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SECD - Standing Committee

National Security, Defence and Veterans Affairs


Proceedings of the Standing Senate Committee on
National Security and Defence

Issue No. 34 - Evidence - Meeting of November 26, 2018

OTTAWA, Monday, November 26, 2018

The Standing Senate Committee on National Security and Defence, to which was referred Bill C-21, An Act to amend the Customs Act, met this day at 1 p.m. to give consideration to the bill.

Senator Gwen Boniface (Chair) in the chair.


The Chair: Honourable senators, welcome to the Standing Senate Committee on National Security and Defence. I would ask my colleagues to introduce themselves.


Senator Dagenais: Jean-Guy Dagenais from Quebec.

Senator McIntyre: Paul McIntyre from New Brunswick.

Senator Pratte: André Pratte from Quebec.


Senator Griffin: Diane Griffin, Prince Edward Island.

The Chair: Gwen Boniface, Ontario.

We have a few housekeeping items before we begin. As a reminder to all senators, if you are proposing amendments at the clause by clause, it will now be held on Monday, December 3. It is strongly suggested that you work with the law clerk. It is also suggested to advise our clerk so that he can prepare accordingly. Both of these communications would be confidential.

On another note, and I have indicated this to our first panel, there is a possibility of votes in the chamber during our meeting today. In that case, we will suspend to vote and return once the vote is complete to continue our meeting.

As you know, memberships have been changed as part of a Senate motion. We will welcome Senator Gold, Senator Plett and Senator Pratte to the committee. I note that membership of the subcommittee was not changed in the motion, so it remains Senator Dagenais as chair, Senator Jaffer as deputy chair, Senator McIntyre, Senator Richards and myself.

This afternoon, we continue our study of Bill C-21, An Act to amend the Customs Act. We begin today with two representatives from the Office of the Auditor General of Canada. We have Nicholas Swales, Principal, and Martin Dompierre, Principal.

Gentlemen, you have the floor, to be followed by questions.


Martin Dompierre, Principal, Office of the Auditor General of Canada: Madam Chair, thank you for this opportunity to discuss Bill C-21, pertaining to the Customs Act.

My name is Martin Dompierre, and joining me is Nicholas Swales. We are both principals responsible for the two audits that touched on the subject matter of this bill.

In 2016, we issued a report on the Beyond the Border Action Plan, and in 2015, we issued a report on controlling exports at the border

We will summarize for the committee our relevant audit findings related to the Customs Act. However, it is important to note that our audit work on the Beyond the Border Action Plan was completed in September 2016, and our audit work on controlling exports was completed in August 2015. We have not conducted further work on these topics since then.

In December 2011, Canada and the United States released the Perimeter Security and Economic Competitiveness Action Plan — better known as the Beyond the Border Action Plan. The action plan consisted of 34 initiatives aimed at establishing a long-term partnership between the two countries to enhance security and accelerate the legitimate flow of people, goods, and services across the border.

We estimated that these initiatives had a total planned spending of over $1.1 billion, of which approximately $585 million had been spent as of March 2016.

The audit examined the progress made by departments and agencies in meeting the commitments set out in the action plan, and in achieving results toward the intended benefits. We also looked at how Public Safety Canada reported on progress, performance, and costs in its annual reports.

The action plan had several initiatives that focused on enhancing security. Of the $700 million that departments and agencies had planned to spend on them, approximately $410 million was spent as of March 2016. However, departments and agencies faced challenges in completing a number of the initiatives, and they could not demonstrate that they had improved security at Canada’s borders.

Even when departments and agencies met their commitments for certain initiatives under the action plan, they achieved limited results toward the intended benefits. They also had few performance indicators to use in assessing results.


One of the security initiatives that was not completed was the Entry/Exit Initiative. This initiative, which has a budget of $121 million, is intended to allow the Canada Border Services Agency to track who enters and leaves the country. It was initially planned to be completed by June 2014.

As of March 2016, $53 million had been spent but the initiative could not be fully implemented under the current legislation, which does not allow the exit information of Canadian citizens to be collected, used or disclosed.

Without new legal authority, the Canada Border Services Agency cannot achieve the security benefit of the initiative. For example, the current ability of the agency and law enforcement to identify and prevent high-risk travellers from leaving or attempting to leave Canada is limited.

Nicholas Swales, Principal, Office of the Auditor General of Canada: Let me turn now to the issue of controlling exports. Exports are vital to Canada’s economy, but some are controlled to achieve a range of policy objectives such as protecting the safety and security of Canadians.

Although several federal entities play a role in controlling exports, the Canada Border Services Agency is the last line of defence to prevent goods that contravene Canada’s export laws from leaving the country.

Our audit focused on whether the agency had the necessary information, practices and controls at the border to enable it to implement its enforcement priorities, prevent the export of goods that contravened Canada’s export laws and facilitate legitimate trade.

We found weaknesses in the information, practices and authorities the agency applied to assess export risks, assign its resources and act on its priorities. As a result, the agency missed opportunities to stop some goods that did not comply with Canada’s export control laws from leaving the country.

Limitations on its authorities posed a particular challenge for the agency in examining shipments that were not reported on export declarations. The agency could not open such parcels at random as it could for imports and exports reported on declarations. Agency officials believed this reduced their effectiveness in preventing the export of illegal drugs. The inability to open shipments at random also meant the agency could not assess the level of compliance for non-reported shipments.

The bill before you today includes provisions about the two legislative limitations we raised in our reports.


Madam Chair, this concludes our opening remarks. We hope that our audit findings will be of assistance to the committee in its current review. We would be pleased to answer any questions the committee may have. Thank you.


The Chair: Thank you.


Senator Dagenais: My thanks to our two witnesses for being here. You talked about exports and export controls. You said that the Canada Border Services Agency perhaps does not have the tools at its disposal to conduct better checks. I would like to hear your comments on that.

Mr. Swales: Our report looks at a number of factors. First, the agency has difficulty analyzing all the export declarations because its system is relatively out of date and it is not designed to analyze the risks of those exports. As a result, because of the volume and because of that system, the agency was not in a position to establish that all exports did not pose risks.

Second, when some exports were supposed to be examined, or did pose a degree of risk, they did not manage to inspect them all. About 20 per cent of the exports identified were not examined before they left the country.

We also noted that, at some places, staff members on vacation were not replaced. Those are our comments about how risks are evaluated.

We also talked about the possible impact of their work on exports. The impact of their way of inspecting or holding the exports was, in certain cases, quite significant delays. We conducted a survey among some exporters and told them that it could have a major impact on their business.

Senator Dagenais: Mr. Dompierre, I imagine that you have read Bill C-21. How will it improve the situation of the Canada Border Services Agency?

Mr. Dompierre: We audited the system of data on entries and exits. The program allows them to use the information provided by one country when people leave that country. That approach was made up of four specific phases, two of which are complete. Phases 3 and 4 had to be suspended because the law did not allow them to share the personal information of Canadian citizens. In the report, we pointed that out and indicated that the law would need to be amended to allow those exchanges of information between Canada and the United States.

As part of that initiative, the desire was expressed to broaden the use of information collected by the Canada Border Services Agency so that it can be used by other departments. The report mentions the Canada Revenue Agency, Employment and Social Development Canada and the RCMP. The law will have to be amended if those departments are to be able to use the information collected by the Canada Border Services Agency. In addition, those departments will have to prepare risk assessments that will go to the Information Commissioner for an evaluation as to their use.

That is the observation we made about the Entry/Exit Initiative. The agency had to suspend the initiative because of the limitations in the legislation.

Senator Dagenais: I understand that the bill will help you. Perhaps it is a political improvement. But do you think that it will improve the security of the entries to and exits from the country?

Mr. Dompierre: The goal of the initiative was to increase security at the border between the United States and Canada. If the agency is able to obtain the necessary approval and amendments, it could move to the next phases in order to complete the initiative.

Senator Dagenais: My thanks to our guests for being here.

Senator McIntyre: Thank you for your presentation. Mr. Dompierre, in paragraph 10 of your opening statement, you say that, without new legal authority, the Canada Border Services Agency cannot implement the Entry/Exit Initiative or achieve its security benefits. Can you be more specific about that issue of new legal authority?

Mr. Dompierre: In the context of an audit, as I mentioned, we focused on all the phases of the initiative, in particular one of the later ones, to highlight it in terms of the sharing of information on entries and exits. In order to do that, amendments have to be made to the act. The agency has taken the steps necessary for those amendments to be made. The legislation we are studying today has been amended to allow exchanges of information.

Senator McIntyre: So, legally, the issue is settled.

Mr. Dompierre: I would not say that it is settled. The bill will have to be passed before they can move to the next stages. As our report indicates, the initiative was suspended because those legal elements were missing.

