Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 30 - Evidence
OTTAWA, Wednesday, March 10, 1999
The Standing Senate Committee on Foreign Affairs, to which was referred Bill S-22, An Act authorizing the United States to preclear travellers and goods in Canada for entry into the United States for the purposes of customs, immigration, public health, food inspection and plant and animal health, met this day at 6:05 p.m. to give consideration to the bill.
Senator John B. Stewart (Chairman) in the Chair.
[English]
The Chairman: We have for consideration this evening Bill S-22, authorizing the United States to preclear travellers and goods in Canada for entry into the United States for the purposes of customs, immigration, public health, food inspection and plant and animal health.
Honourable senators, we met last week to begin our consideration of this bill. During the time since that meeting, I have gone over the evidence that we took. I do not wish to commit the committee in any way -- indeed, I have no capacity to do that; however, it is my impression that insofar as the logistics of travel are concerned, the bill is advantageous. For example, a traveller going from Canada into the United States will have to meet up with U.S. authorities either at the point of flight departure or at the point of flight arrival in the United States. It is more convenient for that Canadian, in most circumstances, to meet with the U.S. authorities at the airport of departure.
The same argument can be made for travellers from other countries who land at Canadian air ports but who go on immediately to the United States. In addition, Canadian carriers like the idea of providing that convenience for travellers going ultimately to the United States, and the Canadian airport authorities seem to like the idea.
However, I understand there are some problems with the bill as it is presently drafted. They relate, if I understand correctly, primarily to questions of sovereignty and to established rights in Canada.
I will ask the witnesses to proceed at this time.
Ms Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Honourable senators, the Canadian Bar Association is pleased to have the opportunity to appear before you today on Bill S-22. We appreciate the opportunity to do so on rather short notice.
The Canadian Bar Association is a national association representing over 35,000 jurists across Canada. Amongst our primary objectives are the improvement of the law and improvement of the administration of justice. It is in that light that we make our comments to you today.
I should point out as well that, because of the time constraints, we have been able to provide our submission to you in English only at this time. We will be providing the French version of this brief as soon as possible.
I will ask Mr. Greene to make the initial statements on the substance of the brief that you have before you, followed by Mr. Greenberg.
Mr. Michael A. E. Greene, Treasurer, National Citizenship and Immigration Section, Canadian Bar Association: As Ms Thomson has said, unfortunately, we were not able to have the brief translated in time for this meeting, but we will get it to you as soon as possible.
We were not aware of the bill until ten days ago, when we found out about it through your committee. No one had told us about it before then and, although it was on the Foreign Affairs Committee Web page and had been out there for a couple of months, we had not seen it because we had not been looking in the right place.
However, when we did look at the bill, we found we had some serious concerns in the CBA's National Citizenship and Immigration Section. We saw some serious implications there that we should like to bring to your attention.
We support legislation governing preclearance areas and we support the concept of preclearance areas. As honourable senators have said, there are many benefits to having a preclearance area. It is a convenience for travellers and it encourages foreign flights.
You must understand the difference between intransit and preclearance. Passengers on flights that originate in other countries and stop over in Canada go through intransit areas. All of our airports want to have those facilities because they will get more landings and more passengers coming into the country.
There is no doubt that there is a significant convenience for the United States by operating preclearance areas on our territory. That is something of which we should not lose sight. The benefits are not all on our side of the fence. It is much easier for them to apply their laws outside the U.S. because they do not have to worry as much about constitutional protections outside the U.S. It is much easier to turn people back closer to source than to get them to the U.S., where they can access their judicial system and where it is more costly to send them back out of the country.
The U.S. has been doing this since the 1950s. We are not doing it in the United States. We have a desire to do it, but we are not doing it there yet.
In short, we support the idea because we think it is a good idea. However, we have serious concerns with Bill S-22. We believe it is seriously flawed. Our concerns are significant enough that we think the bill should be withdrawn and sent back for major redrafting.
If the bill were to go ahead, we see the need for major changes to be made to specific provisions. Our concerns are that the bill represents an unwarranted and an unacceptable intrusion into our sovereignty and into the individual rights of Canadians and persons on Canadian soil.
While we want to have preclearance legislation, we believe it can be done in a way that can be effective without those intrusions. The present concept with respect to how people enter the United States is on a consensual basis if they do it through a preclearance area. As passengers approach the preclearance area, they are greeted by U.S. Customs and Immigration officers. Persons agree to submit to examination and search in order to satisfy the officers that they and their goods can be lawfully admitted into the United States. If at any point there is a problem, they can withdraw their application. They are on Canadian soil. They can simply say, "I no longer wish to proceed further, and I am going home."
This bill would change that relationship dramatically. These passengers would no longer have that right to withdraw. Mr. Greenberg will speak about some of the specifics of how that works.
Even though clause 10 stipulates that an individual has a right to withdraw, in fact, clause 10 takes away the right to withdraw because of the limitation it creates, saying that a mere suspicion of a violation of a very broadly worded section can result in the loss of the right to withdraw. It is a complete restructuring and a giving up of the voluntary nature of the process, and that concerns us. We think it is unnecessary, and it raises many constitutional and legal questions, as well as rights questions.
We recognize that there is a negotiation process and that the Americans would like to have certain powers. They are like the big brother and the boundaries he needs; so they will keep pushing until we set boundaries. I would say that they have pushed too far in this regard and that we should not structure the bill in this particular fashion, because we do not need to give this much away in order to give them the effective controls they need.
