Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 22 - Evidence
OTTAWA, Thursday, April 2, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-18, to amend the Customs Act and the Criminal Code, met this day at 10:55 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have before us as witnesses officials from the Department of Revenue Canada and the Department of Justice.
We are in your hands. I am sure that you have some comments on the evidence we have heard to date, and I know that Senator Nolin has some questions for you.
Senator Nolin, perhaps we could begin with your questions.
[Translation]
Senator Nolin: Do you have an opening statement or do you wish to proceed to questions immediately?
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy, Department Of Justice: My intention was to answer questions, purely and simply. Your clerk was kind enough to send me transcripts of some of your proceedings. This gives me some idea of the questions that you might ask me. I have done some homework, but I think the best approach is to go ahead and field your questions.
[English]
Senator Nolin: I have six questions. I will start with two of them, pass the floor over to my colleagues, and then complete my questions when they are finished.
[Translation]
I have six questions for you. The first question concerns the provision whereby a designated customs officer may arrest someone without a warrant. Arrests without warrants have become somewhat fashionable for our committee. Why not continue along the same lines? My second question concerns the powers to enforce Criminal Code provisions respecting impaired driving. My third question concerns the powers of designated customs officers to detain individuals. My fourth question has to do with the proposed ban on launching fishing expeditions, a tactic with which criminal lawyers are quite familiar. My fifth question concerns the decision, I would assume administrative, not to arm designated customs officers. My sixth and final question is much broader in scope and has to do with all of the new powers conferred upon designated customs officers in terms of enforcing the Criminal Code and other federal laws.
Regarding the power to make arrests without warrants, it is a known fact that of the many people who show up at border points, only a handful are under an enforceable arrest warrant. Designated customs officers are being granted the power to arrest, or at the very least detain, an individual until he can be turned over to a peace officer. Do you have any concerns about this provision? I assume that you have studied this bill. Do you or your assistants have any concerns, and if so, what are they?
Mr. Roy: The government in general and the Justice Department in particular were concerned that special powers not be granted to persons who have no need of them. This principle has guided our thoughts and our actions over the past several years.
This explains why generally speaking, we have refused to grant everyone the powers of a peace officer. Peace officers enjoy a range of special powers and safeguards under the Criminal Code.
In the matter before us, it became rather apparent that customs officers stationed at border points required limited powers to act. Why? Because at these locations, people have a tendency to flout the law for all kinds of reasons, mostly administrative.
If we have no choice but to overlook certain things at the Customs post point because we do not have the resources to dispatch a police car each time the need for one arises, why not then give the persons stationed at these border points certain additional powers? They have already received fairly extensive training in law enforcement. Why not give them the power to act, albeit not the full range of powers to act on a nationwide basis? This is the philosophy that set the tone for Bill C-18 and the Justice Department was consulted in the process.
You asked me if we had any concerns about the process and the answer is yes. In weighing both the negative and the positive aspects, we concluded fairly quickly that there was a need to grant these individuals certain powers. It is not normal that officers stationed in Lacolle, in Windsor or in Western Canada must let an impaired driver go on his way because they are not peace officers and cannot act as such. This is not normal. Why should a government agent not be allowed to intervene? There is no question that a Customs officer is a government agent. Why should he have to turn a blind eye and hope that the impaired driver does not end up in a ditch, or worse still, injure or kill someone.
This is not normal. Under the circumstances, the Minister of Revenue recommended, with the consent of his colleagues and further to consultations with his officials, to limit the powers that would be granted to officers stationed at border points to the absolute minimum required.
Senator Nolin: As far as arresting people without a warrant goes, we all know that lawyers will have a field day when designated customs officers do not have the necessary training or are not up on the code, case law and our Charter. What are the limitations when it comes to using these powers?
We may want the best piece of legislation possible, but the fact remains that on reading the bill, it is clear that customs officers are not deemed to be peace officers. They may have broad powers, but this does not make them peace officers within the meaning of the Criminal Code. Some of these powers may extend to them, but they are merely quasi peace officers. One of the powers that a peace officer has is the power to arrest and detain persons, with everything that this entails, including the burden of protecting the rights of the person being arrested.
Mr. Roy: Could we both agree at the outset that the individuals in question here are already to some extent peace officers? They already have the power to act under section 495 of the Criminal Code which provides for arrests without warrants.
Senator Nolin: By a person who is not a peace officer.
Mr. Roy: By a person acting as a peace officer. That person will now be able to arrest someone without a warrant when the offence in question involves the Customs Act. According to the definition in the Criminal Code, a customs officer is a peace officer for law enforcement purposes.
Senator Nolin: Only for these purposes?
Mr. Roy: I say this, because there are intrinsic limits to the powers which the Criminal Code confers on a peace officer to make an arrest without a warrant. A peace officer cannot arrest someone on a whim. Even though he may have grounds to proceed with an arrest without a warrant, there are still limits as to what he can and cannot do. In other words, not only must there be good reason to believe that the person has committed a criminal offence, but furthermore, section 495 of the Criminal Code lists those instances where the officer should not detain individuals.
The peace officer in question here, namely the customs officer, has already been trained to enforce this provision. What we are proposing here is to extend this power, that is to make use of this training and enhance it if necessary. I am not saying that the training is perfect. Customs officers would have the power to make an arrest without a warrant when it is necessary for them to do so.
One outstanding example was given by the people who testified before your committee. What if a parent who has custody of his child only on weekends decides to snatch the child and disappear for good. The parent shows up at a customs post. Is it normal that the customs officer cannot step in and arrest this individual? There is a fine line between detaining and arresting someone. Some would say that there is no difference at all.
Senator Nolin: I will have some questions about that later. The bill specifically refers to detaining an individual for an unspecified period of time. The relevant provision in the code states that when any one other than a peace officer arrests a person, that person must deliver the individual who has been arrested forthwith to a peace officer. There is no such stipulation in our bill.
Mr. Roy: Would you like me to answer that question immediately?
Senator Nolin: The designated customs officer is not a real peace officer. Many powers now extend to him. The matter of how much time can elapse needs to be clarified. If we want a specific time frame, then we should be specific. I would like the word "forthwith" to be included, just as it is contained in section 494.3 of the Criminal Code. Anyone other than a peace officer who arrests a person without a warrant must deliver that person forthwith to a peace officer.
As I understand it, this is precisely the situation covered in Bill C-18. The designated customs officer may arrest a person attempting to enter Canada and detain that person until he can be delivered to a peace officer. There is quite a bit of similarity between the two provisions. Would you care to comment?
Mr. Roy: Regarding the power to make an arrest without a warrant, the peace officer must follow certain procedures. We could examine each one of them, but this might be rather tedious. In some instances, the Criminal Code stipulates that a peace officer should not arrest anyone without a mandate. In other instances, it allows a peace officer to release someone after a bond has been posted. I will go one step further.
Senator Nolin: This is starting to look like what we see south of the border. But that is another matter to debate some other time.