Senator McIntyre: The procedure has already gone before the courts.

Mr. Dompierre: I do not understand what you mean by “the courts.” It is Parliament that —

Senator McIntyre: I don’t understand either. You say that it needs new legal authority. Have court proceedings been started, or will they be? That is all I want to know.

Mr. Dompierre: It is not a matter of court proceedings. New legislation has to be passed by Parliament. Maybe the term “legal authority” was not exact one. Parliament has to become involved.

Senator McIntyre: When you used the word “legal,” I thought you meant court proceedings.

Mr. Dompierre: No, I am sorry, that is not the case. In my opening statement, I talked about legal authority. I may have misspoken by saying legal authority rather than specifying that I was referring to Parliament.

Senator McIntyre: Thank you for clearing that up, Mr. Dompierre.

Clause 2 of the bill gives the agency new powers to collect information. Since this authority is discretionary, not mandatory, the agency will be free to collect the information or not.

What use will the Entry/Exit Initiative be if collecting information is not mandatory? Why give the agency discretionary authority?

Mr. Dompierre: As I understand it, it is one of the cornerstones that allows the agency to collect information and move forward with the initiative. I don’t think I am sufficiently well equipped to answer your question.

During our audit, we examined the performance indicators, the stage of progress of the project in the Beyond the Border Action Plan. In our report, we indicate that the initiative has been suspended because it did not have the legislative action needed to move it forward.

I would not be able to answer you in terms of the advantages. As I have said, the advantages are improved security because we share information with our neighbours in the United States on Canadian citizens entering and leaving the country.

Senator Pratte: My question touches on both aspects, travellers entering and leaving, and exports. If the bell solves the legal problem and gives the agency the powers it needs for exits and exports at the same time, do other problems arise that have nothing to do with the legal authority they did not have, and that would slow the implementation or the effectiveness of these measures?

Mr. Dompierre: We did not observe issues other than the ones that interrupted the initiative. As we understand it, the four phases were almost complete. The last stage was to amend the act in order to allow them to collect and share data.

To our knowledge, when we finished the audit, the agency was ready to move forward with the initiative once the act was amended to allow them to collect the data.

Senator Pratte: Do they have the IT and financial resources to get everything going?

Mr. Dompierre: We looked at the investments the agency made and, yes, some money has been spent. In March 2016, there was more to be spent. That amount is $53 million from a total of $120 million. The tools are in place and the system should be ready to go once the amendments are made.

Senator Pratte: In terms of the export of goods, apart from the lack of sufficient legal authority, were there other problems? You mention that even targeted exports could not all be inspected for all kinds of reasons, including a lack of resources, and so on. Once the legal problem is solved, are there other difficulties from the point of view of staff management and finances?

Mr. Swales: Observations and recommendations were made in our report. In terms of this legislation, the problem is that, without the additional power in the bill, they were not able to do the risk analysis they need. That means that effective border control must be based on a complete understanding of the risks.

The first step was to have the authority to make it possible for the risk analysis to be done, and then to do it. In certain cases, for example, we observed that their third priority was the support they gave to other government agencies. They were not gathering the information they needed from other departments and they were not keeping track of the work that they were doing. That is necessary for them to do this risk analysis. The problems were only in terms of the risk analysis. Doing the analysis they need on the targeted exports is a problem.

They have to do a risk analysis and then examine the exports.

Senator Pratte: Thank you very much.


Senator McPhedran: Thank you for being here. I have a couple of questions about the assessments that you have done previously vis-à-vis the proposed bill and some possible amendments.

There is at present no requirement that border services report to Parliament annually on both the overall application and efficiency of the bill in meeting its goals. If I understand your testimony correctly, to a large part you feel the recommendations you’ve made in previous reports have been addressed by the bill. Therefore, it seems logical that we could look forward to both greater efficiency and effectiveness as a result of the bill.

Would you anticipate, in your particular roles, any difficulty that could be caused by a requirement to report annually to Parliament on the application and efficiency of the bill?

Mr. Swales: We didn’t examine the public reporting provisions of the export control business, though I think to some degree the Beyond the Border Action Plan did. I am not sure we would be in a position to comment.

From the point of view of exports, anyway, changing the law to provide that power will not be enough. Our other recommendations speak to putting in place additional practices which would be necessary to improve effectiveness.

Senator McPhedran: My second question is about regulations made by Governor-in-Council under subsection 93(5).

Within your jurisdiction would you see a problem with there being a privacy impact assessment applied to any regulations made by Governor-in-Council.

Mr. Swales: There are rules that apply to when and how privacy impact assessments are implemented. We didn’t examine them, but the Office of the Privacy Commissioner would be better placed to speak to how a privacy impact assessment should be applied in this instance.

Senator McPhedran: My question wasn’t on how. Given the work you’ve done on the previous reports, would requiring a privacy impact assessment undermine any of the recommendations you made?

Mr. Dompierre: I don’t believe so. It is required to conduct these privacy assessments. As my colleague mentioned, we did not specifically look into that.

For example, we say in the report on the Entry/Exit Initiative, some other departments were interested in using the data collected by CBSA. Therefore, they will have to go through a privacy risk assessment to demonstrate how they will be using the data that will be shared with them.

Mr. Swales: The other observation, I might add, from the export control perspective is that in essence what we were saying was that there were different rules governing how CBSA could deal with shipments that were being exported from how they dealt with shipments that were being imported.

I would agree with my colleague that it’s not obvious to us that conducting a privacy impact assessment would be a problem, given that there’s already a precedent for very similar authorities in terms of goods.

Senator McPhedran: Thank you.


Senator Boisvenu: First, I want to apologize for being late; I had some business elsewhere. Welcome, Mr. Swales and Mr. Dompierre. Thank you for your presentations, even though I was only able to hear a part of them. However, I have read your brief and I have a few questions. I understand that the Canada Border Services Agency is at the heart of the task to keep Canadians secure by controlling entries and exits. We understand that there is a major control problem in western Canada with the fentanyl being imported from Asia.

Point 13 of your brief reads:

We found weaknesses in the information, practices, and authorities the Agency applied to assess export risks, assign its resources, and act on its priorities. As a result, the Agency missed opportunities to stop some goods that did not comply with Canada’s export control laws from leaving the country.

What kind of goods are you referring to?

Mr. Swales: We used two types of information to arrive at that conclusion. When they were examining shipments, they found some problem cases. Where no examination was done, it is highly likely that there were products that were not supposed to be exported.

Senator Boisvenu: Do you have examples of those products?

Mr. Swales: Yes. We looked at the records and reports of other organizations and we noted that the border services in Japan and Australia reported on products arriving on their border that were not compliant. They did not expect them to have been exported from Canada. For example, the Australians have confirmed that significant quantities of illegal drugs were arriving in Australia from Canada.

Senator Boisvenu: Through the mail.

Mr. Swales: Through the mail and by other means as well, especially in containers. As it is illegal to export those products and it is the case that they left Canada and arrived in Australia, it means that a product that should not have left did leave. We also looked at the permits issued by the Department of Global Affairs to make sure that some strategic products can leave the country as they are supposed to. The department allows exporters to make voluntary declarations after the fact when they realize that a product has been exported improperly. Sometimes declarations are made to Global Affairs. Again, that means that products have been exported improperly.

Senator Boisvenu: At Item No. 9 of your report, you mention the security initiative for which the former Conservative government had allocated a budget of $121 million that was intended to allow the Canada Border Services Agency to track who enters and leaves the country. In 2016, only $53 million had been spent. It seems that the initiative was not carried through to its end. The Senate is now studying a bill on firearms and we know that there is a major problem with illegal firearms coming into the country, mostly from the United States, according to what we are told.

Given that the initiative is not complete, can that be a factor in products, such as firearms or drugs, coming in illegally? It is already a plague in some parts of the country.

Mr. Dompierre: I could not tell you whether it is a plague or not, exactly. You mentioned $121 million for the initiative, of which$53 million had been spent in March 2016. I could not tell you the exact sum remaining today, but one of the obstacles that has prevented the department from continuing to implement the Entry/Exit Initiative is that the law did not allow them to collect private data. So Phases 3 and 4 of the initiative have been suspended because of the limitations in the legislation.

Senator Boisvenu: In the part that was used, was there anything to do with firearms?

Mr. Dompierre: The initiative just deals with travellers crossing borders or in airports. In the project’s framework, there was also a possibility of extending the initiative to maritime and rail crossings, but that was put on hold and the emphasis was put mostly on the American borders and in airports.

Senator Boisvenu: I gather that the remaining sums of money, almost two thirds, will not be spent to improve our knowledge of the failures of the system in terms of the entries and exits at our borders.