The other issue I wish to address is the concept that this bill is based on reciprocity. We should remember that the current situation is not reciprocal. While U.S. legislation states that the U.S. can give reciprocal benefits to any country that gives them these powers, the fact of the matter is that it is not a reciprocal situation right now. It is entirely a one-way street. They are doing preclearance on our territory, but we are not doing preclearance on their territory.
Mr. Howard D. Greenberg, Past Chair, National Citizenship and Immigration Section, Canadian Bar Association: When the bill was initially brought to the attention of the members of the Canadian Bar Association, there was no response for about one week because the bill looks very innocuous. In reading this short bill, one thinks it does not really say much, except what has been going on at airports, and one is inclined not give it a second thought.
Mr. Greene and I practice on behalf of multinational corporations in Canada. When I read the bill, I became alarmed at the provisions contained in the bill. I became alarmed at different levels. I thought I would explain that somewhat so that when you take away this document, which is the brief we wrote, you will be able to keep it in some perspective.
The Chairman: The document has not been prepared for the committee in French, either by you or by us. I would prefer if you would avoid referring to it, because it is not properly before the committee.
Mr. Greenberg: When this brief does come before the committee, one should notice that it attempts to deal with this bill on different levels. The first is the policy level that Mr. Greene has just discussed. On the one hand, in a global society, we cannot impact the free and easy movement of business travellers and people who have activities in various countries. We must facilitate them, which is what this bill does, at least outwardly.
Clause 6 of the bill is a good place to start. This clause categorizes the bill as an administration bill. It appears to be simply bringing order to a set of activities that have been going on for about the last 20 years. In fact, the bill goes far beyond being an administration bill.
The bill essentially empowers U.S. officers on Canadian soil in predetermined preclearance areas in Canadian airports to apply U.S. laws, defined as preclearance laws in this legislation, which would be for immigration, agriculture and customs. To the extent that they determine that there has been a falsehood, the contravention is not one of U.S. law, but of Canadian law. Canadian law is, therefore, used in aid of the enforcement of U.S. law on Canadian territory in a Canadian preclearance area occupied by U.S. officers.
I will not speak to you as a lawyer; I will speak to you as a traveller.
Under clause 10 of the proposed legislation, let us assume that we are on our way to Miami together, and we have just arrived at the airport. We have just presented ourselves to a preclearance officer in a defined area. That officer is attempting to make a determination as to whether we should be cleared. He or she is looking at the statements we make. I have a right to participate in that process or depart the process unless the preclearance officer informs me that he suspects on reasonable grounds that I have committed an offence under clause 33.
At the point that that communication occurs, there is a detention, we submit. If you walk from the officer at that point, then clauses 33 and 34 come into play, with the combined effect of obstructing that officer's conduct and resulting in a hybrid offence punishable on summary conviction or by indictment.
What does the officer suspect? When we saw clause 33 we became alarmed about the legislation. It states that, "Every person who makes, participates in or assents to the making of a false or deceptive oral or written statement to a preclearance officer..." is guilty of an offence.
Let us examine the possibilities. Assume that I act as counsel for IBM. IBM wishes to send an employee to the United States to carry out a business activity. Normally, I would inform IBM that I think it requires a B-1 visa. I would assist in writing the letter of request and I would characterize that activity as a business visit to the United States. The employee would receive the letter from the vice-president, say, and would take it to the airport. The officer in preclearance might very well form the view that the employee is going to the United States not for business, but to work. At the moment the officer forms that suspicion, the employee is detained. If the officer maintains that suspicion, the employee is forwarded to a Canadian officer. What has that employee done? That employee has simply presented a letter prepared by the company lawyer.
Who is liable? On a strict reading of clause 33, the vice-president of the company participated by requesting the preparation of the letter. I participated by advising and preparing it. The poor employee, who took advice from everyone, participated by presenting it. So everyone is liable.
Does the knowledge of the worker matter? No; the word "knowingly" appears nowhere. This is not an administrative statute. This is akin to criminal legislation without mens rea -- a culpable mind. This employee did not intend to do anything wrong.
For that matter, the materiality of the statement is not relevant. If I told the officer that I was going to Florida, although I am first going to California, I made a false statement. That probably has no materiality, but this section does not care about that. The offence has been committed.
Having a criminal punishment attached to clause 33 in an administrative statute for simply entering the United States is fundamentally wrong. Moreover, it is wrong for a reason other than what Mr. Greene said. This is a fundamental point in the legislation. We believe that the department lifted the Customs Act provisions that speak to a person entering Canada and imposed them, in this legislation, on a person departing Canada.
The Supreme Court of Canada has spoken in two cases in which the courts have allowed this kind of terminology to be used -- powers of an officer to suspect -- because these officers are the front line of the Canadian system. They protect us. They are the last defence before someone gets into this country, so the Supreme Court gives them wide latitude.
However, what policy objective is there in giving the same wide latitude to a U.S. officer dealing with a citizen leaving the country? For that matter, why can you not just deal with the person when he gets off the plane? The American system of collecting data and being ready for suspected persons getting off a plane is already in place. Therefore, Canadian law which uses a customs standard to assist U.S. enforcement is fundamentally wrong, and a system in which the most innocent of comments may be viewed as unlawful compounds the problem.
