FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 25, 1999

• 0936

[English]

The Vice-Chair (Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.)): I call the meeting to order. I believe we have a quorum now.

Today we're going to be considering Bill S-22, the Preclearance Act. We have a number of officials with us today. We have officials from Foreign Affairs, Justice, and Revenue Canada here to answer any questions any of the committee members may have, and of course we have Mr. Reed, the parliamentary secretary. Since we're late starting, we will just get on with this.

We have a submission that was received only on Thursday from the Canadian Bar Association, with some suggestions. Unfortunately it was only received in one language, and we're waiting for the translation. However, I believe Madame Debien is all right with us continuing with this.

[Translation]

Ms. Maud Debien (Laval East, BQ): Yes, but with some reservations.

[English]

The Vice-Chair (Ms. Colleen Beaumier): In the meantime, I'm wondering if, as we get to the clauses, the department would perhaps speak to each of these recommendations for amendments.

(Clauses 2 to 9 inclusive agreed to)

(On clause 10—Right of traveller to leave preclearance area)

The Vice-Chair (Ms. Colleen Beaumier): Shall we stand clause 10? Would the department like to speak to this?

Mr. David Preston (Chief Negotiator and Director, U.S. Transboundary Division, Department of Foreign Affairs and International Trade): By all means.

The provision itself relates to an issue that has been raised by the Bar Association previously, and that is the question of what trigger point there should be for somebody who is able to withdraw from the area.

• 0940

Essentially the premise underlying the bill is that anyone should be able to turn around and leave the area unless the preclearance officer has reasonable grounds to suspect that the person has committed an offence under the act. That principally is reflected in them making a false declaration or obstructing the officer in the execution of his or her duties.

So the Bar Association is suggesting that the provision that the person have reasonable grounds to suspect be deleted. In other words, you'd have the consequence of the person being able to remove themselves from the area, to withdraw.

It's important, from the point of view of establishing the ground rules, that there be a trigger point. Certainly from the department's point of view, it's in both Canada's and the United States' interest that if there are reasonable grounds to suspect that the person has committed an offence, the U.S. officer have the authority to proceed further with that individual. It would also apply in the reciprocal arrangement in the United States, whereby if somebody uttered a false declaration to our officers, they'd also be subject to the same situation. In other words, they would be subject to further investigation.

From our perspective, it's essential to have reasonable grounds to suspect. That reasonable grounds to suspect is consistent with the Canadian Customs Act. It's been reinforced in Canadian law through a decision in Regina v. Simmons. It has a clear basis in Canadian law, and it's also similar to American practice. So in a sense it's a universal standard that's applied, i.e. reasonable grounds to suspect.

Second, it's important that the Canadian Bar Association is saying it should be subject to section 24. If it's subject to section 24, it raises the question of reasonable grounds to believe. We can deal with that subsequently under section 24, but here again they're trying to raise the standard against which further proceedings may be taken with an individual coming into customs.

They haven't explained themselves, but that's essentially where I believe the Canadian Bar Association is coming from, and that's effectively where the department stands on this.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Madame Debien.

[Translation]

Ms. Maud Debien: Madame Chair, I hope that each time we request that a clause be allowed to stand, departmental officials won't list all of the reasons why they have decided not to make any changes. We can't hear from departmental officials until such time as we have obtained the French wording of the amendments proposed by the Bar Association. I'd like the clauses to stand without officials providing explanation each time. Once we have received the French translation of the Bar Association amendments, then we can group together all of the clauses that have been allowed to stand and the department can then explain its position to us.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Absolutely. That's an excellent idea.

Mr. Patry.

[Translation]

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Madame Chair, I disagree somewhat with my Bloc Québécois colleague. I certainly understand her position, but even though we haven't yet received the French translation of the CBA amendments, all of the officials are in attendance and I think we should take this opportunity to try and get a handle on the department's position. We could then proceed more quickly to adopt the clauses of the bill.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Mr. Patry, I don't think anyone would have a problem, though, if we just dealt at the end with the clauses that correspond to the proposed amendments by the Canadian Bar Association.

