability to go through a pre-clearance zone and return to Canada. They would then be on U.S. soil and possibly at risk of perhaps detention or other issues in the United States because there aren’t rules currently on how the information that would be garnered through a rejection at a pre-clearance area in the United States might be shared with the United States agents. We don’t find there are enough privacy protections in that section of the bill.
Finally, on that point, the minister has said that it would be an issue of gross criminality. That’s not outlined in the bill, so we would be concerned that it wouldn’t actually just end with gross criminality and, as Mr. Greene mentioned, could be expanded to be in situations of national security and other concerns. Therefore, we think there are significant problems with that part of Part 2.
Then finally on Part 2, there is also the issue that pre-clearance areas would be considered Canadian in terms of customs and security, but would not be considered Canadian in terms of immigration and refugee law. For example, it explicitly states that if you present yourself at a pre-clearance area, that is exempt from refugee protection. We find it highly concerning that there would be a double standard at pre-clearance areas, that if we’re bringing in one part of Canadian law we wouldn’t be applying another.
It has been mentioned already that in the United States the Safe Third Country Agreement would be in play, so it would raise questions about whether or not at a land or pre-clearance area they would be able to claim asylum. As with many other organizations, we’re concerned about the impact of the Safe Third Country Agreement and don’t think that should impact our decisions here. Again, it’s that question of whether or to what degree this will be setting the precedent for pre-clearance areas in other countries where we don’t have those kinds of agreements and where there are significant concerns that such a restriction would mean that individuals who would rightly be claiming asylum in Canada would be blocked from going through a pre-clearance area and that that could be used as a kind of forward frontier in Canadian immigration and asylum matters.
I’ll end my presentation there. I’m happy to answer questions on this, but our major concerns are also fundamentally with the redress issues in this bill and with the way the bill was negotiated, the concerns around the fact that it’s based on an agreement that wasn’t discussed and debated publicly, and now we’re being told that hands are tied in terms of what amendments can be brought. I want to make it clear that those are our fundamental concerns on this bill, but these are some of the specific areas that, along with others, we share concerns about.
Josh Paterson, Executive Director, British Columbia Civil Liberties Association: Thank you very much, senators, for the invitation to appear on this important matter. We have filed a detailed brief in which we acknowledge our support for pre-clearance and the effort to expand it to more Canadians and businesses. That being said, the BC Civil Liberties Association has significant reservations about this bill. I’ll focus my time on just a few, as colleagues have spoken about others.
The minister suggested to the committee earlier in testimony that the powers given to U.S. agents under this bill are a small change from the status quo. With respect, we disagree with the minister very strongly. This bill gives significant new powers to U.S. border agents to question, search and possibly detain travellers, even when they decide not to go to the U.S. It does so at a time when the U.S. government and administration has put the world on notice through its words and in its actions that it intends deliberately to act on its borders in a way that is discriminatory, particularly towards Muslims and racialized minorities. It has indicated that it is suspicious of and misunderstands the rule of law and the role of courts. Everything about the current context suggests the need for serious caution here.
The first and overarching matter of concern is, as others have pointed out, the lack of remedy for potential rights violations, or torts, for that matter, under this bill. As you have heard, the government repeatedly emphasizes that the U.S. officers will exercise these new powers under the umbrella of Canadian law, the Charter and the Human Rights Act. The minister testified here that this is “about as strong a protection as you could possibly have.”
With respect, the protection afforded by this bill is unacceptably weak. As we’ve already heard here today and from Department of Justice counsel earlier, it will be very difficult for anyone to obtain a remedy against the United States for violations of these human rights guarantees. Short of serious injury, property damage or death, the State Immunity Act will operate, as a matter of law, to protect the Government of the United States from civil remedies.
We understand the complexity of state immunity, but still this is very problematic. And it gets worse because the bill doesn’t end there. Not only is the United States immune from a wide swath of causes of action, but Canada has made itself immune in this bill. Clause 39(3) of the bill says that the U.S. officers are not Crown servants under the Crown Liability and Proceedings Act, which means that Canada cannot be held liable civilly under the Charter or the Human Rights Act for the actions of U.S. pre-clearance officers, even though those officers are exercising powers given to them by Parliament, exercising Canadian power. It is highly problematic, in our view, for the Crown to delegate coercive power to any third party, including foreign agents, while shielding both itself and the foreign government from liability for the exercise of those powers.
As far as we understand the agreement, the agreement didn’t require Canada to make itself immune from liability. That was something that as far as we know the Government of Canada has chosen to do on its own.
The rule of law demands that where there are rights, there is access to the courts in order to obtain a remedy. This bill offends against that principle. And as we’ve heard today regarding clause 26.1, the Preclearance Consultative Group is designed to talk about collaboration between governments on operations. Maybe they could improve certain things going forward, but they cannot provide any remedy to aggrieved individuals, and it is clearly insufficient.
While we don’t share the government’s confidence that this bill will protect the rights of Canadians under the Charter, we don’t think that the Government of Canada should fear being legally responsible for what happens. We think if they are going to delegate these powers, with which we don’t agree, then they should be liable, and this bill should be amended to remove Canada’s immunity for acts committed using parliamentary delegated powers.
I will turn to strip search. This is one area in which Charter violations are likely to occur. These can be conducted under the bill if there are reasonable grounds to suspect the traveller is concealing anything that is a danger to life or safety, and on the newly expanded ground that the search is necessary from an American perspective for them to conduct their pre-clearance duties, which are an exercise of their powers, not Canadian powers.
The current law only allows a U.S. officer to detain a person for the purpose of a strip search. As you have heard, the U.S. officer cannot actually conduct the search themselves under any circumstances.