Mr. Dompierre: I would not be able to express an opinion about the sums remaining. When we finished our audit in March 2016, that was our observation about the remaining money. Now, in November 2018, I imagine that some of that money has been spent, but we did not re-examine what has been spent on the initiative. Our work finished in September 2016.

Senator Boisvenu: In terms of the products you identified earlier, the products other countries consider illegal in their own countries, would it be possible to send the committee the list of those products identified by the countries in question?

Mr. Swales: Yes, for those that have been reported publicly, I think we would be able to send you the source of that information.

Senator Boisvenu: I would like to ask one last question.

The bill deals mostly with the exchange of information on people crossing the borders, but we know that there are also major problems with products leaving the country. I am thinking about Montreal, for example, where there is a thriving business in stealing vehicles and shipping them to other parts of the world.

The Canada Border Services Agency works a lot on the principle of random checking. For example, if 100,000 containers enter the Port of Montreal, they are going to search so many of them, and, if so many people come into Trudeau Airport in Montreal, each time you count to 200 people, you stick on a black label and check them.

There are a lot of approaches for random checking, both for people coming into Canada and for goods coming into Canada. Do you have any comments about the effectiveness of that kind of checking?

Mr. Swales: Actually, with exports, there are very few random checks. Almost all the work is done with targets that have been identified in different ways. For example, since you mention vehicles, the agency learned that there was a problem with vehicles being exported through Montreal. So they put together a team — at the time we were doing our work in 2014, anyway — that focused on and reviewed the information they had. They tried to identify the containers that were more likely to contain a stolen vehicle, for example. Our observations were linked to the work they were doing, and we got quite good results.

Our concern about the random aspect of the checks is that it has to be done from time to time in order to properly understand the risks. It is one thing to understand something that was a problem beforehand and to find out how those exports are done and which companies, for example have acted illegally in the past. However, if there are new cases and you do not have the means to do random checking, in order to be up to date with the situation, it means that you are not able to update your analysis and improve your targeting. That was the concern we had and it was related to the legislation. Without a change in their authority, they were really not able to do that risk analysis by using random checks. This is an essential tool in non-reported exports, which represent quite a significant quantity.

Senator McIntyre: I would like some clarification about the phases of the Entry/Exit Initiative.

Only the first two phases of the Entry/Exit Initiative have been put into effect. The timeline for the implementation of the two latter phases has been pushed back. I also gather that the delay in implementing those phases is specifically because of the decision to extend the exchange of data on travellers’ entries and exits to other departments and federal agencies like the RCMP, Employment and Social Development Canada, the Canada Revenue Agency, and so on. As that decision has raised a number of concerns, can you give us any clarification about it?

Mr. Dompierre: At the outset, the initiative was designed to allow the Canada Border Services Agency to collect data on travellers crossing the borders in order to determine their entries and exits. At the same time, it allows them to identify people who pose a risk when crossing the borders.

The desirability of extending the use of that data was expressed by the departments. For the Canada Revenue Agency, the data could identify people leaving the country who perhaps had not paid their taxes. With Employment and Social Development Canada, people may be enjoying certain benefits but, as a result, they should perhaps not be leaving the country. We did not check that during our investigation, but those are the explanations that we were given during our study. The departments you mentioned wanted to extend the use of the data. In our audit, no other analysis was conducted to understand what prompted those departments to use that information. The information I provided you on the possible use of the data by those departments is more speculative.

Senator McIntyre: Could the information collected be shared with foreign governments, or even with the private sector?

Mr. Dompierre: I do not know. Given the sensitivity of the information collected, I do not believe that it could be shared willy-nilly or with other organizations or countries. The agency will establish the limits on the use of the information by other departments and the way in which it may be used.

Senator Dagenais: Mr. Dompierre, I would like to go back to the illegal exports. Have there been any consequences for those responsible for those illegal exports?

Mr. Swales: We did not look into that.


The Chair: I am just canvassing around the table. Senators, are there any other questions?


Senator Boisvenu: My thanks once more to our guests; you are giving us the opportunity to discuss a really interesting and very important matter.

Madam Chair, perhaps Item No. 14 was covered when I was away. It is about the ability to open parcels at random. I would like to know if the situation around the random checking of parcels has improved or whether it is still a legal grey area?

Mr. Swales: We did not look into that following our audit, but we understand that the bill before you contains the amendments that the practice would need. We did not check whether the practices have changed. However, as long as the authority is not in place, they will not be in a position to examine exports that are not legally declared.

Senator Boisvenu: Thank you.

Mr. Swales: Randomly.


The Chair: Gentlemen, on behalf of the committee, let me take this opportunity to thank you for providing us with information on your two recent audits. We appreciate your input and say thank you very much.

For our next panel we welcome Grand Chief Abram Benedict and Edward Roundpoint, Chief, Kawehnoke District, representing the Mohawk Council of Akwesasne.

Abram Benedict, Grand Chief, Mohawk Council of Akwesasne: Thank you for the opportunity to present today. I bring you greetings on behalf of the Mohawk Council of Akwesasne and the community of Akwesasne.

This is my second presentation on Bill C-21. In October 2017, I presented to the House of Commons Standing Committee on Public Safety and National Security to give members of Parliament a sense of the far-reaching effects the Customs Act has on our community and to share some of the concerns about the proposed amendments.

Today, the District Chief of Kawehnoke, Edward Roundpoint, will cover some of the same points as before. We will start the presentation with some remarks about the unique geographical location of Akwesasne and how much the border and border-related legislation affects us.

We will also want to share with you some ways we have minimized the effects of the border in our community. Then we will talk about some of the principles that guide us in the matters relating to the border, followed by remarks on the amendments to the Customs Act.

Edward Roundpoint, Chief, Kawehnoke District, Mohawk Council of Akwesasne: Thank you for allowing me to speak today. This is my first time addressing this Senate committee.

Today, Akwesasne is a land of borders. The international boundary between Canada and the United States runs directly through our lands. Half of the community resides in Canada, in the provinces of Quebec and Ontario, and half of the community resides in the United States, in the state of New York.

The Mohawk Council of Akwesasne is the governing body for the Canadian territory of Akwesasne. We represent a membership of about 12,500 people. Our members live on both sides of the international boundary in the various districts of Akwesasne in Ontario, Quebec and New York.

If a member wants to travel from one district to another by land, they must cross the international boundary. The only road from Kawehnoke in Ontario to Kana:takon in Quebec, for example, crosses the international bridge that connects Canada and the United States.

Mohawks who are going to work or to school, attending church, shopping or travelling for recreational, social and cultural purposes, must cross the international border and present themselves at Canadian and American customs.

In order to purchase appliances, building materials, automobiles, groceries and other personal items in Canada, our members must often transport goods into the United States and then re-enter Canada.

It is not uncommon for members attending funerals to cross the international boundary several times. A funeral procession might leave the deceased’s home on Cornwall Island, travel over the international bridge and through U.S. Customs to reach the primary community church located in the village on the southern shore of the St. Lawrence.

After the ceremony, they may travel back through the United States to Cornwall Island for the burial. After the burial, they may travel to the New York side of Akwesasne for a family meal before returning home in one of the three Canadian districts.

Mohawks routinely use the port of entry in Cornwall adjacent to Kawehnoke and the Dundee port of entry adjacent to the Tsi Snaihne district in Quebec.

Cornwall is Canada’s tenth busiest port of entry, with approximately 2 million vehicles crossing annually. About 70 per cent of these crossings are Mohawks travelling from one district of Akwesasne to another. That equates to 1.4 million trips through Canada Customs by Mohawks travelling in Akwesasne, or more than 100 trips per member each year. Add to this the trips through the Dundee port of entry as well as transits through American customs.

I am sure you can appreciate the laws of Canada relating to persons and goods crossing the border can have serious consequences for individual Mohawks and for the community as a whole.

We recognize that border security is an issue of national importance for Canada and the United States. It is also an issue of national importance for our community. I want to emphasize that the Akwesasne community and its governing bodies share the concerns of the Government of Canada with respect to national security and public safety.

That being said, we are convinced that Canada can effectively implement border-related policies in a way that is sensitive to the needs of Indigenous communities.

Let me use another initiative to illustrate this. In the 1950s, the St. Lawrence Seaway and Power Project was deemed to be a matter of national importance for the Canadian economy. The project was constructed in record time and is a marvel of civil engineering, but the effects of this project on the Indigenous community, including Akwesasne, were severe and long lasting. We have only this year reached agreement with the Government of Canada on a settlement of our seaway-related claims.

Many years after the construction of the seaway, in 1998, Parliament passed the Canada Marine Act and repealed the enabling legislation of the St. Lawrence Seaway Authority. The new legislation incorporated provisions which we hope help the Government of Canada and the St. Lawrence Seaway Management Corporation to administer the seaway in a manner that is sensitive to Indigenous nations and to communities.