Would anyone have a problem with that?

Mr. Bernard Patry: The problem I'm facing with that is whether we are going to get the translation before we finish this morning. When are we going to get this Canadian Bar Association translation? If we don't have it this morning, that means we aren't going to wind up this morning. That's what I understand from Mrs. Debien.

• 0945

The Vice-Chair (Ms. Colleen Beaumier): But if we could just give them the opportunity to get here with it, then we can make that decision after we've gone through the other clauses. We can come back to these clauses that are in dispute, or to which there have been suggested changes.

Mr. Julian Reed (Parliamentary Secretary to the Minister of Foreign Affairs): Madam Chair, my information is that the translation was asked for for 9 o'clock this morning, so its arrival is imminent. I would agree with you and Madam Debien that it would be expedient to proceed with all of those that don't have these proposals in them.

The Vice-Chair (Ms. Colleen Beaumier): Yes, I think so.

So shall clause 10 stand?

(Clause 10 allowed to stand)

(Clause 11 agreed to)

(Clause 12 allowed to stand)

(Clauses 13 to 23 inclusive agreed to)

(Clause 24 allowed to stand)

(Clauses 25 to 27 inclusive agreed to)

(Clause 28 allowed to stand)

(Clauses 29 to 31 inclusive agreed to)

(Clauses 32 to 34 inclusive allowed to stand)

(Clauses 35 to 40 inclusive agreed to)

The Vice-Chair (Ms. Colleen Beaumier): Now we will go back. I don't believe the translation has arrived yet, has it?

We've just called over, and the translation is still not ready.

Madame Debien.

[Translation]

Ms. Maud Debien: I'd simply like to make one observation, Madame Chair. We are not objecting to this on principle or on a whim. Perhaps we could work out some kind of compromise. We still don't have the French translation of the amendments proposed by the Bar Association. Since I believe we're all acting in good faith here, maybe the officials could explain to us the nature of the proposed amendments to the clauses that we have allowed to stand and give us the department's position. As I was saying, we are not objecting merely for the sake of objecting, but because we want to understand clearly the nature of these proposed amendments which we feel are important. We want to know if the department as taken them into consideration and if so, why. Then we could go on to adopt the clauses.

• 0950

[English]

The Vice-Chair (Ms. Colleen Beaumier): Okay. That's more than reasonable.

[Translation]

Ms. Maud Debien: It's a question of trust.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Was the explanation for clause 10 satisfactory?

[Translation]

Ms. Maud Debien: Yes, it was fine.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Okay.

Shall clause 10 carry?

Mr. Bernard Patry: As amended?

The Vice-Chair (Ms. Colleen Beaumier): No, as it is.

Mr. Stan Keyes (Hamilton West, Lib.): Don't you want an amendment?

The Vice-Chair (Ms. Colleen Beaumier): No, this was the Canadian Bar Association's suggestion that had been sent in on Thursday.

An hon. member: What is the department's recommendation on the amendment?

An hon. member: You were late. They already explained it.

An hon. member: Okay.

Mr. David Preston: The department's recommendation is that it not be accepted.

(Clause 10 agreed to)

The Vice-Chair (Ms. Colleen Beaumier): Mr. Reed.

Mr. Julian Reed: Madam Chair, I don't want to unnecessarily delay this, but I should point out that this letter from the Bar Association was accompanied by no explanation whatsoever on any of these clauses, and it's very difficult for the officials to second-guess the Bar Association. They can only explain it within the framework of their own—

The Vice-Chair (Ms. Colleen Beaumier): And I think that's all Madame Debien is asking for them to give: a short, concise explanation. The bar did present these before committee two weeks ago, so I don't think any of them are a big surprise to the department. Maybe the official arrival of them has been, but I don't believe—

Mr. Julian Reed: I might point out too, just for information, that the last time the committee sat, it was obvious that the Bar Association itself was not unanimous in its position, because the lawyer in charge of transportation making recommendations to the Bar Association was at odds with representatives from the association.