Now, the minister has said the only real change in this bill is that if a U.S. pre-clearance officer finds there are grounds for a strip search, they may, in exceptional circumstances, conduct the search if a Canadian officer is not available to do so. With great respect to the minister, that isn’t the entire picture. This bill gives increased powers beyond that to U.S. officers.
First of all, if no Canadian is available within a reasonable time, or if a Canadian has set an appointment with the U.S. officers but misses that appointment because they are busy elsewhere in an airport, the U.S. officer will have the power to conduct the strip search. Given that pre-clearance officers can detain and restrain individuals, if necessary, and even use reasonable force to protect life and safety, we can think of no justification for why the U.S. government could not simply wait for CBSA to finish what they are doing somewhere else in the airport and come and conduct the search.
The power doesn’t end there. The bill goes on — incredibly, from our perspective — to give U.S. officers the authority to conduct a strip search if a Canadian officer declines to conduct it. This is deeply troubling. So if a Canadian officer deems a strip search unnecessary, the U.S. officer can go ahead.
We can conceive of no situation in our imagination in which a U.S. officer should be granted the power to strip-search a Canadian, where Canadian officers, having considered the circumstances, have deemed it unnecessary to perform.
We say that this, too, ought to be changed, that this ought to be taken out of the bill, because in the civil contract between the people and the state, Canadians expect that their fundamental liberties will be infringed only in extremely limited and justifiable circumstances. A strip search is, on its face, a highly intrusive invasion of people’s Charter rights, and it is something that should never be delegated by the Crown to a third party.
To conclude, I want to draw the committee’s attention to the brief submitted by the International Longshore & Warehouse Union. We’re also concerned that port workers, who have already been rigorously security cleared by Transport Canada, may nevertheless be denied access to pre-clearance areas based solely on the say-so of the United States government. We would support their recommendation that workers who already hold a marine transportation security clearance, something that already has input from the United States government in the granting of it, be explicitly permitted in the bill to access pre-clearance areas, as required, for the purpose of doing their job.
Subject to your questions, those are our submissions.
Senator McIntyre: Thank you, gentlemen, for your presentations. In your submissions to the House of Commons standing committee this spring, you both raised a common concern about the proposed legislation and how protections granted by the Charter will be implemented and enforced in pre-clearance areas.
How are American officers behaving under the existing pre-clearance agreement, and are there instances, or many instances, of U.S. officers ignoring Canadian law as they go about their duties?
Mr. McSorley: I’d mention what Mr. Greene said in the previous session, and Ms. Jafari too, namely, that we hear regularly that there are concerns. As Minister Goodale said, the system has been working well. However, we hear regularly from people who run into problems at the border, including in pre-clearance zones. Today on CBC Radio there was the case of Amal El-Mohtar, an award-winning Canadian novelist who travelled to the United States last week. She went through pre-clearance, was subject to secondary screening on very questionable grounds and was asked a whole range of questions that we find very concerning. They were highlighted today on CBC Radio.
Our concern is that perhaps she could have used the right to withdraw. Not many people right now understand that they have a right to withdraw from pre-clearance zones, but that could possibly have been used. Then, she may not have been subjected to that secondary screening. That would have meant that she would have missed her flight and would not be able to continue on to the United States, but at least she wouldn’t have had to go through that.
With Bill C-23, she would not be allowed to do that and would have to answer the fallout questions, which then opens her up to what we feel would be undue questioning, possible detention and escalation, moving towards searches and things like that.
Already today, Ms. El-Mohtar was saying that she was forced to unlock her cellphone and that it was taken away from her for two hours. She doesn’t know what was done with her phone for those two hours. She was given a slip saying that it may have been cloned by U.S. agents, that the information may have been copied.
There are still significant concerns about how pre-clearance officers act and what happens in pre-clearance areas. Bill C-23 would make it worse in the sense of expanding those powers and not providing any kind of redress system.
Senator McIntyre: I want to go back to the Charter protections. When the minister appeared before this committee last week, he outlined a number of ways in which Charter protections will be ensured under Bill C-23, and I’ll just point out three.
These include the training of U.S. officers in the Canadian legal framework; second, provisions of the agreement itself, such as the provision that an officer may not “unreasonably delay” a traveller seeking to withdraw from a pre-clearance facility; and, finally, the fact that the Canadian government can raise directly with the U.S. government any concerns about the actions of particular American officers.
My question is this: How realistic is it that the U.S. officers will simply act tough over all of these provisions, even if it may have negative implications for the Canada-U.S. relationship?
Mr. Paterson: Thank you, Senator McIntyre. The training is a good thing. We talked about training at the Commons committee. That was put into the act, and that’s fine.
That being said, the fact that the Canadian government could raise directly with the American government issues in pre-clearance provides no remedy to anyone. It may be a positive thing to make forward-looking changes. We don’t say, for example, that this Preclearance Consultative Group will have no use if it hears about issues going forward. They may make changes to operations going forward. That’s fine. But whether it’s a bilateral meeting between a minister and a secretary, or meetings of top officials, they are not going to be empowered to provide individual remedies. Frankly, I doubt whether an individual case would find its way to the bilateral table for remedy.
The Ontario Human Rights Commission put out a report this year on racial profiling. It looked not only at policing in Ontario but also at border crossings. They reported just this year that 60 per cent of the Muslim interviewees indicated that they had experienced what they considered to be unfair treatment while travelling. The National Council of Canadian Muslims says that fully 50 per cent of all the complaints they receive on their civil liberties hotline relate to issues at the border. Although we hear that most of these things go on without incident, that doesn’t eliminate the fact that there are significant problems.