First, the Canada Marine Act contains section 3, which stipulates that:

. . . nothing in this Act shall be construed so as to abrogate or derogate from the application of section 35 of the Constitution Act, 1982 to existing aboriginal or treaty rights of the aboriginal peoples of Canada . . . .

This was an important acknowledgment that our community sits astride the St. Lawrence River and the seaway, and that its rights must be given due consideration.

Second, section 78 makes it an objective of the act to protect the rights and interests of communities adjacent to the Seaway.

I would like to see Parliament incorporate similar principles into legislation relating to the international boundary, including the Customs Act. It is true that the protection of our Aboriginal rights is already assured by section 35 of the Constitution Act, 1982.

Nevertheless, there is room for Parliament to develop further principles to guide the administrative border-related legislation to minimize the effects of the borders on Indigenous nations and communities adjacent to the border.

Mr. Benedict: It’s important to be clear about the relationship between the Customs Act and existing Aboriginal treaty rights. Aboriginal border-crossing rights are adamantly controversial. Our community has asserted border-crossing rights in the courts on several occasions with mixed results, but we haven’t heard the last word.

The British Columbia Supreme Court considered the issue of rights of unregistered Indians living in the United States to enter into Canada to exercise their Aboriginal rights in a decision rendered on December 28, 2017, in the Desautel case.

We will be following this appeal closely because the Immigration and Refugee Protection Act, another crucial piece of border legislation, only confirms that the right of registered Indians to enter and remain in Canada.

This divides our membership into two classes: registered Indians with a statutory border-crossing rights and non-registered members of the Mohawks of Akwesasne. We firmly believe that all our members have the right to travel within Akwesasne.

From the Mohawk perspective, we have mobility rights that have been confirmed by treaties with the Crown since the 17th century. Our first treaties with the Dutch, French and the English colonial powers were related to trade and acknowledged our right to move freely across the borders to trade with Europeans in Albany and Montreal.

Today, the treaty relationship is neglected. Customs officials tend to assume that when Mohawks talk of their treaty right to cross the border, they are invoking the Jay Treaty. This is understandable. Article 3 of the Jay Treaty states:

It is agreed that it shall at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, . . . and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other.

It is important to be clear that the Jay Treaty is not a treaty between the Crown and Aboriginal peoples. It does not grant border-crossing rights to First Nations. The Jay Treaty confirmed border-crossing rights in recognition of the freedom of movement enjoyed by Mohawks and other First Nations prior to the imposition of the international boundary. This was already acknowledged in the treaties concluded with the colonial powers to regulate trade, and particularly those treaties called the Covenant Chain.

Much time has been spent on the question of whether or not the Jay Treaty as an international treaty is enforceable in Canada. Community members raised the issue in the 1950s and the Supreme Court of Canada decided that it is not, but the Jay Treaty still embodies an important principle: The international boundary between Canada and the United States is compatible with the mobility rights of First Nations and with the protection of the rights and interests of Indigenous and non-Indigenous communities adjacent to the border.

More recently, the United Nations Declaration on the Rights of Indigenous Peoples explicitly recognized the need to minimize the effects of international boundaries on Indigenous peoples. Article 36 states:

Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

As we speak to Bill C-21, the Senate also has Bill C-262 which has already passed in the House of Commons. This bill would require the Government of Canada to take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

If and when Bill C-262 passes in the Senate, it will provide further support for the efforts to harmonize the administration of the international border with the rights and interests of our people.

The Mohawk Council of Akwesasne is constantly looking for ways to minimize the impacts of the border on the daily lives of our communities with some success.

School buses transport over 600 students to elementary schools in three districts. The school buses bring the children across the bridge to Cornwall Island and do not have to report to Canada Customs. They go directly to the school.

Emergency vehicles do not have to report when responding to a call. Our ambulance and police services have their headquarters in one of the Quebec districts. When they respond to an emergency on Cornwall Island, for example, they do not report at customs in Cornwall.

Funeral processions are not required to report at the port of entry. There is also an order under the Customs Tariff for the remission of duties paid or payable on goods acquired in the United States and imported into Canada by Akwesasne residents, by owners or operators of duly-authorized community stores, and by the Mohawk Council of Akwesasne or an entity authorized by that council.

We consider the remission order to be a milestone in the relationship between our community and the Government of Canada.

That being said, rules respecting the transit of goods across the international boundary interfere with our cultural practices such as the exchange of game, fish, medicine, clothing and basketry.

The Customs Act includes provisions which single out our community. In 2012, Bill C-38, the Budget Implementation Act, amended the Customs Act to make provision for mixed-traffic corridors, which is essentially a neutral term for a bridge and highway connecting Kawehnoke with the city of Cornwall.

To the best of our knowledge, we are the only community that must report at customs even when we do not cross an international boundary line. We believe that the effects of this legislation are discriminatory.

Today, we look at Bill C-21 with the amendments to the Customs Act to allow CBSA to collect information about persons and goods leaving Canada. This is only one of several bills that have been amended or propose amendment to the Customs Act in this current session of Parliament.

Some of the amendments have the potential to seriously affect our community. Recent amendments give border services officers additional powers at the Cornwall port of entry that are most likely to be used in relation to Mohawk travellers.

The proposed amendments to Bill C-21 authorize the CBSA to collect information about travellers and goods leaving Canada from prescribed sources. In effect, this will allow CBSA to obtain personal information on our members collected by American border officers.

Because our members cross and recross the border on a daily basis simply to travel between different districts of our territory, our primary concern is that the information collected may erroneously report that our members have left Canada for a significant amount of time when in fact they only transited through the United States and returned to their homes in Canada.

Bill C-21 will authorize the CBSA to disclose the information to the Department of Employment and Social Development to enforce the Old Age Security Act. The Mohawk Council of Akwesasne has a memorandum of understanding with Service Canada that is specific to the administration of the Old Age Security Act in Akwesasne.

In closing, I reiterate that we have a vested interest in border protection and cross-border trade. We need meaningful consultation with the Government of Canada on the effects of the Customs Act and other border-related legislation, on the exercise of our rights, on the use of personal information collected from our members, on restrictions on exchange and trade in traditional goods, and on the location of the Cornwall port of entry.

The Chair: Thank you, gentlemen. We’ll move to questions.


Senator Dagenais: My thanks to our guests. Gentlemen, I must tell you that I am very familiar with your territory and your community. In 1900, actually, an unfortunate event happened in your community, at a time when the Sûreté du Québec, the Ontario Provincial Police, the RCMP and the New York State Troopers looked after policing. I had the privilege of working on your territory for about a year and a half. I know the problem with the border on the territory of Akwesasne.

Your territory has been identified many times as a prime location for transporting illicit products. Without wishing to criticize your way of doing things, how can we look at combatting illegal trade and enhancing national security?


Mr. Benedict: Since 1990, which is 27 years ago, there have been many more relationships between our community and all enforcement agencies within our community and around our community.

In 1990, I am not sure that we even had a full functioning police force. We now have a complement of around 45 officers of our own police force, as does the St. Regis Mohawk tribe.

With respect to goods transiting through the community illegally, generally the specific reporting requirements under the Customs Act would probably would not apply because the people moving goods over the border illegally are generally not reporting them or using traditional means to get them across.

With respect to the enforcement aspect, we have continued to build relationships with all agencies, including all the ones that you have listed, as well as some of the other national agencies. We are equally concerned with any products that may be crossing through our territory. We continue to work with our partners to ensure that all risks are mitigated.

I assure you that in 27 years the relationships have strengthened immensely, but we also face some challenges with respect to the border itself. It’s more so in a lot of legislation and impacts.


Senator Dagenais: Tell us what could be done in Bill C-21 to make border security even more effective. You mentioned that you now have a well-organized police force, and thank goodness for that. What could be done to be even more effective?


Mr. Benedict: With respect to Bill C-21, I am not sure the proposed amendments will address some of the issues you’ve outlined. I can tell you that we work closely with a number of national agencies that help with border security.

For the most part Bill C-21 is an information-sharing bill. Some of the risks that exist are mitigated in other areas and in other relationships with different agencies, including the Akwesasne Mohawk Police Services and the St. Regis Mohawk Tribal Police.


Senator Boisvenu: Welcome, Grand Chief, and Mr. Roundpoint. I will continue along the same lines as my colleague Senator Dagenais.

We know that, when the Liberal government came to power in 2015, it committed to systematic consultations for all bills that would affect the lives of Indigenous communities, before they were introduced into the House of Commons or the Senate. Were you consulted on the content of this bill?


Mr. Benedict: Aside from the presentation we did in October 2017, which was an invite, that is the only consultation we’ve had on the development of this bill.