Mr. Roy: Under the Criminal Code, a peace officer who arrests someone may detain that person only for the certain period of time. I believe the time frame mentioned is 24 hours. As a peace officer, you are required to deliver that individual to law enforcement officials within 24 hours so that that person can go before a justice. The time limit in question will apply equally to designated officers and to police officers.
The intention here is to grant customs officers the power to arrest people, make the necessary checks and deliver that person to the local police, whether the RCMP, the provincial or the municipal police force. If you are not satisfied with this and would like firmer guarantees as to the amount of time that can elapse, let me just say that the 24-hour time limit prescribed in the Criminal Code applies directly to these persons. By law, they may not detain a person for more than 24 hours.
Senator Nolin: I will now turn the floor over to my colleagues, but I do have a question concerning the powers assigned to customs officers to deal with impaired drivers. We are talking about fairly extensive powers here, among others, the power to administer breathalizer and blood tests. My concern here is about the Charter. My colleagues who are lawyers will have a field day challenging the authority of these officers.
Senator Gigantès: There are six lawyers in my family. Do you want to take away their livelihood?
Senator Nolin: We should try to let them earn a living in a manner that is more respectful of the Charter.
What about the training given to these officers? This is another contentious issue.
Mr. Roy: Indeed it is.
Senator Nolin: This provision is intrusive and there are stacks of legal rulings that back this up.
Mr. Roy: It is amazing to see the number of rulings that have been handed down in impaired driving cases. Our first concern was the time limit and in cases like this, the Criminal Code is even more stringent. The time limit in this case is two hours.
It should be noted that there are two possible courses of action that can be taken. You may have reasonable grounds to suspect that someone is driving while impaired and decide to administer a roadside breathalizer test where the results are obtained immediately. The driver may pass or fail the test, or the results may be inconclusive. If the driver fails the test, the peace officer then has reasonable grounds to suspect that the person is intoxicated and operating a motor vehicle while his faculties are impaired. A decision can then be made to have that person undergo a more formal breathalizer test. The test must be administered within two hours. If customs officers are not in a position to administer such a test, they could face a number of problems. There is a strong likelihood that any subsequent evidence will be ruled inadmissible. The courts will not want to admit this evidence for reasons that are well known in law.
Clearly, if customs officers feel they need to act in this area -- and the legislation as written does not require them to act, but merely gives them the authority to act -- they would be well advised to have the proper equipment for the job.
Senator Nolin: However, the two-hour time limit will apply to them as well. They are the ones who have the power to detain persons. If they have any doubts about someone who may have been detained, because of the two-hour time limit, they will not have time to call a peace officer to notify him that in their opinion, the person being detained has some problems.
Mr. Roy: The situation could differ from one border point to another. It would probably be easier to take action in Windsor because the police station is two blocks away from the border point. It would probably not be possible to act at some of the other border points. Remember that the breathalizer test must be administered by a qualified person who has been trained in accordance with the provisions of the Criminal Code.
Senator Nolin: What does the Criminal Code provide for in the way of training?
Mr. Roy: Training is absolutely essential. Training is a prerequisite to using these instruments. I would have to say that if customs officers detain someone for two hours on a whim, knowing full well that they do not have the necessary qualifications, training or tools, they could encounter some problems.
You cannot detain someone without a valid reason. Obviously, this fact is emphasized during the training they receive. Customs officers must be cautioned against taking certain actions. Bill C-18 grants them certain powers, but does not tell them how to use these powers. The Criminal Code will continue to apply to customs officers in the same way that it applies to other peace officers.
Senator Beaudoin: I have no problem with the customs issue. The courts have ruled on these powers. The only thing that concerns me a little is the fact that the administration of criminal justice is a provincial matter and indirectly, this fact could be invoked.
Have you consulted with the various police forces? Quebec and Ontario have their own police force, whereas many of the other provinces rely on the RCMP.
Mr. Paul Girard, Interim Director General, Contraband and Intelligence Services, Customs and Trade Administration Branch, Department of Revenue: Yes, we consulted extensively with all of the provinces and with several police services.
Senator Beaudoin: And you discussed this bill with them?
Mr. Girard: Yes.
Senator Beaudoin: And they have no problem with it?
Mr. Girard: No problem whatsoever.
[English]
The Chairman: Senator Beaudoin, perhaps we could carry on with Mr. Roy while he is here. I believe the other two witnesses have statements to make, after which we can proceed to question them, but perhaps first we should carry on with Senator Nolin's question and supplementaries to that question.
Senator Nolin: Mr. Roy wants to add something. Was that a subject of discussions with your provincial counterpart, Mr. Roy?
Mr. Roy: I remember having this issue brought to the attention of senior officials. As members of the committee and the chairman will know, a number of committees exist so that we can have discussions with the provinces. The deputies involved in criminal justice issues meet regularly, as do other officials. This issue was brought to their attention, and that did not raise any concerns. That includes our friends from the Province of Quebec.
[Translation]
Senator Joyal: Senator Nolin put some important questions to Mr. Roy. Judging from the answers given and from what we can see, we appear to be in the process of making an extremely important decision. We are about to turn people acting as and exercising the powers of customs officers within the meaning of the Customs and Excise Act into peace officers with the authority to enforce a host of other laws.
You yourself gave an example of a person trying to leave the country with his child. I did not quite understand this example because normally, when we leave the country, we do not go through Customs. When I leave Canada for the United States, no one stops me and there are no formalities of any kind. Obviously, I must clear U.S. Customs, but there are no formalities when I leave Canada.
If I were a parent fleeing with a child, I might be stopped on the American side, given that there is a binding agreement in place with the United States. Does this mean that there will now be some controls in place when people leave Canada?
Mr. Roy: Not necessarily, although that could certainly happen. Customs officers generally exercise the authority they have in this area when a person enters the country. Some controls can be exercised when a person exits the country and similar situations may occur. This would certainly not be standard procedure and I am not suggesting that as a result of this bill, controls will systematically be enforced in future when a person exits the country. That is certainly not the case, although legally, it is possible that that could happen.
Senator Joyal: Personally, the example you gave bothers me a little. Perhaps I am naive, but I was under the impression that when I arrived at a U.S. border point, I could be subjected to intense questioning, whereas when I left Canada, I would be exiting the country freely.
Obviously, if the police are after me, that would be a different story. Otherwise, you are telling me that a customs officer, because of the powers that have been granted to him, could stop me on the Canadian side of the border and check me out. Would this be possible as a result of the amendments that we are proposing to adopt?
Mr. Roy: First of all, the amendments as worded restrict the exercise of these new powers to border points. Customs officers cannot exercise the powers of peace officers at shopping malls or at the drugstore. A peace officer in Canada can exercise his authority 24 hours a day, seven days a week, just about anywhere within his own province. This bill provides for something quite different. The jurisdiction of customs officers is restricted to border points.
Secondly, consider, for example, the legislation respecting imports and exports. Some goods cannot be exported from Canada. If you wish to do so, you must go to a customs post and obtain the necessary authorization.