The legislation could go forward if the criminal provisions were removed and a voluntary system, similar to the system used now in airports for weapons screening, were substituted. If you do not wish to present yourself to the weapons detector, you can leave. If the machine beeps, you can leave. If you want to subject yourself to the process, you do so voluntarily, but you do not do it under the threat of indictable offence, especially when it is being explained to you by a U.S. officer.
Senator Grafstein: I have only one substantive question. We must read this carefully and then hear from the department before we arrive at a conclusion. I believe that the witnesses have made their arguments clear. I am a current member of the Canadian Bar Association, so I wish to declare my conflict of interest, if there is one.
Is the subject matter of this bill based on a treaty, or is it a convention? At any rate, it is a treaty or a convention between Canada and the United States. That agreement obliges us, as I understand it, without having read the treaty, to implement it by domestic ratification through amendments or domestic law.
Have you read the treaty and have you tried to ensure, keeping in mind all the protections that you have raised, that your amendments are as close to the essence of the treaty as appropriate?
The government has the power to enter into an agreement. It is not really Parliament's power; it is the government's power. Our obligation, once the government chooses to do that, as I understand it, is to ensure that once legislation is brought forward it comes as close to the line of the treaty as possible, unless there is a fundamental question. That is a different matter and then we have a much more difficult question here, as you can appreciate.
My question is: Have you read the treaty and could you give us comfort that you have tried to track the treaty provisions as closely as possible, having in mind that changes are made consistent with Canadian law?
Mr. Greene: My understanding is that there is not a treaty in the sense of the NAFTA agreement. It is not to that level. An agreement about joint cooperation has been entered into with respect to the development of laws and facilities that would, for instance, make it easier to facilitate the travel of people and goods across the border and would enhance border security and make it more effective.
I must confess that I have only read the agreement in summary form from Foreign Affairs, but my understanding is that that agreement does not get into the details of the framework or how it is to work. What it addresses is general obligations about working towards joint cooperation and making more effective services and more effective mechanisms for doing border control.
I would not presume to tell you what the duty of Parliament is; however, it is important to look at that agreement. We support the agreement, we support the principles of the agreement, which are joint cooperation, enhancement of security and facilitation of travel. That is all good. We support it and you can do that. However, we also must pay heed to the rights of Canadians, the Charter of Rights, and the Canadian laws and legal protections.
With this legislation we are looking at intrusions into our sovereignty affecting individual rights, and I would respectfully submit that we should look at ways of achieving what we want as effectively as possible, but with minimal intrusions. As we look at this bill, it is not just a minimal intrusion; we are saying that there are other effective ways of accomplishing what is wanted without creating a scheme in which wide powers -- powers of detention, search and seizure, the imposition of fines, forfeiture, and the use of force -- are given to foreign officers to enforce foreign laws on Canadian soil. This legislation will create Canadian criminal offences.
Senator Grafstein: I understand all of that. You have made your point on that very well.
I want to turn to the matter of frisk searches. I tend to agree with the comment in your brief that clause 23 should require a preclearance officer to inform a traveller of his right to be taken before a senior officer to determine if a search should be conducted. However, I am not sure that I agree with your position that strip searches are more properly conducted after travellers arrive in the United States. I am not sure that I agree with that as a question of policy. What we have here, in effect, is the establishment of a synthetic border on Canadian soil. I am not sure if it is fair or reciprocal to allow someone to enter the United States and then conduct a strip search of them. Why would the same conditions not apply to a strip search as to a frisk search, which is that it is consensual, you are read your rights, and you decide whether to agree to undergo the strip search or not. If you do not agree, you do not go.
There is an inconsistency in your argumentation. Think of it the other way round. We, in effect, establish a synthetic border and in fact we say, "You will only be strip-searched in Canada," and then we have the problem of sending that person back. It does not seem to me to be mechanically adept, to put it at its nicest level.
Mr. Greene: We are in agreement on this issue. The distinction is between voluntary strip searches and mandatory. We have no problem with the current system, which says that if they wish to request a strip search and you wish to consent, no problem.
Mr. Greenberg: Right.
Mr. Greene: That is no problem. What we are talking about is the creation of a system of mandatory strip searches; there are real problems with allowing a foreign country to impose mandatory strip searches.
Senator Grafstein: I may have misread your brief, then.
Mr. Greene: We do not have a problem with the voluntary concept. In fact, that is the structure we should like to recommend. There is a need for legislation. Much of what they are doing now is clouded. In a sense, it is not clear that it is legal. We do not have a law; all we have is an agreement which was made in 1974. What we are saying is that you can do this bill and you can make it so that it is a voluntary strip search; thus, if a Canadian says, "No, I do not wish to submit; this is humiliating; it is not worth the trip to Florida," he or she can turn around and go home.
Senator Di Nino: To pick up on the point you just made, I believe your words were, dealing with strip searches, "If a Canadian does not wish to be strip-searched, he can then go home." That would also apply to a foreigner who is travelling through the country, not just to a Canadian. Anyone who would be subjected to that procedure could, in effect, say, "No. I do not wish to go through it. I will walk away." Is that right, or is there a difference?