Senator Boisvenu: Consultation means that you are listened to, otherwise it is just providing information. That is the difference between information and consultation. Information is saying what the bill is going to contain, consultation is asking those receiving that information whether there are things that work or do not work for them, and how the bill can be improved to make sure that it achieves the objectives of the government and of the community that has been consulted.

In that sense, did you submit any recommendations or amendments that you wanted to see in the bill to make it acceptable for your community?


Mr. Benedict: In October 2017, we did not provide any proposed amendments that would satisfy both concerned.

As far as the consultation goes, I agree that consultation is much more than one-way information or just information sharing. I think it’s a collaborative effort. Other than today’s presentation and the presentation in October 2017, we have not been consulted on it.

The solution to the impacts of information sharing on our community are not simple. Two-thirds of our community is landlocked by the United States, and no processing happens when crossing that border. Theoretically, you can be in the United States for 10 minutes and back into part of our community on the Canadian portion and not be processed. If this system were implemented, theoretically that person could be gone for days, weeks and years at times.

The solution is not easy. It’s a very unique situation. I am not sure the solution should entirely come from us because the bill and the provisions of the bill didn’t start with us.


Senator Boisvenu: Between 2017 and 2018, you were informed about the bill. What did you do specifically to influence the government to either not move forward with the bill, or to amend it to meet your community’s expectations?


Mr. Benedict: With respect to Bill C-21, specifically, we’ve only had conversations with various members of Parliament about its implications.

Since 2017, we’ve probably hosted four or five seminars and tours in our community that have included various members of Parliament, assistant ministers and deputy ministers.

I am talking about implications of the border. We’ve made known what are the impacts of the border on our community. They were not specific to Bill C-21, but as soon as you are in the community and on the ground you will see that Bill C-21 has some pretty far-reaching implications for our community.


Senator Boisvenu: Aside from the problem you mentioned, that if a citizen from your community crosses into the United States, it will not be possible to determine the length of stay and it can even be assumed that it was longer than it actually was. Does the bill create any other kinds of problems for your citizens?


Mr. Benedict: No, not at this time, but the provision on knowing how long they have been in the United States is huge for us. It’s not small. Akwesasne is the second largest First Nation in Canada. It is the only community that is affected daily, all day, every day, by an international border.

When information sharing starts happening, it will not be one or two people affected by it. It will be hundreds, if not thousands, because of the number of people we have on the border.

I understand that some of the information sharing will be for other federal programs. We have people whose employment insurance will be affected. Another one is Old Age Security. The Canada Child Benefit is another one that could potentially be.

Those are all federal programs. Unfortunately a lot of elders are unemployed or on Employment Insurance. A lot of people will be affected by that information sharing.

Are there any other provisions in the law that we are concerned about? It is specifically around the aspect of when it’s shared and how it is cross-referenced. There’s no way to cross-reference it in our community, unless they go through the Cornwall port, but two-thirds of our community do not have a port to cross into.


Senator Boisvenu: If the bill is passed without further consultations with your community, do you intend to challenge the legal text? Once it is passed, it will have the force of law. Do you intend to challenge the law being enforced on your territory in court?


Mr. Benedict: Our approach to anything like this is obviously not to be in the courts. We have a good working relationship with the Government of Canada at many different levels. We are a community that is always looking to find active and innovative solutions to our challenges, but if we have to then we may.

The reason we have a memorandum of understanding with Service Canada is because we ended up in the courts with them. That was a negotiated MOU, specifically around where people live and how long they have been living there, related to the benefits under the Old Age Security Act.


Senator Boisvenu: Let us start from the principle that a part of the bill is not at all satisfactory for you, including checking the movement of people between Canadian and American territory. You do not intend to challenge this bill before any court whatsoever. Do you intend to submit proposed amendments to the bill so that that factor, the movement of people between the two countries, can be considered?


Mr. Benedict: We would welcome sitting down with members of Parliament or senators to find a solution to what, potentially, could mitigate the challenges that will be created by the bill.

I do not have a solution, unfortunately. I am not the author of the bill, nor am I part of Public Safety Canada or CBSA. These people have the abilities and the resources to find ways. I don’t have a solution. One of the things we have talked about is, perhaps, people of a geographical region being exempted from this. But the problem is that we have Ontario, Quebec and New York. We can’t to do it by postal code, because people travel back and forth over the border, and their postal code may not always be the same postal code.

Can I say the Mohawks of Akwesasne under the Indian Act of Canada? As I said earlier in my presentation, not every Mohawk of Akwesasne is registered under the Indian Act. Therefore, they would not qualify for a certain exemption. It’s not a simple solution to say that everyone from Akwesasne is exempt, because how do we identify them? The definition between whom the Government of Canada considers a Mohawk of Akwesasne and the definition of the people of Akwesasne are totally different.


Senator Boisvenu: As I understand it, the easiest solution would for you would be for the law not to be in effect on your territory.


Mr. Benedict: Potentially, but again it is how we identify the area. Is it geographically? Is it postal code? Is it by an Indian registry? Those are imperfect solutions as well.

The Chair: I would like to ask a question as a follow-up to Senator Boisvenu. I know your community very well. I have been there a number of times.

I want to take a moment to salute your police service. I watched it grow into what it is today, which is one Dooley could be very proud of.

Upon implementation of Bill C-21, could this committee make observations that would suggest this discussion needs to take place? If I understood your opening comments correctly, you are very supportive of increased security measures for your community, for Canada and for the U.S. The second part is trying to ensure mobility for your community from one side of the community to the other.

Upon the implementation of Bill C-21, my question revolves around the CBSA and other interested parties of the government sitting down with the Mohawks of Akwesasne to ensure that implementation is well understood. Whatever innovative solutions, given the unique geography, would be of some help.

Mr. Benedict: We are open to that, but it has to be with the people who can make the difference. I will tell you why.

We know the CBSA well. They are almost part of our community. They only implement the legislation. That means they interpret it and put it forward. They cannot waver from the legislation. If and when the bill becomes law, unfortunately they are not able to do much other than what it says.

It comes back to whether it would be the Minister of Public Safety, members of Parliament or members of this committee who would assist with being able to do that. The implementation plan has to be with the appropriate people.

The effects of this will be much greater than just data tracking. It will affect many families and elders. It will be far reaching. It will impact a lot of people daily.

It is done by a system. You collect the information of who is leaving and you cross-reference it when they come back. It could be literally months or years for two-thirds of my community to be processed again. There is no way to cross-reference that. When that information is shared with other agencies in the Government of Canada they won’t match up. That means, then, that an ironworker, a construction worker or a seasonal worker being cut off, or an elder who does not happen to go through customs again. The effects will be far-reaching.

Senator Richards: How was this accommodated before? I am from New Brunswick. If I went down to Calais, Maine, I would have to go through customs and I would have to go through customs again upon my return.

Certainly, on your land you must have been accommodated differently than me if I was to travel back and forth to Maine. Could that be part of the solution?

Mr. Benedict: Two-thirds of the community is landlocked by the United States. When you go back in through there, there is recognition that our people have the ability to cross the border. It is not practical to have any sort of reporting station there because. theoretically, the people don’t go anywhere. In fact, a reporting system would fail miserably.

We are equally concerned about who is entering and leaving the country. We are equally concerned about the safety of our community. We are equally concerned about having information sharing and what added value it has. If we put in a system in our community, it will not work. It will fail disastrously.

A share of this information will have financial impacts to the government later on. If people are collecting benefits outside the country that they’re not entitled to, it probably has a dollar value. We’re a very large community, but in the grand scheme of things it will cause us more in headaches than in trying to save a few bucks in our area.

Senator Richards: You have much more freedom now travelling in your area than I would crossing into Maine and New Brunswick. That’s what I am trying to say.

Could that be accommodated? Are you saying that cannot be accommodated under the new bill?

Mr. Benedict: The only way that it potentially could be accommodated is if there was a way to track the people coming back, but there’s not.

Regarding the physical aspect, the Government of Canada doesn’t have any land there. Nor does the United States government. Nor is there interest from our community to have customs established there.

In fact, at the Cornwall border it is 70 per cent Mohawks crossing there. If there were to be a border crossing there, it would be 98 per cent Mohawks crossing there.

Senator McIntyre: In June of this year, Bill C-21 passed third reading in the House of Commons with one amendment by the House of Commons Standing Committee on Public Safety and National Security during its consideration.

As noted by Senator Boniface regarding the implementation of this bill, any observations would be welcome on your part. I am sure it would be helpful to add them to the bill.

The Chair: Grand Chief and Chief Roundpoint, that concludes our questions. Let me take this opportunity to thank you very much for joining us today and particularly for outlining the very unique issues faced in your community. We deeply appreciate your making the effort to be here.