Canadian law as it now stands provides for the possibility of some controls being exercised when a person exits the country. However, such measures are not enforced because it would be too costly, for the government as well as for the public, to control people each time they want to leave the country. Let us again take the example of that person who arrives at the border with his child. Supposing we have information that this individual is heading to the United States and has no plans to return. The U.S. customs officer denies the person entry into the United States. All of this takes place at the customs post. Can the Canadian customs officer intervene pursuant to the current Customs Act? The answer is no, he cannot. Two things can happen: either the U.S. Customs officer will choose to let that person enter the United States, or the person will return to the Canadian side of the border where the customs officers will not be able to do anything and the person will simply disappear back into the general population. In this particular instance, which is very hypothetical but nevertheless conceivable, we feel that customs officers should be able to take some action, without there being a need for a police officer to be stationed at the customs post in case a situation like this arises.
The same scenario is possible in the case of an impaired driver, except that in this instance, the driver in question could be either entering or exiting the country. If a person is coming from or heading to the United States and the U.S. customs officer observes that he is impaired, he can decide to turn that person back at the border. Are we supposed to sit back and do nothing? That would be somewhat irresponsible and that is why we feel that customs officers should be granted the powers of a peace officer, but only within the strict confines of a customs post.
Senator Nolin: In my opinion, it is important to establish that we have absolutely nothing against the aims of this bill. We simply want assurances that restrictions will apply and that other laws will be respected. Above all, we want to avoid the excesses that we are seeing right now on the other side of the border. As far as I am concerned, the situation has gotten out a hand there.
Senator Joyal: You have indicated that customs officers would be granted the powers of peace officers for the purposes of enforcing the Customs and Excise Act. Speaking from experience once again, officers stationed at customs posts already ask people questions that go beyond the scope of the Customs and Excise Act. Let me give you an example of a question that was put to me.
I arrived at the border point driving a particular make of vehicle. I was asked the following question: Who is the owner of this vehicle? Next question: Do you have the vehicle registration number? The officers were checking to see not only if the vehicle had been reported stolen, but whether it had in fact been registered for the purposes of the Revenue Act. We are no longer dealing with a customs and excise issue. I am talking about a vehicle with Canadian plates. I believe that it is extremely important for us to know what exactly the intent of the legislation is here. Henceforth, a Canadian citizen arriving at a border point could be subjected to all kinds of other checks which go beyond the scope of the Customs and Excise Act. It is no longer simply a matter of a person trying to import a vehicle suspected of being stolen. The officers may check to see if the vehicle is a recreational vehicle or a company vehicle. If it is a company vehicle, they may check to see if the vehicle has been declared as such on the person's tax return. We have moved beyond the scope of the Customs and Excise Act. An individual's presence at a customs post becomes an excuse to proceed with a whole slew of other checks. For instance, does the driver have any outstanding speeding or parking tickets? We have moved way beyond the scope of the Customs and Excise Act.
If we are going to adopt this bill, and personally, I have no objections to voting in favor of the proposed legislation, we need to fully realize the legal ramifications. Henceforth, a customs post is no longer a location strictly for the purposes of enforcing the Customs and Excise Act or for dealing with criminal matters, but a location where all kinds of controls can be exercised in respect of other federal or even provincial laws, depending on the individual in question.
In my opinion, we need to have a clear understanding of what we are voting on because these provisions have important implications in terms of individual rights and freedoms.
Mr. Roy: I totally agree with you. Personally, I do not know why you were asked these questions or why this happened to you. Are customs officers also responsible for enforcing legislation respecting the importation of vehicles manufactured in the United States? Did they have information that people would be attempting to bring such vehicles into the country without paying the appropriate taxes and duty? Where they acting because people go to New York State to purchase vehicles because the price is cheaper? I do not know. To answer your question more directly, we insisted on the inclusion of subsection 4 to section 163.5 to limit the powers of customs officers. This particular provision reads as follows:
[English]
(4) A designated officer may not use any power conferred on the officer for the enforcement of this Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.
[Translation]
In other words, the bill is trying to get across in legal terms the notion of "plain view." What exactly does "plain view" mean? That a peace officer, in the exercise of his duties, must be able to act when he senses that an offence has been committed in an area other than that for which he is responsible.
One example is often given to illustrate this notion. Consider the case of a police officer who conducts a search for documents in connection with a fraud case. Arriving on the scene, the officer finds a large amount of cocaine sitting on the table. Should he think to himself: "I do not see the cocaine and I am not authorized to search for drugs"? No. The law states that if you are conducting a search and uncover another offence in the process, you have the authority to act. This is somewhat similar to what we find in this bill.
Customs officers have the power to act within the meaning of the Customs and Excise Act. What subsection 4 is trying to say is this: if the officer observes other federal offences, for example, the driver is impaired or both the vehicle and the driver are spattered with blood, should the officer turn a blind eye? The answer is no. However, we would not want customs officers to conduct the kind of investigations that you are talking about simply because they have been granted the powers of peace officers.
Senator Joyal: I understand, but you are using a rather far-fetched example. If a person arrives at the border with an axe, knife or body parts on the front seat of the car, clearly, any reasonable, rational human being is going to think that something is wrong. That is entirely different. You might say that this is an extreme example. However, it is quite another matter to ask someone for his social insurance number, to punch it into the computer and to get a profile of the person. As everyone knows, it is not very difficult to find out a lot about a person through his licence plates, drivers licence, social insurance number and heaven knows what other piece of ID. A customs officer may be dealing with someone who is being sought for outstanding fines totaling $110 and he could arrest that person at the border for an outstanding fine of $110.
The person's faculties are not impaired. He agrees theoretically to comply with the laws of the country. This is totally different from saying that we are giving a person the power to arrest an individual who has or is about to commit a criminal act. We are talking about two completely different things.
That is why I was wondering how far, practically speaking, this goes in terms of opening the door to all kinds of other inquiries. The fact is that the customs officer will be able to get a good idea of the person's background simply by entering information into his computer.
Subsection 4 restricts the designated officer's power to act. However, information about an individual can easily be cross-referenced at the customs post.
Mr. Roy: I will not try to avoid your question by giving you a technical answer, but let me just say this.
We are talking about a piece of legislation. Legally, a peace officer does not have the authority to stop you on the street, to ask you questions and to force you to answer those questions. He cannot do that. He can certainly stop you on the street and say, "Good morning, senator, may I ask you a few questions?" There is nothing to stop him from doing that. You have the right to remain silent. If you have not done anything wrong or if you claim to have done nothing wrong, he cannot force you to answer his questions.
In law, stricto sensu, a peace officer who has been granted new powers pursuant to the legislation may not, simply because he is stationed at a border point, ask you questions about your lifestyle, background or identity, as if he were stopping you on the street. These powers enjoyed by a customs officer are restricted to the scope of the legislation. The questions asked must be relevant to the law that he is enforcing.
If customs officers start asking questions which have nothing to do with the Customs Act and argue that because of the powers they have to act as peace officers, they can ask you these questions, then something is wrong here, because they do not in fact have the right to ask you questions like this
Customs officers, acting in their capacity as peace officers, have the power to make arrests. They can use a certain amount of force when they make an arrest. They can exercise this power when a person is in possession of a firearm. I understand that Canadian Customs have no plans to give customs officers firearms. This is part of the picture. This power relates to electronic listening devices. It relates to impaired driving, but it does not mean that customs officers can force you to answer their questions.