Mr. Greene: There is the possibility of a difference that we recognize. First of all, the Charter of Rights does not refer to Canadian citizens; it refers to persons in Canada; so the rights against unreasonable search and seizure apply. If you wish to look at section 1 limitations on the Charter, or the interpretation of what is an unreasonable search and seizure under the Charter, there are different circumstances that might be created that would allow for the setting of different standards.
In an in-transit area, where flights come from a third country and stop in Canada, the people never actually clear Canadian customs or immigration. That is the concept that is to a great degree behind this legislation. In that kind of situation it might be possible to create a different set of rules. We say "might." This bill does not do that. This bill says that the same set of rules applies to intransit people as to people originating their journeys in Canada.
It might be possible to say that, because those people are never really formally admitted into Canada by customs and immigration, we will treat that little piece of airport differently from the way we would the preclearance area.
Senator Di Nino: Bill S-22 does not provide for that?
Mr. Greene: It does not.
Senator Di Nino: In effect we will all be treated the same.
Mr. Greene: It would lump it all together.
Senator Di Nino: All three of you have indicated some serious concerns with the bill. We have spoken about clauses 10, 33 and 34, but we have not discussed other parts of the bill.
I have two quick questions. First, do you believe that this piece of legislation offends the Charter? Second, in what other areas would you have concern?
Mr. Greenberg: I will try to give you the layperson's view of this.
The standard in this bill under which a preclearance officer conducts himself or herself is probably, in our view, one that offends the Charter, because of the way in which the activities are carried on.
As I previously indicated with respect to entering, merely suspecting someone on reasonable grounds has been considered by the Supreme Court of Canada in Canadian customs cases and held favourably, but we believe that would readily be offensive in the same court in a departure situation.
The mere act of detaining someone, whether by not letting them withdraw from you or by confirming to them that they are under some sort of imprisonment or are being held, in and of itself attracts a whole series of obligations, including the right to counsel. That right to counsel would be as of that moment. One should never be in a position to need to continue to make representations to a preclearance officer while his lawyer is making his way to the airport to enter the preclearance area -- in fact, the lawyer is barred by this legislation from going in because only travellers can enter the preclearance area.
So the legislation attracts a whole wealth of rights and obligations that would not be entirely clear to all the parties at the time the transactions were taking place. That is somewhat problematic to us, and the problem is that you have a U.S. officer who appears to be administering laws but who is actually triggering constitutional rights while he does that.
Senator Di Nino: For the sake of argument at this point, am I correct in assuming that, if the legislation were amended in clause 33 by suggesting that the offence would need to be "knowingly" made and that it would be of a "material" nature, and so forth, and that if a further amendment were considered in order to continue to allow the freedom of withdrawal, the bill would then be much improved? Are those your main points of concern?
Mr. Greenberg: Yes. You can look at it on a couple of levels. First, we recommend that this bill be amended by removing any of the criminal or quasi-criminal provisions. It should not be unlawful under Canadian law not to answer a question truthfully about American law. If, for whatever international reasons might obtain, one cannot take that position, then the next level down would be to make the law more precise in whom it applies to and to clarify the circumstances under which it could be applied. Therefore, that would mean that it should be the person in front of you who is culpable or liable, and that that person should be knowingly making a statement, that the statement should be material to the preclearance law in question and that there be at that point a proper remedy in terms of the laws of constitutional safeguards in place. That is the second level and that is something we could settle for and make recommendations on.
However, we find it difficult to understand why anyone would invoke the criminal provisions in this legislation. We cannot understand why an immigration officer would detain someone and take him to a Canadian officer and ask that he be charged because he had lied about where he was going and what he was going to do -- and what would be the interest of the Canadian officer in laying that charge? Why would he want to do that?
Senator Grafstein: There might be many reasons for that.
Senator Di Nino: I believe materiality was the point you were making.
Mr. Greenberg: Yes.
Senator Di Nino: You spoke of reciprocity. Reciprocity obviously does not exist, because Canada has chosen, at this point at least, not to take advantage of it. If Canada were to take advantage of reciprocity, I understand that the provisions are available; is that correct?
Mr. Greenberg: That is an interesting issue. Reciprocity is not as simple as it sounds. Are we speaking of a U.S. set of laws that are identical to ours? Are we speaking in terms of administration? Are we speaking about the same set of rights being accorded to Canadian citizens at La Guardia Airport in New York as would be accorded to U.S. citizens in Toronto? To what extent does the U.S. Constitution afford rights that are different from the rights that a person enjoys in Canada? To what extent would Americans permit the U.S. Constitution to apply in a preclearance area that is operated only by Canadian customs and immigration? These are all issues that the legislation does not address. Those are all critical issues in determining the extent to which these are reciprocal pieces of legislation.
Mr. Greene: I should mention that we met today with the Department of Foreign Affairs and lawyers from various departments involved in the drafting of this legislation. It was a fruitful meeting. Some of those people are here. They recognize some of our concerns; they do not recognize others. You will probably hear more about that later. There was some positive discussion.
They did point out that there are provisions in U.S. customs immigration law that allow for this reciprocal recognition. The problem is that the legal structure is not in place and the laws must be enacted to do that. As their constitution is different and also because of the composition of their Congress, we do not have much confidence that those laws would pass.
You asked about our Charter concerns with regard to the proposed legislation. We have a number of Charter concerns. One is that we are providing their officers with the power to seize and to forfeit property of people at Canadian airports or preclearance centres. For instance, they could say that the possession of Cuban cigars was a violation of their law and they could choose to seize that $450 box of Cuban cigars. Under this bill, we are giving them the power to keep those cigars and do whatever they do in the United States with cigars.