Mr. Benedict: Thank you, Madam Chair and members of the Senate, for the opportunity to speak today.

Unfortunately, we’re not able to offer robust solutions because it really is a systemic challenge that we will face. We are not the authors of this bill. Nor are we the authors of the international boundary line dissecting our community twice into two provinces, one state, and two countries.

We welcome all of you to our community any time, either individually or as a committee, to see the implications the border has on our Indigenous community, the second largest community in Canada and the only community where 70 per cent of the people who cross the international border are Mohawks.

The Chair: Senators, for our next panel we welcome, via video conference, Rey Koslowski, Director of the Master of International Affairs Program, Rockefeller College of Public Affairs and Policy, University of Albany.

Rey Koslowski, Director of the Master of International Affairs Program, Rockefeller College of Public Affairs and Policy, University of Albany, as an individual: Madam Chair and senators, thank you for the invitation to testify before your committee. I consider this a great honour. I only regret that I could not join you in person.

As the son of refugees, I teach international relations at the University at Albany. I have been researching and writing on the topic of international migration for almost 30 years.

I imagine I have been invited because your staff found a few of my publications, namely Real Challenges for Virtual Borders: the Implementation of US-VISIT, as well as, perhaps, Smart Borders, Virtual Borders or No Borders: Homeland Security Choices for the United States and Canada, both of which were published in 2005.

In addition to field research at U.S. ports of entry south of San Diego and at Detroit, I conducted research that involved border-crossing visits and interviews with border security officials in Canada during the summer of 2005 when I travelled across the country visiting ports of entry from St. Stephen, New Brunswick, to Surrey, British Columbia. In 2006, I conducted similar research in eight EU member states, Singapore, Australia and New Zealand.

At the outset, I must confess that the focus of my research has moved considerably in the past decade. Although I began to take a closer look at entry/exit data-sharing provisions of the Beyond the Border agreement a few years ago, I have not been keeping up with all the latest developments with the implementation of the U.S. entry/exit system and the relevant provisions of the Beyond the Border agreement.

I have been thinking about how this initial statement could be of best use to you. After reading Bill C-21 and watching your committee’s past hearings, I can provide a bit of context for the motivation for this legislation and some possible consequences that may not have been fully considered.

First, I will discuss why any country might want to develop an entry/exit system and specifically discuss the U.S. entry/exit system.

Second, I will explain how sharing Canadian entry data with the U.S. solves a major problem of the U.S. system implementation.

Third, I will explain how passage of Bill C-21 and the development of a Canadian entry/exit system can contribute to global efforts to better secure international travel.

To begin with, an automated entry/exit system can be a very powerful tool to identify travellers and temporary migrants who have overstayed their visas, as the Australian experience aptly demonstrates. Australian border officials have been collecting entry/exit data since 1981. Due to improvements in data collection, such as automated entry/exit passport readers, Australian inspectors electronically record the entry of everyone entering Australia. Inspectors similarly capture passport data from everyone leaving. The system matches exit records with corresponding entry records.

When I was in Australia in 2006 immigration authorities had determined that in the previous year 47,500 people overstayed their visas, the largest number of 4,940 being from the United States.

Contrary to depictions of the U.S. entry/exit system as a security measure enacted in the wake of the 9/11 attacks, it was first mandated in 1996 legislation. The Illegal Immigration Reform and Immigrant Responsibility Act required the development of an automated entry/exit control system that would:

. . . collect a record of every alien departing the United States and match the records of departure with the record of the alien’s arrival in the United States.

Congress included this provision largely because immigration officials appearing before Congress could not tell how many members had entered legally but had overstayed their visas. At the time it was estimated that there were six million unauthorized migrants in the United States, and between 30 per cent and 40 per cent had overstayed their visas.

The new entry/exit system was to be completed and operational by the end of 1998. Congress pushed back the deadline for the implementation of that law in October 1998, after the lobbying of U.S. business groups, states and localities bordering Canada and Mexico. The Data Management Improvement Act of 2000 amended the 1996 immigration legislation, mandating that the development of an entry/exit system be put in place at all ports of entry by the end of 2005.

After the 9/11 attacks, the 2002 Enhanced Border Security and Visa Entry Reform Act specifically required the installation of equipment to handle collection of biometric data. Then the Intelligence Reform and Terrorism Prevention Act of 2004 mandated acceleration of full system implementation and the collection of biometric exit data from all those required to provide biometrics upon entry. It has been 14 years and this law has still not been implemented, largely for want of exit data.

Implementing an entry/exit system in Australia has been relatively easy because unlike the U.S. and Canada, Australia has no land borders.

The collection of exit data is largely a function of the lack of existing exit controls and border control infrastructure, booths, lanes and staffing that goes along with them. Canadian entry data has enabled U.S. Customs and Border Protection to match this exit data to entry records. It brings the U.S. government one more step toward complying with the laws passed by Congress in 2000 and 2004. Because it is being done without paying billions of dollars for exit controls comparable to entry controls, as a U.S. taxpayer I thank you.

Now, for the issue of international cooperation, Canada, the United States, Australia and EU member states have led international cooperation to secure international travel while maintaining the levels of travel flows. In the 1980s, Canada, the U.S. and Australia pioneered the use of machine readable travel documents, that is those machine readable zones on the passports. Then all three countries installed readers at their ports of entry that can be used with those passports.

Two decades later, member states of the International Civil Aviation Organization, or ICAO, agreed to issue machine readable travel documents with biometrics on RFID chips. More recently, in response to growing numbers of Europeans, North Americans and other foreigners travelling to fight in the Syrian civil war, the UN Security Council unanimously voted in September 2014 for adoption of Resolution 2178, which among other things, reaffirms the member state obligation to prevent the movement of terrorists by effective border controls and improved travel document security, encourages member states to employ evidence-based traveller risk assessment and screening procedures including collection and analysis of traveller data, and calls upon member states to require that airlines provide advance passenger information.

As Minister Goodale pointed out in his November 5 testimony, Bill C-21 will strengthen the Canadian government’s ability “to prevent radicalized Canadians from travelling to join terrorist groups overseas.”

Two weeks from now, the UN General Assembly is set to adopt the Global Compact for Safe, Orderly and Regular Migration, which includes commitments for pre-screening of arriving persons, pre-reporting by carriers of passengers, registration of citizens and sharing biometric registrations.

In the run-up to the midterm elections, President Trump turned up the symbolic politics of immigration and decided to pull the U.S. out of the Global Compact for Migration, which has prompted Hungary, Austria, Czech Republic, Slovakia, Israel and Australia to follow suit. Ironically, this move may undermine global efforts to better secure international travel. It also opens up the opportunity for Canada to play a greater leadership role within the international travel regime.

With that, I will close my opening statement. If there are any questions I am unable to answer, I would be more than happy to do a little extra research and come back to you with some more information.

The Chair: We will start with questions.


Senator Boisvenu: Welcome to the Senate, and thank you for your testimony. First of all, as you understand it, this bill will increase the amount of information sent about Canadian travellers to the Americans. In your opinion, how do the Americans use all the information that is sent to them?


Mr. Koslowski: As I understand it, this legislation really deals with the entry information the U.S. collects that will be then sent to Canadian officials. I don’t think it has as much of a bearing as what has already been done, that is the providing of entry information by Canada to the U.S.

There may be additional information over time that travel record may be utilized by other agencies. For the most part, as I understand it, this allows the ability of both countries to match exit with entry records.


Senator Boisvenu: We know that the legislation on protecting personal information in the United States is very different from the Privacy Act in Canada.

One example is the information in cell phones. Today, cellular devices are practically portable computers in which a lot of personal information can be found. Given that the American legislation on protecting personal information is different from the Canadian legislation, and the two countries are committing to exchange information on travellers on both sides, is there not a risk of more legal challenges from Canadians, given that they are better protected by Canadian law than American law?


Mr. Koslowski: Well, I really don’t know how the Canadian courts would adjudicate some of these matters. I am sorry, but I don’t have knowledge to address that issue.

I could say this is the case with or without Bill C-21, but for anyone entering into the United States, border authorities have interpretive electronic devices much as any other type of device individuals may bring into the country in a suitcase, et cetera, that can be looked into. I think that is what you may be referring to.

When it comes to Smartphones, as you mentioned, they are like small computers. Quite frankly, the greater issues are the extent to which Apple collects information on the iPhone, where the iPhones are located, Google and Facebook collecting phenomenal amounts of information, and the information aggregators selling personal data.

This is probably the greatest threat to privacy. We have to keep in mind that intelligence community authorities oftentimes have budgets to purchase these kinds of personal data. Whereas the government might not be collecting it or have legal authority to collect data, oftentimes the private sector is collecting it and governments are purchasing it.


Senator Boisvenu: Could that personal information make its way to the Director of National Intelligence?