When you enter Canada, because of legal precedents, you may be compelled to answer some questions. Senator Beaudoin in particular is familiar with the Simmons case in which the Supreme Court of Canada ruled that protecting our borders is in the national interest. Officers can ask questions when it is in the national interest to do so. Such questions can pertain to immigration and customs matters. However, they cannot ask questions for general law enforcement purposes.
Nor can they pursuant to this legislation. We wanted to avoid technical discussions or overly technical answers. We wanted to send out a clear message with subsection 4, namely that you cannot ask questions or start investigating people who are at somewhat of a disadvantage at a border point.
There is no way of knowing what people's state of mind is when they return to Canada. Customs officers seem to have some power over people. We wanted the legislation to be clear to let people know that the powers of these officers are limited to enforcing the provisions of the legislation. They are authorized to take action when it is apparent that an offence has been committed. That is the intent of subsection 4.
Senator Joyal: To my mind, there is a very clear difference between a person walking on the street and being stopped by a police officer and a person who arrives at the border. At the border, there is nowhere else to go. To some extent, communication is restricted and literally, there is only one way out, and the customs officer holds the key to your freedom. I believe you have expressed your feelings on the subject quite clearly.
Senator Beaudoin: You are at the mercy of the customs officer.
Senator Joyal: There is nowhere else for you to go. There is a very clear difference between a person who arrives at a border point and who is committing a criminal offence, such as driving while impaired, and an honest citizen who shows up at the same border point. That person may be asked to produce some identification bearing a number. That number is punched into the computer and almost instantly, considerable information about that person is revealed. Who, pray tell, is going to refuse to show some identification? What happens to a person who refuses to produce identification? What if a person produces some photo ID, but hides the number on his social security card? What risk is that person running when he shows up at a border point?
Does the proposed legislation mean that a person may have to submit to having his rights and freedoms controlled in some way when he returns to Canada? In my view, this is the fundamental question that we must ask ourselves.
Mr. Roy: I share your concern. Without this power, customs officers cannot exercise this kind of control. People all fear the same thing. If they refuse to disclose this information, will their vehicle be searched and will they be detained for one hour? Bill C-18 does not add to or diminish this psychological fear. It does not give customs officers the power to do more than what they already do now. Moreover, to alleviate any doubts that some people may have, Parliament is prepared to adopt subsection 4 of section 263.5, which cannot be any clearer. Customs officers cannot use their new powers to conduct other inquiries or take other action. That is what Parliament is saying.
What choice do people have? Can they refuse to cooperate and subsequently take legal action against a customs officer who may have been overzealous? Who is going to opt for this solution? Who is going to be interested in arguing that he was a victim of an abuse of power? There is no question that there is some legal recourse available. However, people feel compelled somewhat to provide the information requested .
Senator Nolin: If I understand correctly, the law already gives them the power to intrude into people's private lives.
Mr. Roy: I am not saying that. They have the power to enforce legislation, in this case, the Customs and Excise Act. I do not see why a customs officer should inquire as to my marital status, the number of children that I have or whether I am single. This has nothing to do with the Customs Act. The questions he asks must be relevant.
Senator Nolin: Quite often, when I go through customs, I am asked whether these are my children and whether this is my wife. I answer that yes, they are. However, I could be lying. Are customs officers acting within their authority when they ask these questions? I assume they have the right to ask these questions. I understand your argument with respect to subsection 4. It provides a general safeguard. However, customs officers are already entitled to ask these questions.
Mr. Roy: They may ask questions because it is in the national interest for them to do so. Are they dealing with illegal immigrants or not? For example, I am returning alone from a business trip to France. I arrive at customs and am asked a number of questions. Are you married? I am not sure that asking the question has anything to do with the national interest. Are you an immigrant? Do you have family here? The customs officer may have some doubts about a person's true identity.
Senator Nolin: Do you see a contradiction between subsections 4 and 2? Subsection 2 relates to impaired driving. It relates to someone who is clearly impaired and having difficulty driving his vehicle.
Mr. Roy: At the present time, the police in Canada cannot stop someone on the street, unless they have reasonable grounds to suspect that person of having committed an offence, and say to him: I am going to ask you to take a breathalizer test. They must have reasonable grounds for acting. The Supreme Court has ruled on numerous occasions that roadblocks may be set up in order to ask people the following questions: How are you today, Sir or Madam? The police must have reasonable grounds to suspect that a person is intoxicated, otherwise, they cannot legally force that person to submit to a breathalizer test. If they suspect the person is intoxicated because his eyes are bloodshot, or because they smell alcohol on his breath, they can administer a test. If the driver fails the test, the police then have reasonable grounds to believe that the person's faculties are impaired and they can make him submit to a more formal breathalizer test. I do not see a contradiction between subsection 2 and what you have here.
If the customs officer sees that your eyes are bloodshot and that you are babbling and smells alcohol on your breath, he has reasonable grounds to suspect that you are impaired. Accordingly, he can act. This is consistent with subsection 4.
[English]
Senator Joyal: In my opinion, there is a difference between someone walking down the street being arrested by a policeman and someone submitting himself to a policeman. If I was walking down the street and a policeman grabbed me by the arm and asked me to take that test, that is different than me coming to a policeman and saying, "Check me." It is totally different. You understand that.
Mr. Roy: Yes.
Senator Joyal: This is exactly what we are doing when we go to Customs now. The customs officer will now be able to ask, "Have you consumed alcohol in the last hour or so?" The agent could theoretically ask that question now.
Senator Nolin: They are now asking that question.
Senator Joyal: I have never been asked that before, but now when I come to the customs officer at the border, they can ask me, "Did you consume alcohol in the last hour, yes or no?" If I say, "Yes," they could say, "How much?" Then if I say, "Two beers," they can ask me to take the test.
As I said, it is totally different than being grabbed on the street and submitting yourself to a check by the police. The customs agent is now a police agent for the sake of the legislation. This is different.
Is the provision that we are putting in the bill strong enough to deal with that new situation?
Mr. Roy: Let me first state unequivocally that the peace officer who is asking you those questions, or the regular person on the street who is asking you that question, or the customs officer at the border post who is asking you that question, can certainly ask the question, but you have absolutely no obligation in law to answer, none whatsoever. You may feel that there is a form of compulsion in that if you do not answer the question there will be some consequences, but in law there is no obligation on your part to answer.
The impaired driving example is useful in this discussion because the testing being done in Canada right now takes place in areas of the city -- or wherever it is taking place -- where there is no way to escape. It is on a bridge or on a highway, and you have no choice but to go through their little "barrage routier." It is the same situation at the border. You have no choice. Either you turn around and try some other post, or you go through the line where you eventually speak to a customs officer.