Senator Grafstein: I am familiar with that. They destroy them on site.
Mr. Greene: You can imagine what might happen if we exercised a reciprocal arrangement for Canadian preclearance at an American airport. For example, at Canadian ports of entry we can seize firearms. If you declare your firearm, that is fine; you can pick it up when you leave. If you do not declare it, it is seized and forfeited. You can imagine what the reaction may be the first time a Canadian officer at a preclearance centre in Dallas tries to seize someone's firearm. Much as I respect our Minister of Foreign Affairs, I do not think he would win the battle with Charlton Heston over this one.
Reciprocity, in other words, exists only in theory. It does not exist in practice. I do not think we can say with any confidence that reciprocity will definitely occur.
The Chairman: Just following up on the question of reciprocity, I recognize that there are emotional considerations underlying an interest in reciprocity, such as equality of sovereign states; but let us move to the practicalities of the matter. Given the shape of the globe and the dense movement of travellers through to key U.S. international airports, is it not a fact that having Canada proceed with this bill, either in its present form or in an improved form, is advantageous to Canadians, with or without reciprocity?
Mr. Greenberg: Absolutely, Mr. Chairman. I cannot imagine our being a first-class global power in trade and commerce and not being able to preclear at airports and not being able to move people through airports quickly. I cannot imagine that. At the end of the day, this legislation is needed in one form or another. There is no issue as to that. It is also badly needed in terms of entering Canada from the United States. There is no question as to that.
The issue then becomes one of substance. Once you understand by treaty that you are agreeing to do this and that you want to do this, the issue then becomes one of mechanisms. What obligations have you taken on? Are they reasonable and transparent obligations? Are they appropriate obligations?
The Chairman: My simple question is whether we should be caught up on the question of reciprocity, when the fact is that proceeding to allow U.S. preclearance in Canada is beneficial to Canadian carriers, airports and perhaps even to Canadian travellers or travellers originating in Canada, Canadian residents going into the United States.
I am trying to determine how important reciprocity is, aside from considerations of national prestige and standing.
Mr. Greenberg: We were of the view that the legislation should come into effect at the time that we see what the U.S. legislation looks like. That is the official view. The more common sense view is that there is an immediate benefit to Canadians in having this legislation in place in terms of movement to the United States. Consequently, I cannot see that this should be a stumbling block to proceeding to put this legislation in place. However, I would caution that I have had an opportunity to see some drafts of the U.S. legislation; it is not the same. Therefore, I am hopeful that the end result will be the same.
The Chairman: Are you implying that perhaps there should be an amendment that says that, if the parallel American legislation is not adequate in the privileges it would give to Canadian officers, then this privilege given to the United States officers should be terminated?
Mr. Greene: My understanding is that that power is already there in clause 5. There is already something in the mechanism that allows the Governor in Council to restrict it if there is no reciprocal legislation. However, while we would not wish to argue that nothing should be done with preclearance until the Americans do something at least as good as what we are proposing, we are saying that there is no need to give away the farm in respect of how we do it. There is no need to do it in this particular fashion. We can do it in a way that is much less intrusive.
Furthermore, let us remember that clause 4 of the bill says that the purpose of the bill is based on the principle of reciprocity. Perhaps it is wishful-thinking reciprocity the way it is now, but we are not arguing against it just because the Americans do not have it. We are simply saying that we should not kid ourselves. They do not have it.
Senator Bolduc: We have clause 39, and we will put that into effect when we decide that it is acceptable for us.
The Chairman: I believe the witness has already made that point.
Mr. Greenberg: In understanding what would be a satisfactory point at which we should move ahead, I would think that if we saw the American legislation and were satisfied sufficiently that there was a reciprocal aspect to what we were doing, the fact that we would be going ahead and implementing more fully than the Americans should not preclude us from doing so. That would not be a negative action by the Canadian government. We will get direct benefits the day it is in effect.
Senator Bolduc: Mr. Chairman, clause 39 provides negotiating capability. If we do not agree with what the Americans are proposing, then we do not need to put it into effect.
Senator Corbin: The government, not us.
The Chairman: There is a considerable distinction.
Senator Bolduc: I meant the government.
Senator Grafstein: Mr. Chairman, on the point of efficiency, all honourable senators have been precleared in Toronto. I recall a trip not so long ago where I came from South America and went to Los Angeles and had to be cleared there before I came back. I was not precleared. I can tell you, returning to the chairman's point, that there is a great desire on the part of Canadians to be efficiently treated, preferably on their own soil, even giving up some sovereignty, rather than finding themselves in a pen environment, if you will, in places like Newark or Los Angeles. That can be horrendous.
From the standpoint of a Canadian interest in ease of travel for Canadian passengers, I would much rather be precleared with a Canadian system where there is not reciprocity on the other side. It is in the Canadian interest.
The same would apply, in my view, not just for the preclearance of people at airports, but also for the preclearance of goods. It is much better here. They tend to be more reasonable and rational on Canadian soil, quite frankly, than they do on American soil. That is why I commend you for the symmetrical model. I believe that Canadians have a deeper interest in travelling to the United States than Americans have in travelling to Canada.