The third thing you mentioned is the “not unreasonably delay” provision, and doesn’t that make it better? From our perspective — and the University of Toronto Faculty of Law shares our perspective on this — in law, there are two states of being: you are either free to go or you are detained. If you are not unreasonably delayed, but if you are forced to stay and, moreover, forced to answer questions, you are already having your Charter rights violated as an arbitrary detention, because there was no reasonable cause to hold you in the first place. That solution, if offered as a solution to Charter violations, is in itself, in our view, a Charter violation.
[Translation]
Senator Boisvenu: Welcome, Mr. McSorley and Mr. Paterson. My first question pertains to your fundamental opposition to officers carrying firearms. In the past ten years, we have seen a shift in direction by customs officers. The Senate and House of Commons now have armed officers. Canadian customs officers who were not armed 10 years ago are now armed at the borders.
So there has been a change in nearly all G20 countries. The people who guard our borders are armed, no doubt owing to the rise in terrorism. So I am trying to understand the basis for your opposition to customs officers being armed.
[English]
Mr. McSorley: Thank you, Senator Boisvenu. I’m not as familiar with the entire history of the debate around CBSA agents carrying firearms in Canadian airports. My understanding is that the issue essentially is that people are screened as they are going into airports. There isn’t a concern that a CBSA agent will need a firearm in those areas. There’s been a debate and a decision already up to this point that CBSA officers in airports, at least doing customs clearance, do not require firearms.
Essentially our concern is that because we’ve decided —
[Translation]
Senator Boisvenu: On what basis do you state that officers do not need firearms? Looking at various parts of the world, in all countries with airports where acts of terrorism have been committed, nearly all have given their customs officers firearms for security reasons. On what basis do you oppose this nearly global move to provide security for air travellers using methods that terrorists use? On what basis are you opposed to our officers being armed?
[English]
Mr. McSorley: I have to give my apologies for not having a complete answer to this because I wasn’t prepared to answer why CBSA and Public Safety haven’t decided to arm Canadian customs agents in airports. Essentially, it’s a question of when it is essential to carry a firearm and when it isn’t. Currently it isn’t essential for customs officers in Canadian airports to carry firearms.
Our question essentially is if we’ve made that decision that they shouldn’t be allowed to carry firearms currently, then why should we be extending that right to U.S. pre-clearance officers?
I agree we can have discussions about whether or not Canadians carrying out a similar function in Canadian airports should be carrying firearms, but currently they do not. Our stance is that this power shouldn’t be extended to U.S. pre-clearance officers until we have a further discussion about whether or not Canadian agents should be carrying firearms.
[Translation]
Senator Boisvenu: The witnesses have said this since the start of the meeting: For all transportation, this law recognizes U.S. authority on the parts of Canadian soil designated for that purpose. Do you agree that arming officers or not is up to the U.S. authorities and not the Canadian authorities?
[English]
Mr. McSorley: I would disagree with that. We also disagree with the idea that these territories should be essentially considered a U.S. territory in the pre-clearance zones. For that reason, we wouldn’t think that it would be up to the U.S. to decide whether or not to arm them.
[Translation]
Mr. Paterson: In our opinion, it is not a matter of principle. We have no fundamental objection to the American officers being armed. It is a matter of them automatically having the privilege of being armed when Canadian officers have the right to do so in that space. In our opinion, it is not clear that, every time a Canadian officer carries a firearm, the American officer must absolutely have one also, especially in cases where matters of judicial remedy, monitoring and the responsibility of these officers are very problematic. If there is a threat or a good reason, they can have firearms, but not automatically; that is problematic.
[English]
Senator Richards: Thank you very much for being here. You answered my question, but I thought that a Canadian officer was obligated to give the okay before a strip search was allowed in the pre-clearance zone. They’re not?
Mr. Paterson: No, they’re not. The act is explicit that if the Canadian officer declines to conduct a search, the American can go ahead.
Senator Richards: Is that a new amendment to the law?
Mr. Paterson: Currently, Senator Richards, no American officer can conduct a strip search, period. The Canadian has to come. If they don’t show up, if they say no, whatever else, the strip search can’t happen. The minister has pointed out to you that in the 60-plus years, I think he said, no Canadian has declined to do it when asked.
That has no connection to whether or not we should allow them to do it when that permission is declined. This is important. We’re not objecting, by the way, to the expansion of the grounds, but the grounds for strip search are being expanded from health and safety and to see whether or not you’re lying to strip searches for the purposes of pre-clearance.
The pre-clearance stuff is all the American powers. How much fruit do you have? Which farm are you going to? Do we think you’re actually going to that conference or not? We’re expanding the grounds.
The Canadians may now have more reasons to say, well, strip-searching you is fine to see if you have a bomb on you. Strip-searching you because I don’t believe that you’re headed to the University of Oregon to teach a course, maybe I decline now, and now the Americans will have that power.
Senator Richards: Thank you.
Senator McPhedran: I have a question for our witnesses, but I have a very quick question for the steering committee, the clerk, and that is this: Is the minister coming back to this committee? Or was his presentation last week the one and only presentation?
I want to state for the record my regret that that’s the case, since we were getting a lot of information that would probably have allowed us to have a much more fulsome discussion with the minister.
My question to the witnesses is really for putting this legislation in context and offering you an open opportunity to respond on what appears structurally to be an executive agreement made with no legislative process that has been tabled as not only the rationale for Bill C-23, but, if I’m understanding correctly from reviewing the transcripts that have been available thus far, almost a directive that changes can’t be made because we’ve already decided what the law should be.
I want to invite you to comment on that and clarify or correct my impression if I’ve missed something.
Mr. Paterson: Thank you, Senator McPhedran. This is an aspect of this whole debate that we find deeply problematic. Of course, the Crown, the executive, has the right to go to foreign countries and negotiate agreements. That is part of their job.
Senator McPhedran: It happened today in China.