When peace officers conduct a "barrage routier," it is the same when you go to a border post. They cannot ask you questions that you do not want to answer. You do not have to answer those questions. They must have those reasonable suspicions based on what they observe. They see you. If your speech is slurred, you may have a problem. If there are other signs that you are impaired, you may have a problem. They develop those suspicions. You then must go through the first test. If it shows that you have failed, you must go through the breathalyzer exercise.
The government is suggesting that there is nothing wrong with that. Quite frankly, with respect to impaired driving, that situation is the same on the Portage bridge on a Friday night at eleven o'clock. There is no difference, in my humble estimation.
Senator Joyal: There is some qualification.
[Translation]
Senator Nolin: You presently have this authority pursuant to section 98 of the Customs Act. Is that correct?
Mr. Girard: Yes.
Senator Nolin: And you wish to extend this power by virtue of Bill C-18?
Mr. Girard: Yes.
Senator Nolin: On reading this provision, I can understand your dilemma. Section 98 states that an officer may search a person if he suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this act has been or might be contravened, anything that would afford evidence with respect to a contravention of this act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other act of Parliament.
When Senator Joyal was questioned about his vehicle and its owner, was the officer acting pursuant to this provision?
Mr. Girard: From time to time, these questions may seem a little odd, but the reason for them is to find American vehicles that must not be imported into Canada. These questions may seen odd, but they are necessary to prevent smuggling.
[English]
For example, with respect to the many motor vehicles manufactured in the United States and imported to Canada, it is not always a question of duty but rather a question of the obligation of Customs as part of its role in administering, through the vehicle of the Customs Act, 70 or 80 other pieces of legislation to be certain that the emissions standards and all other requirements for Transport Canada are met.
Some of the other questions you have described may have been imprecise with respect to the suggestion that this is your family. The officer may have better posed the questions to you on your visit or your arrival. In many instances we are fulfilling our primary function, which is immigration. The first question is, are you admissible? The second question is, what do you have with you? That is why some of the questions seem a little strange from time to time. They might be better posed, but their purpose is to be consistent and in keeping with the purposes of the Customs Act and the other pieces of legislation that we enforce.
Senator Joyal: When someone crosses the border back into Canada, the agent's computer screen shows the date the individual left and the purpose of the trip. That has been my personal experience. I have experienced these checks more than once. The questions that were asked of me were clearly intended for income tax purposes and not because the agents were checking the types of cars that were suspected of being imported to the United States without a duty having been paid.
I learned from conversations with friends who drive luxury cars on the payroll of a company that they are asked certain questions. The information they are asked for, such as the driving permit, the registration of the car, and questions about travelling on a weekend and being absent for three days, clearly is not being used for customs and excise legislation but rather for income tax purposes.
I called my accountant and said, "Did you make sure that we reported this car," because I thought they would check. Believe me, I was not the only one who had that clear impression. I talked to some friends who were in the same position.
Mr. Girard: That is a fair comment. I accept at face value what you tell me. It might be useful for us to speak bilaterally to discuss this issue because it is certainly not within the realm of competence of Revenue Canada or Customs to be acting in the fashion that you have described and for the purposes that you have described. It would be of interest to me, as a responsible official of that department, to have a fuller understanding of the situations and stories that you are describing to better address that concern. If you wish, I am available at your convenience to discuss it. It is certainly not the intention to exercise that power.
The Chairman: Strangely, I have no problems coming across the border in my Ford Escort.
Perhaps at this point you can make your presentation, and then we will open things up for questions.
Mr. Girard: We are pleased to be here today to elaborate on and discuss further Bill C-18. We have had the advantage and opportunity of hearing the testimony of the representatives from the Customs and Excise Union and Deputy Chief Michael Dagley of the Windsor police force. We were very pleased to hear the words of support for the bill that were expressed by both the union and Deputy Chief Dagley. It is evident from their testimony that they share the department's conviction that the legislative changes proposed in Bill C-18 will go a long way in protecting the safety and security of Canadians.
This legislation is necessary and, just as importantly, it is workable. It bridges a long-standing gap in our ability to ensure that Canadians are protected from the dangers posed by undesirable individuals and criminals.
We noted that the CEUDA witnesses expressed some concern about the department's commitment to deliver the policies, tools, and training that will be required in order to properly and successfully implement the officer powers initiative. I noted that Senator Nolin's questions were germane to that point, and we would like to address that.
[Translation]
I want to assure you that Revenue Canada is well aware of the implications of the proposed changes to the duties and powers of customs officers. We are committed to providing the necessary training and tools to ensure that our officers are in a position to carry out their duties efficiently and safely.
As we already pointed out to the committee, customs officers are skilled professionals. They assume their responsibilities with enthusiasm. We are confident that with sound training, designated officers will be prepared to display the same level of professionalism when it comes to their new responsibilities for enforcing Criminal Code provisions.
We realize that an initiative like this cannot be implemented overnight. Policies and procedures will need to be in place and proper training provided well before the bill is proclaimed into law.
We recommend that Bill C-18 come into force nine months after it receives royal assent so that those involved in this initiative have adequate time to prepare themselves.
[English]
A great deal of work has already been done to prepare for our new responsibilities. As was indicated during our previous experience, the department has established an implementation team that will thoroughly address all of the implications of Bill C-18. We are well aware of the need for enhanced officer training, operational policies and procedures, and adjustments to work force recruiting standards. There will also be a requirement for some renovation to existing facilities to ensure that suspects are held in a secure environment and away from the travelling public. We are committed to delivering on all of these issues.
The question of training has been a topic of considerable discussion over the course of committee deliberations. CEUDA representatives expressed scepticism about the department's commitment to train officers to undertake these new duties. Deputy Chief Dagley also identified training as a key element in the success of this initiative. I assure you again that Revenue Canada will not designate customs officers under Bill C-18 unless and until they have received and passed the appropriate training.
Officer safety has also been raised on a number of occasions. Again, I must emphasize that the health and safety of customs officers is our foremost priority. We are implementing personnel protection and use of force policies and training for our officers. These policies and training programs will be in place prior to the implementation of Bill C-18. No officer will be asked to carry out these new responsibilities without them.
The arming of officers has attracted much discussion, both within the government as a whole and in House of Commons and Senate debates. The government has considered this matter very carefully. It is recognized that there is no right or wrong answer to the question of arming. As I am sure you have noted, there are many and varied opinions on this subject. At the end of the day, it is clearly a judgment call, and it is the government's judgment that arming of officers is not necessary.
CEUDA indicated that no formal arming study has been undertaken since the early 1980s. While this is true, I must emphasize that this does not mean that Revenue Canada and the government have not been vigilant in consideration of this issue. We are continually monitoring and evaluating the health and safety considerations of customs officers' work. We have equally considered the implications of Bill C-18. Based on all of these evaluations, we have seen no compelling argument for us to recommend that the government change its position on this issue.
[Translation]
Officers have always displayed excellent judgment in exercising their responsibilities. As Deputy Chief Dagley said when he testified, all law enforcement officers must assess the impact a particular situation has on health and safety and they receive the necessary training to deal with such situations. If they believe their personal safety is at risk, they hold back and request assistance. It is no different for customs officers. Revenue Canada does not expect these officers to take risks. This will not change with the coming into force of Bill C-18.