Senator Di Nino: I do not know about that.
The Chairman: Let us not get into that argument.
Senator Grafstein: Mr. Chairman, that goes to the question of our policy and whether or not we are into a symmetrical model or an asymmetrical model that benefits Canadian interests.
The Chairman: I believe we have explored that point.
Mr. Greene: If I could respond, I do not wish you to mistake us. We recognize the need for preclearance legislation. We need it now. We are not arguing against preclearance centres. We are not saying, "Wait until you have reciprocity." However, some of these provisions are very intrusive. We believe preclearance can operate effectively without those provisions. Before you give away those powers to foreign officers on Canadian soil, you should hold back. Do not even put them in the bill. I do not like clause 39 because it is difficult to enact the bill in pieces. It is the basic framework.
We are saying you can do preclearance, and they have been doing preclearance since the 1950s under the concept of voluntariness. There is no reason it cannot continue. It would help them and us if there were some legislative protection for that system. What they are doing now, in some cases, may well be illegal. I do not think it is a bad thing for us not to expose them to that illegality, but that does not mean that they need anything close to this extent of powers.
[Translation]
Senator Losier-Cool: In Canada, we have the Official Languages Act. At our last meeting, Senator Pat Carney expressed some concern about the language issue. She was wondering if the rights which are provided in the Official Languages Act might be violated under the preclearance system. You referred very shortly in your brief to the case of a francophone who would not understand what the officer tells him, and you mentioned that such situation could cause problems. The department officials answered Senator Carney that some airlines are subject to the Official Languages Act.
My second question will be very short. Since 1997, a preclearance service is being provided in Vancouver. Are you aware of the fact that because of that preclearance system complaints have already been carried before the courts concerning the limitation of travellers' rights?
[English]
Mr. Greenberg: I should like to respond to the first question. You have made a fascinating observation. There is probably more to that observation than you might think. For example, I would like to be satisfied that the preclearance officer was capable of communicating in both official languages, if for no other reason than that the ground for suspecting a false statement could very well be a language issue and not a factual issue because the officer does not understand specifically what information is being conveyed. The act is silent in respect of ensuring that there would be bilingual services provided to passengers. That is a very important point.
The second point that you raised had to do with the other officials who might interact with the passengers, such as airline officials. The passengers on these airlines may not have the ability to communicate in the preclearance area with airline representatives in order to clarify situations unless there is an obligation that these airline officials be able to communicate in both official languages.
I have not reviewed the regulation-making power to see the extent to which this could be covered off, but it does not appear that regulations could be prescribed as to the language capability of the preclearance officers. It would be a valuable point in the negotiation process to ensure that that capability is there at the outset.
[Translation]
Senator Losier-Cool: Under the Official Languages Act, any traveller may request that service in Canada, but not when he is travelling abroad. One can always choose to stay at home. Nobody can require, upon his arrival to U.S. or to any other country, that the Canadian Official Languages Act apply.
[English]
Mr. Greenberg: That is an interesting question. First, a preclearance area is not another country; it refers to Canada. Second, a more interesting question is: To what extent does an international treaty override domestic law? That is probably something that has not been addressed. However, it is worthy of consideration.
Senator Losier-Cool: Could you comment on the Vancouver situation?
Mr. Greene: There is a concern about clause 33 and the broadness of the wording and persons falling into a liability position for committing a Canadian criminal offence. Mr. Greenberg spoke about this. You could easily see the situation in which they could be accused of attempting to deceive when the problem is really one of comprehension. That is where the difference between "voluntary" and "forceful" comes into play. That is because they may be detained. They may be faced with a compulsory search. Force could be used against them and then they could face this potential criminal liability and have no opportunity to withdraw. It would be interesting to see how they could possibly do this. It is difficult to envision them finding enough U.S. INS officers and customs officers who could even deal with the issue of language. If they have any who speak French, I would be surprised.
With respect to the Vancouver issue, we are not aware of any problems in Vancouver. None have been brought to the attention of the bar.
The feeling of our government and of the departments that we are dealing with concerning the intransit facility in Vancouver was very positive. Certainly, the airport authority thought it was good. They will get more flights. You will have people flying from other countries. That is a good thing.
You must keep in mind that people who are denied entry to the U.S. at an intransit facility have two choices. One is to seek entry into Canada; the other is to go back home. If they are not admissible to the United States, there is a good chance they will not be able to enter Canada. It is most likely that those people who have problems intransit do not stick around.
The Chairman: Suppose I were a francophone Canadian and for one reason or another I wanted to go to the New York area. If I confronted an anglophone U.S. officer at Toronto, would I be any worse off than if I confronted an anglophone officer at Newark, thus avoiding the preclearance in Canada?
Mr. Greene: If you go to a foreign country, then you must deal in the language of that country. It is not realistic to expect to be dealt with in your own language. In a sense, however, you would be worse off under Bill S-22 in dealing with it here, because not only would you be facing the American penalties, but you would also be facing Canadian criminal liability for resisting, wilfully obstructing or participating or assenting to any deception.
The Chairman: I thought that might be the line of your answer.
Senator Andreychuk: When government officials appeared before us they indicated that there was bilingual capacity in the U.S. and that that would not be a problem. I recollect being told by government officials that, if you are denied entry into the U.S., it immediately becomes an issue and Canadian law applies and you must go through Canadian immigration. You seem to be saying that people in that situation would have a choice to go back to the third country.