Mr. Koslowski: When you say information, are you referring to the information that would be collected through the bill?

Senator Boisvenu: Yes, the kind of information that Canada would deliver to the United States agency. Could that kind of information go as far as the Director of National Intelligence?

Mr. Koslowski: Any entry/exit record would establish whether an individual was in the United States, for example. That information is being shared by Canada with the United States now. Regarding those leaving the country, that information will provide a record of the length of stay and whether or not the individual is still in the country.

If there were to be some reason for the intelligence community or the FBI to inquire as to whether or not such person is in the United States, it would be utilized to do that.

We must remember that part of the motivation after 9/11 for implementing an entry/exit system was that several of the 9/11 hijackers had in fact overstayed their visas. Relatively little information was shared about many of the hijackers that could have been utilized to better understand their movements and possibly interrupt their travel.


Senator Boisvenu: In your opinion, are there two other countries in the world that are so close in terms of exchanging information as Canada and the United States? Once this bill is passed, the two countries will be so close together. Is there, anywhere in the world, a model where countries exchange information on individuals with such intensity?


Mr. Koslowski: The member states of the European Union have extensive data sharing and the sharing of information at the border. In terms of the overall sharing of information, it is very high between the United States and Canada, including law enforcement data and information.

From some of the earlier discussions about using and sharing of information, as I understand it, Canadian law enforcement authorities have access to U.S. federal information databases that would be NCIC criminal records, for example. There is extensive sharing of data.

I have one point on entry and exit in terms of comparing the U.S. and Canada to my experience crossing the border between Germany and Poland in 2006. That was before Poland was in the Schengen Convention. When I crossed from Germany into Poland, I handed my passport to the German inspector. He ran the passport through his system which read the passport. The Polish inspector was right next to him, so he handed the passport to him who ran it through as an entry. That was my exit from Germany and then my entry into Poland. Then the Polish inspector handed the passport back to me.

This was at the time an effort to try to utilize and share the infrastructure of border security in Canada and to have inspections on the Canadian side at the bridge coming over from Buffalo at Fort Erie. That was for naught because they couldn’t get the agreement.

First it was on firearms and then it was an issue of whether or not Canadian citizens could turn around. Quite frankly, one thought one could have that relationship between the United States and Canada, given the long, peaceful time we’ve had at this border, compared to Germany and Poland. I thought the grandparents of the two inspectors may have fought one another in World War II, and yet there they were cooperating.

There have been countries that have cooperated extensively and could serve as models for the United States and Canada in terms of its cooperation along the border.

Senator McIntyre: My first question is a follow-up to a question raised by Senator Boisvenu.

Are there any limitations on how broadly U.S. Customs and Border Protection can share entry/exit information within the U.S. government? Would it be shared with the IRS, for example? What are the privacy restraints under U.S. law?

Mr. Koslowski: Let me put it to you this way. It would probably be important for you to take my answer with a grain of salt because I don’t have expertise on the details of privacy law.

For example, the sharing of data with the IRS has come up extensively with respect to trade data because importers and various businesses are declaring goods and their receipts, et cetera. One thing hasn’t happened. Customs has not been sharing with the IRS, partly because obviously that would probably reduce the type of information sharing with the trade community. I know that is something that doesn’t routinely occur. If there were to be some type of legal action that would subpoena information, et cetera, that would be another matter I really can’t address.

Once again in terms of the entry/exit data of individuals who are crossing, for the most part this would probably not be shared unless there were some law enforcement or counter-terrorism cause for doing so.

Again, I am not too sure about what the procedures would be to execute that kind of interagency information sharing, quite frankly. This might be something that would be worth your inquiring and again using the mechanisms of the U.S.-Canada cooperation with the Beyond the Border agreement. I am sure the officials who are working on that could probably give you a much more satisfactory answer.

Senator McIntyre: Approximately seven years ago, Canada and the United States published an action plan for establishing a partnership between them. The action plan set out joint priorities for the two countries and was built upon the perimeter approach to security and economic competitiveness.

Because the action plan was not an international treaty, it did not give rise to rights and obligations. I would like to have your thoughts on that, please.

Mr. Koslowski: First, we need to be careful with the perimeter approach, as you put it. This has been one of my points of critique about some of the framing of the agreement and the title of it. Oftentimes we refer to the North American perimeter. Sometimes there is an idea that the actions could lead to something similar to what has occurred in Europe with the Schengen Convention and the border controls between Canada and the United States could be lifted. I do not see that as a very likely scenario.

If that is not to be the case and if exit data were to be collected, it is important that the United States would need to increase investment in border infrastructure. The same thing goes for enforcing trade law. Cooperation between the United States and Canada is basically a way of avoiding all the costs that would be involved in investing in that kind of border infrastructure.

As to the nature of these agreements, they come within the framework of what we in our parlance refer to transgovernmental relations between agencies of two or more countries, in this case CBSA and DHS, as opposed to between foreign ministries. As you mentioned, no, this is not an international treaty.

As to what are the ramifications for rights of individuals who might come under that, it would all have to be spelled out in implementing legislation, which is the step you are at now.

Senator Griffin: Do you see the use of biometric data becoming commonplace in the future, especially regarding border crossings?

Mr. Koslowski: Yes, I do. In my paper, if you are interested, one of the arguments I made was that I thought it was unlikely we would see implementation of the entry/exit system, formerly known as US-VISIT, largely because of the political difficulties arising from the collection of exit data and biometric data at the U.S. land borders, and that also being the case at airports.

Technology has made it much easier to collect biometrics, and I think part of the issue is society. It is very uncomfortable for me that younger folks now sign into cash registers at places where they work by giving their biometrics. They have biometric access to their iPhones and laptops. They don’t think in the same way as I do about the security of biometrics. There has been a growing acceptance of biometrics for the sake of convenience.

We see this perhaps most clearly in Australia, where there is an effort basically to use facial biometrics to make it possible for travellers not to interact with anyone. They would be able to check in for their flights and then go through border controls simply by having their faces read. This is the brave new world, if you will, of facial recognition and its use in border security.

Senator Griffin: That is very interesting. I share your discomfort with it.

My second question relates to the machine-readable travel documents. Did you say that this could help prevent radicals from going overseas to join friendly forces?

Mr. Koslowski: Yes, actually just collecting the exit data. I will use the United States as a case. As I recall, a report from some years back indicated that there may be somewhere in the vicinity of 400 foreign fighters who came from the United States. They travelled oftentimes on vacation to Turkey and then didn’t come back from vacation but rather went to Syria.

It is the ability to track that exit and to know whether individuals have left and whether they have returned from their vacation, et cetera, that provides the intelligence community an ability to track potential terrorist travel and then combat it.

It is very important to keep in mind that with the machine-readable passport there is a machine-readable zone. This first came about in the late 1970s when we had jumbo jets with 500 people landing at the same time and we had difficulty with getting the throughput at the ports of entry. A machine-readable passport was very much intended to facilitate travel through the ports of entry by being able to have the capacity to process that many travellers.

This was something that the United States, Canada and Australia pioneered, and then the other member states of ICAO went further.

The biometric chip became the standard in 2004. Essentially it takes the digital image and puts it on the chip, so that when inspectors pull up the data they see the biographical data and the digital photograph on the chip and compare it with the one on the passport. This reduces the possibility for passport fraud, for back then photo substitution was one of the challenges.

Inasmuch as these passports are more secure, they also inhibit terrorist international travel.

Senator McPhedran: When Minister Goodale was before us, he strongly emphasized the exit information to be collected was on page 2 of the Canadian passport. He also assured us that nothing more would be collected than that information, which seems quite straightforward and quite innocuous.

However, we have heard from witnesses who have indicated that where there is information sharing among or between agencies the information on page 2 can become very revealing. There is an ongoing concern from a number of perspectives about information mission creep and how we know in day-to-day interactions the kind of cooperation that frankly can be helpful in fulfilling the duties of different agencies.

My question to you is about the idea, which is not in the bill at this point, of having our border services agency make an annual report to Parliament on the implementation and efficiencies of this legislation.

As well, since much is not in the bill but is left to be decided through regulations that will be made by what we call Governor-in-Council, privacy impact assessments be applied to regulations to make sure that our officer of Parliament, our Privacy Commissioner, is involved.

Those are two proposed and possible amendments. They are both protective measures in a way. I wonder if you would care to comment on them.

Mr. Koslowski: I am reluctant to comment too much on what the Canadian Parliament and other policy-makers from countries other than my own as to what should and shouldn’t happen.

However, as a researcher, I would love to see an annual report. To have that information and to study it would be very useful because oftentimes it’s difficult for us to find out what is actually happening.