There was unanimous consent to extend these powers to customs officers. We consulted with customs officers, the CEUDA, police forces and special interest groups such as Canadians Against Violence and Child Find Canada.
Consultations are ongoing. We will take into account the concerns and views of customs officers. The team responsible for implementing the legislation has already begun to consult with employees and CEUDA representatives across the country, whether stationed at small, medium-sized or large customs posts. Virtually all officers have expressed support for the bill and are enthusiastic about seeing it implemented.
We are most encouraged by this. It reflects widespread support for this initiative to extend the powers of customs officers. The support of employees will make our advance work easier, because we cannot succeed without these individuals.
[English]
Senator Beaudoin: You say that you have come to the conclusion that it is not necessary for officers to be armed. What are they to do in a situation where their security is in danger?
Mr. Girard: If it is a question of their personal safety, they are trained to withdraw from the situation. I would note that in the current application of their duties with respect to prohibited goods entering Canada, several hundred handguns or rapid fire weapons are seized, one at a time from individuals who may or may not be dangerous, by unarmed Custom inspectors every year. In situations where there is a perception of danger by the officer, as a result of training and/or instinct, that officer is fully supported in withdrawing from the situation and in not putting his or her health and safety at risk.
Senator Beaudoin: If they need help, could they obtain it rapidly?
Mr. Girard: They would note the incident and call the police right away.
Senator Beaudoin: The police might be far away.
Mr. Girard: That is possible, but at least the safety of the officer is not jeopardized. First, we would not admit the person into Canada. If the person chose to run the port and enter Canada, he will have committed a second offence and the police would be involved in that as well. Running of the port would also involve the RCMP.
Senator Lewis: The clause which provides these powers for customs officers says "a designated officer who is at a customs office and is performing the normal duties of an officer." All the discussion this morning seems to be about persons entering Canada. What about people leaving Canada? Are there any normal duties of a customs officer at the border with regard to that?
Mr. Girard: The relationship there would be to goods leaving in the possession of a person, not the person himself or herself.For example, we would require an export permit before certain strategic goods could be exported to certain countries.
Senator Lewis: Yes, there are certain restrictions.
Mr. Girard: That is where the officer would be playing his or her role.
Senator Lewis: At the border crossing at Windsor, for example, is there surveillance on people leaving?
Mr. Girard: No.
Senator Lewis: That would not be normal?
Mr. Girard: No, it would not.
Senator Lewis: If a customs officer observes a motor vehicle being driven by an obviously intoxicated person, I take it that is left for the people on the other side of the border to deal with.
Mr. Girard: Persons exiting Canada are not obligated to report, but persons exiting Canada with goods are obligated to report the goods. I did not want to become technical, but in that case I would suspect that at an average port the Canadian Customs inspector would phone the Customs border point in the United States simply to advise them.
Senator Lewis: They would tell them that there is a drunk on the way.
Mr. Girard: We also call them dangerous people. Three thousand pounds of steel can be quite a weapon.
Senator Lewis: If a customs officer observes a firearm on the seat of a car crossing the border, would that fall under the criterion of prohibited goods? Would they feel obligated to stop that car, or could they, or would they simply notify the American Customs office?
Mr. Girard: We could certainly conduct a subsequent investigation of the person if we suspected that in plain view there were firearms being exported from Canada, but we could not examine them to know whether they were prohibited. We could only pass on the information and conduct a subsequent internal Canadian investigation with respect to not a breach of the Customs Act per se in some cases but rather a breach of the Export and Import Permits Act. We would not be conducting an investigative role or taking action right then and there. Again, it might be in the best interests for our Canadian officials to pick up the phone and call our friends to the south to indicate that someone is crossing, or appearing to cross the border, armed. We both share the same concerns.
Senator Lewis: Or they could chose to say, "Fine, good riddance."
[Translation]
Senator Nolin: You mentioned a nine-month delay between the actual royal assent and the coming into force of the legislation. Does the department intend to reach agreements with the various police forces -- I am thinking in particular about provincial and municipal police forces -- to ensure that the implementation process goes smoothly? Is this your intention? Perhaps agreements of this nature are already being negotiated.
[English]
Mr. Girard: As a practical matter, we certainly want to have accords in place with everyone, whether formalized or in the form of a memoranda of understanding or just an understanding among the enforcement community. It is our intention to have all of this in place. A major part of our consultations has been to ensure that the response times are appropriate. We are cognizant of the two-hour limitation and the Charter restrictions to which Mr. Roy referred. We want to ensure that we act with all dispatch.
Our aim is always the same -- the protection of the Canadian public. We do not have an interest in holding these people any longer than absolutely necessary. We fully understand the confines and restrictions. We want to have accords in place, either verbal or based on our long-standing relations with these police forces in municipalities, to ensure that we can act as expeditiously as possible and in the interests of the protection of the Canadian public. Again, we have relationships with all of the agencies and organizations to which you referred today.
This is an enhancement of power, not a brand new power coming from nowhere. We confront dangerous individuals on a daily basis, and we often must seek the assistance of the police. This will be in addition to what we do now.
[Translation]
Senator Nolin: How many customs posts are there along the Canada-US border?
Mr. Girard: A total of 365.
Senator Nolin: Discounting the large cities -- I am thinking mainly here about small border points between Vermont and Quebec because these are the ones I use -- and setting aside Bill C-18 for the moment, in terms of enforcing the current legislation, are cooperation agreements already in place with municipal and provincial police forces?
Mr. Girard: We always deal with the provincial police at small border points. There are no municipalities in close proximity to these locations. The problem we have today is with border points in large cities and that is what we are trying to address through this legislation. I am talking about Windsor and other customs posts. The small border points do not pose a problem.
Senator Nolin: Someone who is intoxicated will not cross over at a point where a roadblock has been set up. Instead, he will choose a back road. These become the points of entry of choice of Canadians coming home late at night after having had one too many drinks in United States or after a day of skiing or après-ski activities. They are going to choose a customs post that is not manned at night. I do not know if there are still any posts like this left.
[English]
Mr. Girard: You are quite right. One of our areas of expertise today is targeting risk assessment and risk management. We can apply these same principles to all manner of ports.From time to time, we can descend upon a port like the one you described and do a 24-hour stint or examination or verification session to determine if we have a problem. If we do, it becomes similar to the Ride program, but for all customs reasons. We have means of monitoring the ports, by remote fashion in many instances, to determine whether, as a result of this initiative, the traffic increases at a port which may be near a busier port. As soon as we see that happening, we have the flexibility to respond quickly to address the problem -- within hours.
Senator Nolin: I am concerned about the Charter question. Suppose an agent at a small port is forced to detain someone, but the provincial police do not answer the phone because it is three o'clock in the morning. I am concerned, because the person who is detained has rights. We want to ensure that Bill C-18 does not contravene the rights of that person. Usually, the laws are fine, but the way they are implemented can be a problem. Lawyers are very good at finding those areas.