Let us consider the case of people coming from Thailand. Let us say their flight comes from Thailand to Vancouver and they are destined for Seattle. Let us say they are denied entry in the intransit area. I understood that they would be immediately taken away into the Canadian area where they would be subject to Canadian laws. A person might say, "I am a refugee" or "I wish to apply for immigration status."
You seem to be saying there is another option. I understood there was no option. Who puts them up until the plane turns back? That did not seem to be covered. In effect, we will be inheriting the problem situations with which the Americans choose not to deal. Is that your understanding?
Does that person applying for Canadian immigration or refugee status in Canada gain rights, privileges or defences that another direct applicant might not receive?
Mr. Greene: I believe I made the comment about there being an option to return. It is a theoretical option and probably not a practical one. I was told that by a U.S. immigration officer, whom I promised I would not quote. In theory, that is how it works. Practically speaking, if you flew in from Bangkok, there would not be a flight out in the next hour, in all likelihood.
In your hypothetical situation, I would imagine that all those people are being dealt with by Canadian authorities. I do not know if they are making refugee claims.
If the people in the intransit situations we are talking about were to make refugee claims, then they would be in the same position as anyone else who comes to Canada, presents himself at the port of entry and says, "I would like to be recognized as a convention refugee."
Senator Di Nino: Certain people have abused the goodness of Canada when dealing with immigration or refugee status in this country. Could this open up a different avenue of abuse? Could planeloads of people from Italy, my country of birth, come over and say, "Look, we are in transit. We are going to the U.S." and after finding that they are not acceptable all of a sudden say, "Oh no, we are refugees"? I do not know if I am articulating my question properly.
Mr. Greene: Theoretically, what you have said is possible. My friends at immigration can correct this when they return. The entire concept on the intransit facilities is that it is the risk that we take because you do not need a Canadian visa. It may be that they need transit visas but I am not sure about that. If they need transit visas, then we have some control at Canadian consulates. If they do not need a transit visa, then we are exposed and we are relying on the American visa granting system. The good news is that they are pretty tough. There is some protection.
Senator Andreychuk: We were told in a previous meeting that we should not be afraid of this bill, because Canadian laws are stronger than the U.S. laws in relation to protection. The preamble says that it would include the Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act. There is an assumption that someone going through a preclearance intransit area in Canada is some how better off than being subjected to U.S. constitutional laws and other laws. What is your feeling on that?
Mr. Greenberg: I have recently heard that argument as well. I have a great deal of difficulty with that argument. I do not think that you assist the Americans in controlling their preclearance laws by putting ours in place and then assuming that ours are better than theirs. The logic of the argument, "Do not worry about going through ours first before you get to yours," escapes me. I do not see it. At the end of the day, Canadian law sits in the background. As soon as you trigger it by a falsehood to a U.S. officer, it comes into being. However, it comes into being in addition to a whole set of other remedies that the U.S. government can still impose. That is probably something that has not come through yet before this committee.
If I can take a moment now, I will tell you what else can potentially happen to the person who makes the false statement.
Under the Immigration Reform Act of 1996, which was signed by President Clinton in September and came into effect on April 1, 1997, you could be banned from three to ten years under what is called an "expedited removal process" in the United States. The simple misrepresentation to a U.S. INS officer and the recording in the computer that you did it without any judicial process means that you are gone. It is in every computer in the world if you try to enter into the United States. There is no appeal process from that particular decision -- so much so that you may recall that there was some press at that time. They elevated that decision-making process up to the supervisor because they had their hands in the terminal too often banning Canadians.
The Americans have very sophisticated exclusion remedies at their disposal for people who make false claims. If someone presents himself as Mr. Greene, as described, and has given that officer a realistic belief that he has falsely presented himself, that officer is not precluded from recording that data forever more -- and he probably would as you were walking away from him. The remedy is that you are never going back.
The additional remedy that you may also be subject to an indictable offence does not seem to be appropriate. It does not add much to the process of protecting U.S. sovereignty, which will be accomplished the moment that the information is put into the computer.
Senator Andreychuk: I believe we all enjoy preclearance today. We all think it is a good thing. That has always been based on the fact that we could absent ourselves from it, and so could other third parties transiting through Canada. For people coming here from Britain, for instance, the downside we have noted is that they must go through customs and immigration twice. Therefore, we have all said that we like preclearance.
However, once this proposed legislation is enacted, will we be able to say that business people and everyone else will like it as much a year down the line -- that is, with all the issues that have been raised? It is unfair to say that business people like it. What the business people and I like today is preclearance. How do we ensure that the same kind of system remains in place?
That was to rebut Senator Grafstein. I am sure he reads our records, so he will catch that.
Senator De Bané: I have seldom seen a brief in which a relatively short bill is the subject of so many deficiencies as you have in your brief. You have 18 pages that enumerate many deficiencies. On page 3, you state twice that some of the provisions are inconsistent with our Constitution, the supreme law of the land.
For my benefit, and for the benefit of the other members of the committee, can you tell me how many lawyers of the Canadian Bar Association have been involved either in drafting this brief or in reading it prior to your presenting it to our committee?
Ms Thomson: First, the bill was circulated to the executive of our National Citizenship and Immigration Law Section. That comprises approximately 20 members. Each of those members had the opportunity to circulate it to the members in their individual constituencies. I cannot give you an exact number right now.