We must remember that there was an expectation of reports of the implementation of the US-VISIT. the Bush administration and the Obama administration were not simply following through, as they had little to report on its implementation to actually do that. If you are to go that route, hopefully your bureaucracies are much more compliant in producing these reports.

As I recall, there have been discussions in previous hearings about privacy impact statements. In general these are very important means for parliamentarians and the general public to understand what systems are being used and what data is being collected. It is another way in which I have been able to find out about certain systems used and the data collected. Sometimes that is the only way, other than reports by our government accountability office and our inspector general’s office.

The requirements for the Auditor General or other similar agencies to have opportunities to learn more about the systems and how they’re being implemented would be, from the standpoint of Canadian citizens, most welcome.

Senator McPhedran: As a bit of a supplementary question, given the example you gave us of European integration from Germany to Poland being an area of your research and discourse, could you comment on anything you know about other jurisdictions, not necessarily Canada and the United States, where there have been specific privacy impact assessments and/or concerns?

Also, could you comment on the concept of reporting back as a form of public and parliamentary accountability that you have seen in other jurisdictions?

Mr. Koslowski: In the United States, we do not have the same type of privacy protections that exist in Europe in terms of having much more robust data protection laws.

The question has been raised, once again, that there are laws, the implementation of the laws and the reporting that takes place. There are also different norms regarding privacy.

We can compare the norms in the United States versus those in Germany which has great privacy protection. When people move in Germany, the first thing they do is report to the police and say, “Here is my new address.” There is a population register. Much more government information is collected in a view toward a culture of giving that information. Whereas, in the United States, we do not have identity cards. We rely on our driver’s licences for identification, and a few more of us are actually getting passports.

There has been great skepticism about institutionalizing certain kinds of sharing of data with the government. At the same time in the United States the culture of sharing with the private sector is such that people give tremendous amounts of data. In fact, now law enforcement is using a combination of Facebook and to conduct criminal investigations.

The lay of the land has changed dramatically. The more that is required by government agencies, by parliaments and by the Congress, the more reporting is useful in that it increases transparency.

Senator McPhedran: I need to make sure I understand the answer. We have had an interesting description from you, but would I be accurate in concluding that you don’t know of a European jurisdiction with privacy protection in terms of the gathering of this information?

Mr. Koslowski: No, no. The situation is a bit different now because the European Union, with the border package, is moving to a biometric entry/exit system. It will be interesting. I don’t know where it stands right now, but a few years ago when I last checked, it was impossible to have an entry/exit system. For example, I drove into Germany when coming back and the entry data was checked against the national database of Schengen Information System, and that was it. That was the mode of operation. It was no longer used; it wasn’t retained. The entry data wasn’t retained.

Other countries did not retain the entry data when you entered into Schengen. In order to have an entry/exit system, one has to have the entry data record to compare with the exit data.

As I understand it now, this will be done at the European level. There will be a European directive that essentially requires member states to retain all the data for a sufficient length of time to make the entry/exit system work.

There is a combination. There are rules within member states regarding their data protection. They are also at the EU level. There is a challenge of harmonizing across EU member states. New member states have longer retention levels and older member states typically did not.

Senator McPhedran: Your answer has focused on retention, but my question was focused on privacy of the individual’s retained information.

To refine my question, are you aware in European jurisdictions, either individual or collective, where the retention of the information is subject to some privacy protections and/or impact assessment?

Mr. Koslowski: As I understand, yes, in EU member states this is very common. I know a bit more about Germany than the others. In fact there are important norms regarding this issue. Some rules with respect to the use of data collected have been a challenge, for example, passenger name record data.

There have been agreements between the United States and the EU surrounding the sharing of passenger name record data. It required extensive negotiations, shall we say, to come to agreement on the use of the data and retention periods, et cetera.

Senator McPhedran: Thank you.


Senator Boisvenu: A few minutes ago, we heard from witnesses representing the Indigenous community of Akwesasne. They raised the major problem of people moving around Quebec, Ontario and United States territory. It’s a major challenge for them when it comes to determining the length of stay in one or other of those territories.

So their great fear is that the bill would penalize people who might have trouble estimating the length of a stay in the United States.

My suggestion is for negotiations between the Canadian government and the Indigenous communities to exclude part or all of their communities from this bill. Would that pose problems for the Americans? Would the Americans recognize a negotiation whereby Canada would exclude part of the community or the entire community? Would the outcome of an agreement like that be recognized?


Mr. Koslowski: That’s a hard one. I am really not sure, but perhaps I could come back to the purpose of the bill. Basically it is about Canada receiving entry data that has been sent back by the United States. When individuals enter the United States through an official port of entry, the data is sent to Canada, and then Canada utilizes it for developing its own entry/exit system.

As to excluding certain individuals, that would probably be problematic from the standpoint of having incomplete data. Just as any other database it becomes problematic. It can lead to a host of problems in terms of false positives, et cetera.

Unfortunately, I wasn’t able to listen to the entire testimony beforehand. As I understand it in terms of moving back and forth, there will also be issues with commercial boating and how people from the Thousand Islands, et cetera, might move on the Great Lakes. As I understand it, one of the tools to deal with customs utilized by boaters has been checking in or calling in. Perhaps that may be one way to make sure that exit data is properly registered, even if an individual has not entered at the particular port of entry.

That is just speculation in terms of one way of dealing with this.


Senator Boisvenu: I gather that, notwithstanding an agreement with the Americans to enforce this act, a specific agreement between Canada and its Indigenous communities would not involve the Americans.


Mr. Koslowski: Again, as I understand the particular bill, it is about receiving data from the United States and Canada utilizing that data. I really don’t know in terms of the impact on the United States.

From the standpoint of the United States, the key issue is receiving Canadian entry data on all individuals who entered into Canada to match up our exit data with our entries. As I understand it, the data has been shared, perhaps not completely in terms of Canadian citizens. There has been extensive sharing with respect to travellers or visitors to the United States and U.S. immigrants, again non-nationals.

That has been one of the key issues, and indeed it has been working so far as I understand it. This would lead to more complete data that would allow Canada to also have an exit/entry system and be able to verify whether individuals, who have received a visa and are visiting Canada, have left or whether they have overstayed their visas.


Senator Boisvenu: Once again, thank you for being here today. We know that, when a lot of personal information on people is exchanged, the department or the government holding that information works in a very random way when pointing the finger at the people who pose a greater risk. When information of this nature is exchanged, as specific as personal information, is there a danger that the Americans will start profiling in order to identify people who pose a greater risk?


Mr. Koslowski: When you’re talking about people at risk, are you referring specifically to individuals who might pose a security risk or people who are at risk for immigration violations?

This came up before in terms of combining data and having a record of entry/exit and the period of time. If that information is then combined with other intelligence, it can make that other intelligence more useful for law enforcement or counter-terrorism purposes. However, it would depend on particular individuals and what intelligence records there might already be.

This is done by running name checks through various databases to find a hit or other identifying features in the data that might lead to an inquiry about the travel history of individuals, such as whether or not they entered or exited the country.


Senator Boisvenu: I am going to ask you a question that will be difficult to answer, but it is a current question. This bill will allow Canada and the United States to better integrate their information structures, their databases of personal information. In the last three or four years, a lot of immigrants are entering the country illegally. When these people enter Canada, they are identified. Some of the information about them belongs to the Americans, information that our customs officers are going to be looking for.

Will this bill make it easier to identify illegal immigrants that could be entering Canada? In recent years, there have been about 30,000 or 40,000, and that’s a lot. Will the exchange of information allow people at a high risk of committing a criminal or terrorist act to be identified more quickly? Will it allow us to better identify those people in terms of their American past?


Mr. Koslowski: Again, if Canada begins to utilize the exit data being collected from the airline manifests and from United States Customs and Border Protection at the land border, and if one can determine that individual Z has overstayed a visa when the individual presents himself or herself to Canadian authorities, a determination can be made as to whether the person should be allowed to enter.

This is why an entry/exit system is a tool to be able to reduce illegal and unauthorized migration. Having that information can be combined with the electronic travel authorization process. It may mean the individual may not even be able to board a conveyance to enter the country.

I don’t think it will do very much for addressing individuals crossing between ports of entry. You have been witnessing quite a few people coming from my state of New York across the border. Partly, that is because the United States has been ending temporary protection for various peoples from Haiti, Central American countries and elsewhere.

Having entry/exit data will probably not help at all with that, except of course if they have a previous record of a legal entry and where they did not leave within the period of time they were allotted.

The Chair: Mr. Koslowski, thank you very much for being so generous with your time. That ends our questions from the committee. We’re very grateful for your input.

Mr. Koslowski: I must say it has inspired me to come back to this topic, and I am looking forward to learning more.

The Chair: Thank you and have a lovely day.

(The committee adjourned.)

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