Mr. Girard: Certainly, senator, it is something that we have considered. In previous discussions with this committee, we have indicated that in some of those areas we actually need to build suitable holding cells. As my friend Mr. Roy said, we have the two-hour restriction with respect to the breathalyzer and the 24-hour restriction with respect to bringing a person before a justice of the peace. We feel ourselves no less bound by those requirements than we would other circumstances, regardless of size of the port.
We do not anticipate this will be a routine occurrence. Other than the impaired driving offences, the three offences we are trying to target by this bill are serious. It is quite possible when we arrest someone to call for immediate assistance from other customs personnel to ensure the safety of the public and to also impress upon the police the need to respond as efficiently and effectively as possible.
[Translation]
Senator Nolin: You have just drawn my attention to a small detail. Is this how you plan to interpret Bill C-18 before a justice?
[English]
Mr. Girard: No, the police have to do that.
[Translation]
Senator Nolin: You have the authority to detain someone and to subsequently deliver that person to a peace officer. Is that correct?
[English]
Mr. Girard: But the whole period is 24 hours, senator.
[Translation]
Senator Nolin: I understand, and that is why earlier, I asked a question about the word "forthwith" contained in a Criminal Code provision. "Forthwith" means "as soon as practicable." This means that there must be some facility on site for detaining the person in question, so that that person can be delivered to an authorized peace officer at the earliest opportunity. Hence my question to Mr. Roy concerning the time frame involved. Everyone should agree that a person should be detained, turned over to a peace officer pursuant to section 2 of the Criminal Code, and the matter brought before a justice, all within a 24-hour period.
Senator Joyal: Mr. Girard, do you have an agreement with the QPP or the OPP whereby you exchange information about vehicles that are being sought?
[English]
Mr. Girard: There is no accord of that type, senator. We have a look-out system with respect to vehicles, but those would be vehicles that have previously contravened the Customs Act, which indicates a propensity for doing such a thing. We can, if necessary, but it is stretching the system and is not automatic, determine what time a vehicle left Canada and what time it returned. However, it is not routine to do that. It is very labour intensive and takes a considerable amount of capacity in the system.
Senator Joyal: Does this bill now give you the capacity to enter into agreements with police agencies? With computerized systems, it is very easy to punch the plate number into the system and have a code come up if that plate had been researched by the police for an infraction or whatever reason the police might want to trace that vehicle.
Mr. Girard: Per se, no, but the bill does give us the capacity to arrest people for whom an arrest warrant exists, and we will determine that through the Canadian Police Information Centre, CPIC computer, which has that information in what we call "look-outs". It is not a means whereby we gather information and provide it to internal police forces or agencies in Canada. It is the other way round. We access their system to determine if there is an arrest warrant for an individual. That is the proposed methodology. It is not a methodology whereby we would provide information to internal police forces for investigative purposes. That is not our role.
The Chairman: This bill does not allow you to go on a fishing expedition.
Mr. Girard: It does not.
Senator Joyal:A person coming to a border in a vehicle might have that vehicle checked for all kinds of infractions. It might be in a criminal case because there was a bank robbery and this is the vehicle that was reported, or it might be that the vehicle has been reported for highway code infractions or other things. Now that your customs agents are police agents, I am concerned to know if we are now is giving you additional power to enter into agreements with police agencies to search the plate number of a vehicle. With the computerized system, it is so much easier to enter the number. By just entering the plate number in your system, the code will immediately appear on the screen. We know that.
Mr. Girard: With respect to the various situations you have described, in some cases the answer will be yes, but in most cases the answer will be no. If the police advise us that your vehicle is stolen, that is one of the objects of this bill, the recovery of stolen property. If the police advise us that there is a warrant out on you as an individual, that is one of the purposes of this bill. I can think of a situation where you may have had any number of unpaid parking tickets but have yet to have a warrant issued for your arrest. If there is no warrant issued for your arrest, we are not concerned about your parking tickets and this bill does not give us the power to deal with that. If you are wanted on a warrant for not having paid your parking tickets, this bill will have your name pop up in the computer, as you put it. It is an arrest warrant, not a parking ticket. I do not want to confuse the two.
Senator Joyal: What you are saying now is important, because when they ask for your name, they just ask for the surname. When I said, "Joyal," because of the accent, they immediately tried to determine if I am Canadian or not. If the customs agent has the impression that I am Canadian, they immediately ask where you live and then we go to another set of questions.
If you say that you now have the power to check if I am under warrant, then you will ask for more than just my last name. You will ask for my first name and perhaps my middle initial, because there might be more than one Joyal. It means there will be further checks and more questions asked at the border than there were previously.
Mr. Girard: There would be, but only so much as is minimally necessary to verify the information and the identity of a person. We do that many times today for citizenship and immigration purposes. We would do it in future for purposes of arrest warrant. However, we will not ask everyone these questions and then look to see if there is a warrant for your name. We need to see the name "Joyal" before we ask you more questions. It is not a fishing expedition at all. If we have a legitimate concern, we will ask a few more questions. The intention is to be minimally intrusive.
The issue is not to enable our customs inspectors to have any more powers than they have today. Today they have the power and you are compelled to answer all reasonable questions put to you by an officer for the purposes of the Customs Act. You must do that today.
Senator Joyal: I know that.
Mr. Girard: We are only adding to that, on a parallel basis, the possibility of asking you some additional questions about middle initial with respect to any concern about an arrest warrant, but we must suspect that there is a warrant for you before we engage in a dialogue or question session. We are not fishing around for it.
Senator Joyal: Did you check with the privacy commissioner with regard to the the questions you will now be asking citizens?
Mr. Girard: Not on that particular issue, senator, but we certainly have had considerable experience with exactly the same practices and processes under the provisions of the Customs Act, without difficulty.
Senator Joyal: I put that question to you because in the past I was asked for my name, and I answered. The person who was with me in the car was asked for their name, and they answered. The next question was, "What is the relationship between the two of you?" Do you feel that is needed in the context of entering Canada?
Mr. Girard: Again, senator, it is often difficult to second-guess what may have happened on a given day, but it sounds to me like that may have been an immigration issue and the officer was just asking an additional question. I would not know the circumstances, but that would be my first supposition.
The Chairman: Senator Joyal, because you have some legitimate concerns here, this may well be a matter you would wish to discuss with Mr. Girard later.
Senator Moore: I wish to follow up on the last point raised by Senator Nolin. How is the time of detention recorded or logged?
Mr. Girard: The clock on the 24 hours starts at the point of arrest.
Senator Moore: Is there a written record?
Mr. Girard: This is where our training comes in and what we currently do. It is very important for us to keep a log and record of the processes as we go along. Like other peace officers, our officers have the typical little black notebook in which they keep their records. That is where it would be noted.
Senator Moore: Would the detainee be given a copy?
Mr. Girard: Not of the notebook, but the detainee certainly knows the moment at which he or she is arrested because he or she is told, "You are under arrest," and given their Charter rights.
Senator Nolin: Are they told they have access to a lawyer?
Mr. Girard: Absolutely.