Senator De Bané: However, a great number of people have been involved at least in reading this brief.
Ms Thomson: Yes, and that is only the first stage of our process. The second stage is that every submission must be reviewed by our Standing Committee on Legislation and Law Reform. That is another six lawyers who have various expertise in different areas of law and who look at the bill for overall conformity with CBA standards.
I should point out that the group that normally tones down our submissions in this case actually made it stronger in its points.
The final step in the approval process for a submission is that it goes to the senior officers of the Canadian Bar Association, namely, the president, vice-president, past president and Treasurer. Each of them has looked at this brief; so it has complied with the approval processes of the association -- and I have not included in that the two staff lawyers who were involved in the process as well.
Senator De Bané: Therefore, quite a number of reputed legal minds have looked into this. Frankly, I have seldom seen a brief that points to so many problems and issues.
Twice you say that some provisions here are inconsistent with the Canadian Charter of Rights and Freedoms, the supreme law of the land, but in other research materials that we were given, we were told that this bill takes into consideration the Canadian Constitution.
Preclearance has been going on in Canada since 1950. Over eight million people go through it on a voluntary basis every year. We are now trying to ensure that that is compatible with the Canadian Charter of Rights and Freedoms, but you say in your brief that it is not consistent.
I have two documents here. Yours says that there is a problem here; the other document, which was prepared by our researcher, says that "the U.S. laws can be administered only in designated preclearance areas and will be subject to the Canadian Charter of Rights and Freedoms and relevant Canadian laws."
On page 3 of your brief you say twice that there are potential inconsistencies with the Canadian Charter of Rights and Freedoms. Later you say it denies meaningful access to rights and freedoms provided under the Canadian Charter of Rights and Freedoms. As you can see, we are receiving conflicting points of view. From what you say, many legal minds have studied that.
May I have your reaction to that?
Mr. Greene: The bill says that the Charter of Rights and Freedoms applies, and of course it applies because we are on Canadian soil. This is Canada and the Charter of Rights and Freedoms applies everywhere in Canada. Simply because the bill says it applies does not mean that the way they have drafted the bill complies.
Senator De Bané: In which case the Supreme Court of Canada can quash this legislation.
Mr. Greene: We can let the bill go ahead and they can quash it. However, we might be wrong. We are not on the Supreme Court and we do not get to make those calls.
What we are saying to you is that we have looked at it across the country. I will tell you that in our interpretation, in terms of the drafts -- and several drafts of this brief were circulated -- it was not contentious. We were not hearing people say that we are all wrong. There are problems here.
Senator De Bané: Yes, and I will give you one example. Someone wrote to a colleague of mine who came to me with the letter. The writer thinks that he was subject to an abusive search by American officials. He tried afterwards to reach them by phone. He was told, "No, there is no phone number because they are beyond the security clearance; so you cannot reach them to talk to them. If you really want to talk to them, you must go to the airport, stay there, and when one of them steps out to go for a coffee, then you may talk to that person. That is the only way. There is no phone number that we can give you."
When I heard about that person's experience -- having to go to the airport to wait until one of them came out in order to say, "I have a grievance to make," because no phone number is available to Canadians -- I did not like it.
Mr. Chairman, preclearance has been going on since 1950. Over 8 million Canadians go through every year. I do myself. If we are going to put this in a piece of legislation, then we must do it right. The Canadian Bar Association is, in my opinion, a most responsible and knowledgeable group of legal minds. I have seldom seen a brief filled with so many reservations. We should not feel pressured to adopt this proposed legislation in haste. Preclearance has been going on for 45 years in our country.
The Chairman: I would like to follow up on Senator De Bané's question. First, you seem to be saying, and saying pretty clearly, that, if the bill becomes law as it now stands, more than likely Charter cases will ensue and, when they are dealt with, parts of the proposed legislation will be struck down by the courts. You then seem to say that some form of parliamentary authorization for preclearance is desired. The implication is that the present bill could be amended so as to make it immune from Charter challenges.
Have you given any thought to the changes in specific language that would improve the bill so as to avoid that legal or judicial uncertainty?
Mr. Greenberg: The brief we submitted not only identifies problem areas but also proposes solutions. The language of the clause was not provided, but the analysis and remedial action necessary was. Therefore, the brief was prepared with a view to continuing with a bill, because we adhere to the philosophy of the bill, but not with this bill in its present form.
The Chairman: You accept the principle of the bill.
Mr. Greenberg: Absolutely.
The Chairman: But you do not feel that it has been achieved adequately, taking into account the Charter and other considerations of Canadian sovereignty.
Mr. Greenberg: If I could reiterate a point with which I started my presentation, if I had to point to one fundamental flaw in the proposed legislation, it is that it inappropriately adopted Customs Act standards. Therefore, in answer to your inquiry, Senator De Bané, I would tell you that I believe that a traveller, who withdrew at a time when an officer indicated a suspicion under clause 10, would probably find that he could defend that withdrawal, notwithstanding the suspicion, because the suspicion is a Customs Act standard, which I do not believe a Canadian court would adopt. Therefore, I think that clause is immediately susceptible to being struck.
The Chairman: I thank you very much for coming and helping us in our consideration of Bill S-22. Your presentations were clear and you have been responsive to the questions.
The committee adjourned.