Mr. Paterson: It is Parliament’s job to put those agreements into force, to ratify and consider them. They don’t become law because the Queen and her ministers said so. They become law when parliamentarians evaluate that they are fit to be made into law.
I have continuously heard from very well-meaning parliamentarians in both chambers that they feel as though their hands are tied. I understand how genuine that feeling is, and I understand that we’re dealing with an unpredictable partner government. We’re dealing with a whole host of bilateral issues where there’s a great deal of uncertainty; so there can be a reticence to want to rock that boat.
But this is fundamentally a duty of Parliament to see to it that its enactments are lawful, and that when the Crown is going around making agreements, it’s doing so in a way that comports with our Constitution, or else they shouldn’t be enacted into law.
To be frank, the idea that Parliament might pass some things knowing that there are problems because they feel cajoled into it is deeply problematic and puts the burden onto individual Canadians to have to spend their resources challenging these things in the courts and to be subjected, potentially, to rights violations in the meantime.
Senator McPhedran: With no remedy.
Mr. Paterson: With no remedy or, at least, at very great difficulty.
Someone would have to go to court and say that the whole edifice of this is unconstitutional, I suppose, or the delegation of powers is unconstitutional on its face, because they wouldn’t be able to bring a civil remedy for the action that had taken place.
Senator McPhedran: Could I ask the other witness to respond to my question?
[Translation]
The Deputy Chair (Senator Dagenais): You had not finished? You may answer, Mr. McSorley.
[English]
Mr. McSorley: Thank you for the question, Senator McPhedran.
Our concerns greatly reflect what Mr. Paterson just brought up. I’d also like to add that it is the concern that the changes to pre-clearance on border security aren’t made in a vacuum. We hear all the time and have seen in the history of Canada what happens when questionable laws are put in place that involve our rights at the border. We hear, as Mr. Paterson pointed out, on a regular basis from Muslim Canadians and racialized Canadians that these are regular issues and that it was going on when this agreement was being negotiated.
That also raises a concern that such an important issue as our border issues would be negotiated in an agreement that wasn’t subject to public scrutiny at the time and that now we are being told that Bill C-23 must go along with that agreement.
We think that there are fundamental rights issues here and that there’s a grave possibility that we see an increase in problems at the border. We have to remember also that it isn’t just airports that this would affect but also land crossings, possibly also by boat — they are talking about our cruise terminals — by train and by bus. We have serious concerns about that.
Again, to reiterate, it lays out the new rules around how Canadian pre-clearance zones would be set up. That’s not governed by the agreement with the United States. Again, we’re concerned that that’s being included with this bill and not receiving the amount of scrutiny it should receive.
Senator Griffin: The United States Judicial Redress Act — I’ve asked this of previous witnesses, and I’m asking your opinion of it. That act would afford the same rights to sue and provide increased privacy protection to individuals who are not American residents. If Canada were to be added to that act, would that help alleviate some or any of your concerns?
Mr. McSorley: Our organization hasn’t examined that in depth. We go along with what was mentioned earlier by other witnesses regarding that.
It’s important that we have very clear issues regarding ways to seek remedy at the border in all circumstances. We’d be careful about saying that we could add this to another possible remedy without it maybe being part of the act that we’re concerned with right now. Also, to make sure that it actually does fit with what we’re considering. We’d be concerned about proposing it as an amendment if it’s not clear that it’s tailored specifically to deal with these issues.
Mr. Paterson: I would only add, very briefly, that we think it’s very important that people have a remedy here in Canada as against Canada for the delegation of these powers. So whether you could go to the United States and launch a lawsuit there or whether at some point in the future state immunity is bent so that there is a greater opportunity to have remedies against the United States here in Canadian courts. The world in which we’re dealing is one where this bill says there will be no remedy against anybody. That’s our concern.
Senator Brazeau: Thank you for being here and for your presentations. The minister was here last week, and a question was asked of the minister about, obviously, U.S. officers having to be trained about the Charter, other Canadian laws, et cetera.
In reading this piece of legislation and when we’re talking about the whole issue of training, it leads to more questions than answers as to who will be doing it, how it will be done, how it’s going to be measured, et cetera.
Do you believe there are safeguards in this piece of legislation that, in essence, will lead us to believe that U.S. officers, when trained, however they are trained, will in fact and in practice respect Canadian laws?
Mr. Paterson: I have no doubt that many of them will try, but it is very difficult.
In our brief, we talk about this training. We say it has to be very robust, but we observed that even Canadian police officers who will train over the course of years over their career mess it up.
There was a recent report from the Civilian Review and Complaints Commission for the RCMP on policing in northern B.C. Strip searches in northern B.C. were being conducted in a way that wasn’t in accordance with Canadian law. It wasn’t even in accordance with RCMP national policy or B.C. policy. They were doing it a whole different way in northern B.C., and some of the officers weren’t even following their local policies.
This is not to cast aspersions on officers or police officers. It’s difficult to keep track of all of these things, but at least where Canadian officers are concerned, we know what the remedies are.
While we’re pleased with the addition of a commitment to training in the bill, we are very concerned about the adequacy of that absent a remedy.
Mr. McSorley: That, essentially, is our position as well. We don’t doubt the good intentions of U.S. pre-clearance officers, despite the concerns that we have about rights at the border, but no degree of training keeps people from making a mistake.
As we’ve seen with the pushed out greater review, accountability and oversight of Canada’s own national security agencies just in the last months, we think it’s important that there are redress, remedies and accountability for any U.S. officers that would be carrying out similar activities here in Canada.
[Translation]
The Deputy Chair (Senator Dagenais): I would like to make a brief comment by way of conclusion. I have the feeling that this renegotiation with the Americans is utopian, unless we wait another four or five years.