Senator Moore: Is it, "You are under arrest as of 12:30," or just, "You are under arrest"? He or she may not be wearing a watch. Are they given the time? I am concerned about the start-up of the clock and who has the final say as to what the starting minute was.
Mr. Girard: The question of when an arrest takes place has often been an interesting discussion in the common law. In cases of this nature, the suspect or the individual will be told, "You are under arrest." If the person is not aware of the time and the officer has noted the time in his or her book, and if there is any perceived oversight in that regard, I am certain it would be cleared up when the person exercised his or her right to contact a lawyer.
Senator Moore: The detainee is put into the hands of a police officer who takes the detainee to a justice of the peace within 24 hours.
Mr. Girard: Yes, within 24 hours.
Senator Moore: Is that police officer also given an official record of the time of arrest so that he knows that the clock has begun to run an hour before he got there and he has one hour, if it is a breathalyzer offence, to get to the machine?
Mr. Girard: We are sensitive to that. We consider it a key element. We know the police are sensitive to it, as they have been working under that regime for years. Part of the handing over of the arrestee to police would include that very pertinent information, which we consider especially critical in the case of a breathalyzer due to the strict time limit of two hours and no less critical but somewhat less urgent in the case of the 24 hours before the justice of the peace. Our officers will be fully and completely trained in that regard.
Your suggestion is a good one. We will consider in the training the assurance that the arrestee be advised of the time of arrest as well. It is a point that I find of interest.
Senator Moore: That would be interesting for the defence. Mr. Roy, do you have a comment?
Mr. Roy: Yes, I have something to add on the question of arrest and what can happen. I would remind honourable senators that the Charter already provides for strict rules for law enforcement when someone is being arrested. On arrest or detention, everyone has the right to be informed promptly of the reasons therefore, to retain and instruct counsel without delay, and to be informed of that right. There is that obligation on law enforcement officers upon arrest. The "arrest" takes place when you refrain someone from going where he or she wants to go.
At the end of the day, the 24 hours that we have been talking about can be a bit of a red herring. The person detained and arrested will be in touch with a lawyer. If that person is not brought before a justice of the peace within 24 hours, the lawyer will bring an application for habeas corpus with most probably some sort of application for damages. The rights of detainees and arrestees are well protected under our law. What is more important -- and I am glad that Mr. Girard told you about this -- the training that is to be provided to custom officers will be very clear in this regard. It must be.
Senator Moore: We heard evidence from other witnesses that the incidence of impaired driving cases is very frequent. Being able to address that law in the Criminal Code by having a two-hour time limit is helpful. Someone must have a record. That is all I am saying.
Mr. Roy: Yes, definitely.
Senator Corbin: Great expectations were created in the mind of the travelling public under free trade and the open borders concept. However, I have yet to see them happening. We seem to be going in a trend contrary to the European mindset in this respect. Do you have any comments on that?
Mr. Girard: The European concept is somewhat different because they now have external borders around the European Union. They can travel freely from country to country. I do not find it any easier entering Europe than I do entering Canada. I find that they have the same requirements and strictures that we do.
If it is a question of timing, it seems to me that the average length of time you would spend at a primary examination on the highway would be 20 seconds or less, on average, but there are always exceptions. Commercial traffic for support of major industries such as the automotive industry crosses the border and is released on minimum documentation or on electronic data interchange without stopping. We are as good as or better than -- if I may be so bold to say so -- the Europeans in regard to our efficacy, efficiency and speed.
Against that, the people in our Directorate of Contraband and Intelligence Services are very dedicated and must work hard in terms of risk assessment, targeting risk management in order to allow the wheels of commerce to turn as fast as they can, to allow people to cross the border as efficiently as possible, while at the same time protecting Canadians.
As part of our mandate with this bill, we see the protection of Canadians and society. The behaviours we are trying to address are of concern to every Canadian citizen. Our statistics and research, including some anecdotal evidence, tends to indicate that when it becomes public knowledge in areas such as Windsor and Sarnia that every customs and primary inspection line is staffed by an officer who has the capacity to request a breath sample if reasonable grounds exist, the incidences of impaired driving at the border will drop dramatically.
The Chairman: To wrap up, I have a question about the crucial area of training. Representatives from the Customs Excise Union told us that they had learned that Revenue Canada officials had entered into talks with the RCMP about establishing a memorandum of understanding about border responsibilities but that these senior level talks had broken down. What is the situation now? These senior level talks will be absolutely essential in the training process.
Mr. Girard: It may well be. I cannot say I am privy to the same information as the union. Therefore, I may be at a slight disadvantage in responding to your question.
There is certainly no difficulty in entering into discussions and negotiations with our friends in the RCMP with respect to training and skill sets that would be required, both in terms of seeking their assistance and experience in that regard and in consulting them in general. The talks to which the union may have been referring -- and I must speculate here -- may have been related to the much larger issue of the government's program review which was put into place some years before. They may relate to the distinctions between the border patrol between border points, which is the responsibility of the RCMP, and the border points themselves, which are the responsibility of customs.
I can only add that, in my estimation, the talks to which the union refer as having broken down neither reflect nor impair the efficient training of our officers with respect to the essential needs that have been identified.
Senator Joyal: If the United States continues with their project of imposing visas on Canadians who are entering their country, the customs agents at the Canadian border will have the same information available to them on their computers, will they not? That is to say, the two countries can exchange information contained in the data that is entered into the computer when you cross the border into the United States. Could you confirm that?
Mr. Girard: No. The computers are not linked, but we have mutual assistance agreements whereby we can make specific requests for civic information. It must to relate to Customs purposes under our mutual assistance agreements and treatees with, in this case, the United States. We would not be able to gain immediate access to the United States computers. We do not have modem access, as you referred to earlier; nor do they. If they request information on a specific individual, they must justify that request. Similarly, if we request information, we must justify such request as being strictly for customs purposes.
This applies as well to other countries with which we have mutual assistance agreements. They are very clear. They are completely circumscribed that it must be for customs purposes and justified, if necessary. Also, it cannot be shared with third parties without the permission of the giver of the information. It is not routine access to any information that you have described; it is very proscribed and restrictive.
Senator Joyal: In other words, if we ever have to file visa forms with the U.S -- and we will probably need to describe the vehicle or how we are crossing the border in that file -- that information will be contained in the American computer at the border.
Mr. Girard: That is correct. It will not be in Canadian computers. We would need to have good reason for asking for it on a case-by-case basis. We could not ask for the entire memory bank of that computer. We would need a reason for asking for specific information.
The Chairman: If there are no further questions, I thank you all for attending here today.
Is it your wish that we proceed to clause-by-clause consideration of the bill now?
Senator Lewis: I move that we report the bill without amendment.
The Chairman: It is moved by Senator Lewis that the committee dispense with clause-by-clause consideration of Bill C-18. Is that the wish of the committee?
Hon. Senators: Agreed.
The Chairman: The motion is carried.
Senator Lewis: I move that we report the bill without amendment.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: The motion is carried, and the bill will be reported without amendment.
The committee adjourned.