I am very familiar with the concerns regarding the Jean-Lesage airport in Quebec City. We have been waiting for this for a long time. The delay in creating the preclearance zones will certainly disappoint a lot of Quebecers. I am also thinking of Billy Bishop airport in Toronto, among others, and Montreal Central Station. People have been waiting for these preclearance areas for a long time.
Would you agree that, without these preclearance areas, Canadians travelling to the United States will experience the same problems on U.S. soil?
Would you agree that, on an individual level, not much will change? The purpose of creating the preclearance zones is to facilitate travel for those going to the United States, is that not true?
[English]
Mr. Paterson: Of course, that’s the aim of pre-clearance. I’m very sympathetic to folks in Quebec City and in other locations in the country where their travel to the United States may be more inconvenient. Perhaps they will have pre-clearance if they fly through another Canadian airport; perhaps they will face border control at airports in the United States.
The fact that with the status quo some Canadians continue to have that inconvenience does not provide to me and to our organization a solid basis to justify the creation of a regime across the country that, on its face, as far as we are concerned, has significant threats to the Charter rights of Canadians. Something substandard in part of the country is not a reason to expand substandardness to the rest of the country. Canada, at the time of the agreement, ought to have fought harder to preserve these rights. And if the United States genuinely wanted to expand pre-clearance and Canada genuinely wanted to do it too, we hope they could have come to a different outcome. That isn’t, obviously, what happened.
I just have a hard time feeling that Canadians in other sites in the country should be stuck with a potential violation of their rights in order to hasten travel for some other Canadians. I concede that it’s a difficult and thorny balancing question, but that’s where we stand on it.
Mr. McSorley: Essentially, we feel the same way, that ideally we would have pre-clearance in Quebec City and in other airports and would be able to consider expanding that to land and water travel as well. I’ve taken land transportation and it is an inconvenience to get off a bus and have to go through the system at the border instead of perhaps going through pre-clearance earlier.
But, as Mr. Paterson was saying, we feel that the issue is that this agreement wasn’t negotiated properly in the first place, and more should be done to ensure the protection of Canadians’ rights and other travellers’ rights going through pre-clearance. It’s a very thorny issue right now.
I know the ambassador is speaking next. Perhaps there could be more discussion about what kind of efforts have been made, if any, to discuss some of these specific concerns about the agreement and how difficult it would be to renegotiate that.
Obviously, we’re in a different political context, and we recognize that, but at the same time, we wouldn’t be able to support the bill as it is, as Mr. Paterson was saying, because of the fact that it changes the regime across the country.
[Translation]
The Deputy Chair (Senator Dagenais): Thank you very much, gentlemen. That concludes our third witness group. We will now welcome the Canadian Ambassador to the United States. Welcome, ambassador. Thank you for accepting our invitation. Our last time slot is entirely for you. Without further delay, you have the floor. We will then move on the questions from senators.
[English]
David MacNaughton, Canadian Ambassador to the United States, Global Affairs Canada: Thank you very much for inviting me.
The issue of pre-clearance is important for communities right across the country — for Quebec City, Billy Bishop airport and Montreal in terms of the Montreal and New York train, and it is also important out West for the Rocky Mountain Express and various communities that could benefit from increased pleasure boating traffic.
Also, I think it lays a framework for some improvements in terms of pre-clearance of cargo, which I think is going to be extremely important for the future to make our country more competitive and speed up both passenger traffic and cargo traffic.
Look, I would rather spend my time here answering any questions, observations or comments you have. We worked pretty hard last year to try to get the Americans to pass their mirror legislation. Given what we’re seeing at the present moment in terms of getting their budget and their tax package passed, the fact that we were able to get unanimous consent on this particular piece of legislation in both the Senate and the House of Representatives I think is one of the things that I was pretty proud of last year. Anyway, I’m happy to answer your questions, so by all means.
Senator McIntyre: Thank you. Nice to have you with us, ambassador.
In the past you have obviously spoken about the importance of this agreement in facilitating legitimate trade and travel across the Canada-U.S. border. As you know, legislation to implement this agreement was introduced in the House of Commons in June of last year but then sat at first reading for nine months. Was that a source of frustration for you? What efforts did you have to make to get this legislation moving forward in Canada?
Mr. MacNaughton: I did comment before the Senate previously that I was hoping things would have moved along more rapidly than they did. But in any case, I respect the right and the powers of the House of Commons to take their time to consider all the aspects, as I do for you in the Senate to do the same thing. I must say, I was urging people to deal with it more quickly, but at the end of the day, they are elected to do their jobs and they thought they were doing their jobs properly.
Senator McIntyre: Perhaps a supplementary question. Do you know if the government has an action plan for follow-up to harvest the benefits of this agreement?
Mr. MacNaughton: Discussions have been ongoing between Jean-Lesage airport and Billy Bishop airport in terms of talking to the CBSA and to Customs and Border Protection in the United States. I think certainly in terms of the Billy Bishop airport, I would expect that that pre-clearance could move ahead reasonably expeditiously. I’m not sure at what point the discussions are at with Quebec, and I know there have been some discussions between people in Montreal and customs and border patrol in terms of getting that facility going. I’m not up to date on exactly where those discussions are.
[Translation]
Senator Boisvenu: Your Excellency, welcome to the Standing Senate Committee on National Security and Defence.
We heard earlier from the Canadian Bar Association and the Barreau du Québec, which seem to be fairly concerned about compliance with this law and upholding the Canadian Charter of Rights and Freedoms.
These witnesses made a number of points which I consider debatable. We would have liked to have received that information before we met the minister. Unfortunately, we had already met him before we received that information.
I am referring, among other things, to the loss of Canadians’ right to withdraw which was in the previous act, and the lack of recourse in the event of dissatisfaction.
A number of criticisms of this bill have been made today. The Canadian Bar Association and the Barreau du Québec have mentioned 17 possible amendments. When senior lawyers appear before us and say that 17 amendments are needed, that means the bill has weaknesses.
I would like to hear your thoughts on the loss of the right of withdrawal and the lack of recourse, among other things. How can we manage that?
[English]
Mr. MacNaughton: Well, I don’t quite understand, frankly, some of these concerns. When one decides that you’re going to go to the United States of America, you have a choice. If I decide I’m going to go from Billy Bishop airport to Washington, D.C., which happens to me a lot, right now I get on a plane and when I land in Dulles, I’m on American soil and I have no right to recourse. If they decide they are going to search me, I’m there in the United States of America; I can’t get out until they have done with me whatever they are going to do with me.
If we get pre-clearance, I would go through that customs inspection in Toronto, and I have certain rights there that would certainly be more than I would have under the previous scenario. In other words, I have no rights now. When I get on that plane and I land in Dulles, I’m there and I can’t decide to turn around and go back without them restraining me. If we have pre-clearance, while there are certain limited applications in Canadian law, I still have more rights if I have pre-clearance than I do if I get on a plane and go to Washington, D.C., right now.
The problem we have now is, if we introduce a whole series of amendments, we would have to go back to the drawing board in renegotiating everything with the Americans and getting new legislation in the United States.
[Translation]
Senator Boisvenu: So, to some extent, you agree with the lawyers who appeared before us and said that, under this bill, Canada is losing its authority, its autonomy at airports on Canadian soil?
To your mind, if I travel by air and do not go through a customs clearance area but rather through a regular clearance area, when I land in Texas or New York, for instance, and I am on American soil, they have all the powers. I understand that.
These powers will now be extended to our airports. When I lose the right to withdraw — and I do not have the right to withdraw — and I am in Texas or New York, as I just said, that will apply at our airports on Canadian soil. So there is some loss of autonomy for Canada under this bill.
[English]
Mr. MacNaughton: I must confess that I don’t understand the logic. First of all, there is some right to leave the thing. There are certain things they will want you to do, but you will have some protections, as I understand it.
The reality is you have decided you’re going to go to the United States of America. The only thing that happens in terms of pre-clearance is it makes it an awful lot more convenient. I can fly from Billy Bishop airport or from Quebec airport into Reagan or into LaGuardia, whereas at the present moment that isn’t open to me.
So the questions really are these: Do you want to make this more convenient for Canadian travellers? Do you want it to generate more economic activity? Do you want to have more flexibility for those people who live in Quebec City, Downtown Toronto or Montreal who want to get on a train? Or do you want to make it more inconvenient for them? There is actually no difference in terms of what they are going to have to face when they go through customs. They have some additional protection when we do it here in Canada, and we have a heck of a lot more convenience. So I’m mystified, frankly. I don’t understand the argument.
[Translation]
The Deputy Chair (Senator Dagenais): Mr. McNaughton, what you are saying is that, although the customs clearance area at Jean-Lesage airport in Quebec City or at Billy Bishop airport are on American soil, we are still protected by Canadian laws, which might be more advantageous than going to New York, for example, where Canadian laws do not apply, where U.S. laws apply exclusively. So we can still hope to have some protection because, if someone is detained in a customs preclearance area on reasonable or probable grounds, the person can still call for the Canadian customs officers, who are not very far from the U.S. customs. So the person is still protected by Canadian laws. I also think that, when the Minister of Public Safety, Mr. Goodale, appeared before us, that is what he told us, that we are still protected by Canadian laws, which is advantageous.
Would you like to comment on that, ambassador?
[English]
Mr. MacNaughton: I agree with that totally. That is in fact the situation where the pre-clearance would create certain protections that certainly you wouldn’t have under the other circumstance if you didn’t have pre-clearance.
Senator Griffin: Mr. Ambassador, I’m wondering about something like a technical amendment to clarify a situation, something you might see as being acceptable to the U.S. government. For example, the International Longshore & Warehouse Union is asking that clause 17 of the bill be amended by adding an additional clause allowing longshore workers who hold a security clearance under the Marine Transportation Security Regulations for the purposes of performing their jobs at the facility to have access to the pre-clearance area. That amendment would not necessarily alter the legislative intent of the pre-clearance agreement but would certainly clarify the situation as to which port workers have access to the facility by limiting it to only those who have the Transport Canada-issued security clearance.
I would see that being a relatively minor technical amendment. It’s not changing the intent of anything. If an amendment like this were not acceptable to the American government, do you have any explanation why it would not be?
Mr. MacNaughton: I don’t know the answer to that. If this is an issue of clarification as opposed to changing the legislative intent, then there may be a way to have discussions with them without changing the legislation. I just don’t know enough about the specific example you used to be able to comment. All I know is that if we end up making substantial changes, or even any changes to the legislation, as I understand it we have to go back to the Americans, and I haven’t found it particularly easy to deal with them on a whole series of matters of late. You may have noticed.
But I’m happy. We have a good relationship with Customs and Border Protection and Homeland Security. If there is something that requires clarification as opposed to fundamental changes of the intent, then I’m quite happy to have a discussion with them to find out whether or not we can accommodate that.
Senator Griffin: Thank you.
Senator McPhedran: Welcome, ambassador. Thank you; good to see you again.
Mr. MacNaughton: Good to see you.
Senator McPhedran: I want to tweak my question somewhat based on a previous answer that you gave. I’m going to do that, because I noted with great interest that you used yourself as an example of testing the practicalities of the process, if you will.
You, as an example, are one of our highest-ranking, most senior diplomats. You have a diplomatic passport. You are a handsome, white male of a certain age, wearing a very nice suit. Do you think it be the same experience for someone with a different skin colour from yours, someone who didn’t have a special passport, someone who maybe wasn’t wearing a nice suit, or do you think that the experience would be the same?
Mr. MacNaughton: That obviously depends. An awful lot of judgment is given to customs and border officers, both ours and theirs. I’m not going to pretend that there aren’t situations where certain officers may make decisions about what people look like rather than other factors.
Having said that, that will occur regardless of whether that takes place at a pre-clearance facility or whether that takes place when you land in Dulles. My point was not that I’m treated better; obviously I am because of my diplomatic passport and everything else. The fact of the matter is from a choice point of view, in terms of would I want the ability to be pre-cleared before I go to the United States, absolutely. Certainly if someone has a concern about whether or not they are going to be treated badly, I would think it would be better for them to have it done on Canadian soil rather than when they land in Boston, Chicago or Houston.
Senator McPhedran: I would certainly agree, particularly when reading the part of the preamble that says:
Whereas the exercise of any power and performance of any duty or function under United States law in Canada is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
My question to you, ambassador, is whether it is your conclusion that clause 26.1 that has come to us from the House of Commons actually makes it possible to deliver on this very clear statement in the preamble, meaning this administrative remedy, not a judicial remedy, this committee that has been set up that is the pre-clearance committee. How does that comport with the promise made in the preamble to this bill?
Mr. MacNaughton: I think the reality is that we began with the goal of having all of those things protected in the legislation, and the negotiations we had did a good job of protecting those rights. Is there a way in which those could be strengthened? I’m sure there probably is, but I don’t think we would be where we are at the present moment in terms of having got an agreement to facilitate pre-clearance, because there is absolutely no question whatsoever that we are in a better position. A Canadian citizen, regardless of whether they wear a suit like mine or the colour of their skin, is going to be better off pre-clearing in Canada than to do so in the United States. Once they have made a decision of going to the United States, they have more protections in a pre-clearance area than they do in flying into Houston, Texas. Is it perfect?
Senator McPhedran: Is it real?
Mr. MacNaughton: I think it’s real. It’s certainly more real than the alternative. Unfortunately you have to make judgments based on thinking we did the best we could possibly do in terms of achieving the goal that we set out to do, which was to try to give as much protection to Canadian citizens as we possibly could. It’s certainly a heck of a lot more than if they landed in the U.S.
Senator Brazeau: Good afternoon, Mr. Ambassador.
Following up on Senator McPhedran’s line of questioning, if this bill tries to bring more protections to Canadians on Canadian soil, then why is the Canadian government shielded from any civil litigation if anything goes wrong?
Mr. MacNaughton: I don’t know the legal answer to that. The intent of this legislation is to facilitate more passenger convenience and smoother commerce, and also to do whatever one can do within reasonable limits to protect Canadians’ rights. As I say, the choice you make when you decide you’re going to the United States of America is a choice you make. The fact that the pre-clearance affords you certain protections and rights is an additional benefit beyond the commerce and the convenience. The alternative is that if we don’t have pre-clearance, are Canadians travelling to the United States going to be better off than they are? The answer clearly is no.
Senator Brazeau: Thank you for that. I agree. Obviously, the economic benefits of pre-clearance and the convenience to individual passengers are good things. Having said that, there are also things that happen by the time the pre-clearance process takes place.
Talking about the economic benefits, a lot of witnesses have come before this committee and talked about their hesitancy with respect to this piece of legislation because it’s not clear exactly what it will do. It may give more powers to U.S. officers with Canadian citizens.
No pun intended, but do you believe that this piece of legislation, as currently worded, may trump individual rights protected under the Charter and other Canadian laws?
Mr. MacNaughton: Again, the thing this legislation does is it gives more protection and more convenience than the alternative. We can compare this legislation to perfection or we can compare it to the alternative. To govern is to choose. Frankly, my strong view is that this legislation will be a tremendous benefit to citizens who live in the provinces of Quebec and Ontario, and hopefully in Western Canada in terms of train traffic, and hopefully we can open up more pre-clearance sites as time goes on and as the need goes.
I don’t know of any Canadian citizen who looked at this logically who would choose to fly out of a city in Canada and fly to the United States and be subjected to whatever happens when they go through customs in the United States as opposed to pre-clearing here. I don’t know why anyone would make that deliberate choice. In fact, what you see now in Quebec, and one of the reasons why Quebec City wants the pre-clearance, is that Quebecers, people from Quebec City, are travelling to Montreal to get pre-clearance so they can go and fly into other airports. They are making that choice already, and I think what this legislation does is it gives them a broader choice.
Senator Brazeau: To play the devil’s advocate, in other words, we should accept this piece of legislation as is or risk going back to the drawing board and renegotiating; is that correct?
Mr. MacNaughton: Yes.
Senator Harder: Thank you very much, ambassador. I have a couple of questions.
First, pre-clearance is not new. We have had a practice of pre-clearance. You have been our ambassador now for 18 months or so. Have you had any complaints with respect to Canadians travelling through existing pre-clearance facilities?
Mr. MacNaughton: No, none.
Senator Harder: That’s welcome, because I think we have a tradition and a system on which to build. What this is essentially doing, as I understand it from your testimony, is providing an expansion of what exists with enhanced protections, actually.
Second, to follow up on Senator Brazeau: Were the Parliament of Canada to amend this agreement, what prospects and what timetable would you suggest we would be facing to have the United States Congress accept or be prepared to renegotiate this agreement?
Mr. MacNaughton: My expectation would be that if we went back to renegotiate, they would say, “Come around in a couple of years.” I don’t think there would be any appetite for renegotiation on their part at the present moment.
Senator Harder: My last question has to do with the prospect of pre-clearance of goods, which is the opportunity implied in the legislation before us that has great advantage to Canadians, particularly at a time when there are measures to thicken the border. I wonder if you could give us an insight into how, should this bill be passed and the law come into force, you would work with the American counterparts to ensure the coming into force of goods pre-clearance at an early opportunity.
Mr. MacNaughton: One of the exciting opportunities is that there is relatively new technology that allows for pre-clearance of cargo to take place in a very secure way, speed up the process of getting across the border and decrease the risk. We can meet our test, which is that we want to be able to make commerce easier back and forth — and to some degree, the Americans feel the same way — while in no way compromising security but, in fact, enhancing security.
I’ve been briefed on a couple of different technologies. Part of the problem with pre-clearing goods 100 miles before the border is that a truck could go 50 miles, open up the door and put something in it, and how do you control for that?
In fact, technology exists now, some of it Canadian technology, where anybody moving any of the goods, opening the door, changing the temperature — anything like that — would actually register. Customs and border patrol would have access to that technology and know if anything had been changed in the cargo load. You could actually have secure cargo 100 miles from the border and then have a fast lane that goes across the new Gordie Howe bridge. I think there are lots of possibilities. In fact, we have had a lot of discussions with the Americans about this and have engaged American and Canadian business, both of whom are quite enthused about this prospect.
Senator Harder: Thank you.
Senator McPhedran: I’m going to pick up on Senator Harder’s reference to expansion of rights and enhanced protections. I’m going to go back to clause 26.1. It has reference to 22, on strip search powers, bowel movement check, body cavity check and then the whole nature of withdrawal.
But my question will focus on what could very well be a personal experience of mine. Although I share many aspects of your privilege, there is one big difference, and it is that I’m a woman and also that I’m generally seen as a fairly aggressive and mouthy woman.
This has actually happened to me. A number of years ago I was with our defence forces in Afghanistan. I had an Afghanistan stamp in my passport with no explanation as to why I was in Afghanistan. I do a lot of work with the Afghan Women’s Organization and the Canadian Council of Muslim Women, so a quick Google search is probably going to turn up that kind of affiliation.
As I read this law, I see very clearly the statement again in the preamble that tells me that this law is the “implementation” of an agreement that’s already been made, not through any legislative process, through an executive process. But this is the implementation of that agreement.
One of the aspects of what’s being, in my opinion, traded off here — and I want to ask whether there’s an awareness of this, whether it’s been looked at — is that right now a U.S. guard in Canada at the pre-clearance area — let’s just say, hypothetically, it has actually happened — I get pulled out of the line because I have an Afghanistan stamp in my passport, and let’s just say that particular guard does indeed find me a mouthy and aggressive woman and decides that it is appropriate to do a search.
Right now, only a Canadian guard can decide whether or not to do a strip search on me. Under this new law, that option goes to the Americans, and I have absolutely nothing that I can do about that.
That, to me, is not an expansion of rights. That is not an enhanced protection. It is exactly the opposite. My question is, has that been discussed?
[Translation]
The Deputy Chair (Senator Dagenais): What is your question, senator?
[English]
Senator McPhedran: Has that been discussed, that kind of reduction in rights?
[Translation]
The Deputy Chair (Senator Dagenais): I am sorry. What is the question?
Senator McPhedran: The question?
The Deputy Chair (Senator Dagenais): Yes. What is your question?
[English]
Senator McPhedran: Has it been discussed?
[Translation]
That is my question.
The Deputy Chair (Senator Dagenais): Okay.
[English]
Senator McPhedran: Have these kinds of scenarios where, in fact, it’s a reduction of rights been discussed?
Mr. MacNaughton: Let me preface my comment by saying that I think you are assertive and articulate and not mouthy. I have four daughters, and I’ve encouraged them all to be assertive and articulate.
I don’t know the answer. We have discussed at length making sure that Canadians have more rights at pre-clearance than they do at non-pre-clearance sites.
The specific instance that you’re talking about, whether this legislation gives Americans more power than they have at the present moment, I’m not able to comment on that. I don’t know enough about it. But I know that the question I have asked consistently is this: Do Canadians have more rights at the pre-clearance sites than they would if they travelled to the United States and landed in the United States? The clear answer to that is yes, without any question at all.
Senator McPhedran: The question that I was asking be addressed is a different comparison, which I think is at least an equally important comparison.
Mr. MacNaughton: The answer to that is I don’t know the answer to that.
[Translation]
The Deputy Chair (Senator Dagenais): There are no more questions from the senators? Thank you, Ambassador McNaughton, for coming here to appear before the committee.
I understand very well that travelling to the United States requires us to go through a clearance area, at whatever customs point, in order to enter the United States. I would suggest having Canadian preclearance zones on U.S. soil. Perhaps you could negotiate that suggestion with the Americans. I would strongly suggest the Fort Myers airport. I will tell you why later on.
Thank you very much for your testimony, ambassador. I wish you a safe trip back to Washington.
[English]
Mr. MacNaughton: Thank you very much. I must tell you that I think it’s a good idea, and I think we should look at expanding and having Canadian customs in American sites.
I do confess to a certain bias on this subject because my Toronto home is right downtown, and it takes me 10 minutes to get to Billy Bishop. The only trouble I have is when I fly out of Billy Bishop and have to go through Dulles, it is not worth my while. The ability to clear customs in Toronto and fly to Reagan would make my life significantly better. So I do declare a very significant conflict and an interest in this.
I will keep the Fort Myers thing under advisement, for sure.
[Translation]
The Deputy Chair (Senator Dagenais): Thank you very much, ambassador. Thank you, honourable senators.