The Vice-Chair (Ms. Colleen Beaumier): Yes, there's no question about that. However, there are only four or five of them here, and if Mr. Preston is brief, I don't think it's an unreasonable request.

Madame Debien.

[Translation]

Ms. Maud Debien: Contrary to what the parliamentary secretary has just told us, in a letter sent to us by the Canadian Bar Association dated May 12, rather brief, albeit concise explanations are given to justify their reservations concerning each clause of the draft legislation. I trust officials have read this letter and once they provide their explanations, they will take the CBA's objections into account so that we are on the same wavelength.

Mr. Preston, why did the department reject the CBA's recommendation regarding clause 10?

Mr. David Preston: It rejected it because regulations are necessary.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Madame Debien, clause 10 has been carried. Could we deal with clause 12?

An hon. member: No.

[Translation]

Ms. Maud Debien: Could you explain that briefly to me?

• 0955

[English]

Mr. David Preston: The argument given by the Bar Association is that they want to have a voluntary system of withdrawals. The difficulty is that in the absence of a set of rules about when a person can turn around and do a U-turn, leave the area, it's not clear what law would apply. The Americans would be able to apply whatever set of rules they wanted, including the threat of taking away the benefit of the doubt and not allowing the person to go into the United States.

They have proposed deleting the provision that it should be subject to reasonable grounds to suspect that the person has created an offence. It's certainly in the Canadian interest as well as the American that we'd be able to detain people who make false declarations to preclearance officers or who obstruct them in the course of their duties. So the idea here is to apply a standard.

There is a trigger. If the person makes a false declaration or is suspected, on reasonable grounds, of making a false declaration, that person can be then further processed. It's consistent with Canadian customs law. It is consistent with American law. It's consistent with court decisions. Therefore that's the appropriate standard to be applied in an airport situation.

The Vice-Chair (Ms. Colleen Beaumier): Are you satisfied?

Mrs. Maud Debien: Yes.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

(On clause 12—Protection of persons acting under authority)

Mr. David Preston: I'll turn it over to my legal colleague in a minute, but I'll just explain the basic principle lying behind clause 12. It provides that a preclearance officer is justified in using necessary force for the purpose of conducting his or her duty. The action must be performed in good faith and based on reasonable grounds. As to whether it's necessary to put in the word “reasonably”, I will turn to Lucie Angers from the Department of Justice.

[Translation]

Ms. Lucie Angers (Counsel, Criminal Law Policy Section, Department Of Justice): Thank you. This clause draws its inspiration from a provision in the Criminal Code which protects law enforcement officers. There are two components to this clause. Firstly, when one has the authority to do something, every reasonable effort must be made to carry out one's duty. However, only reasonable force can be used in the process. For example, a person who is authorized to examine goods may open a piece of luggage to examine the contents. Secondly, while that officer has a duty to carry out, he may only use reasonable force. For example, a person cannot place of bomb in a suitcase in order to open it up. While this is a somewhat farfetched example, I think that would be a good example of someone using excessive force.

We are rejecting the proposed amendment because, in our opinion, it somehow makes the clause less forceful in scope. If we include the words “as much force as is reasonably necessary”, we think that this takes something away from the provision, as this is one notch down from “necessary force”. “As much force as is reasonably necessary” is a reasonable criterion, admittedly, but “necessary force” is a far more restrictive. Basically, it's a matter of degree, and also a matter of intent.

The clause in question stipulates that an officer must have reasonable grounds to use necessary force. Therefore, we fail to see what purpose this amendment would serve.

Our second reason for rejecting it is perhaps also our main one. This clause draws its inspiration directly from the Criminal Code. The text replicates a section of the Criminal Code that has been in force since the 1800s. Any precedents involving the use of necessary force could not be invoked if the text of the clause and the criterion used were amended.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

(Clause 12 agreed to on division)

(On clause 24—Detention of travellers)

The Vice-Chair (Ms. Colleen Beaumier): Mr. Preston, did you wish to speak to clause 24?

Mr. David Preston: Yes.

Briefly, the CBA's concerns, despite their number, focus on only one or two central issues. The trigger here is the question of when a preclearance officer may detain a traveller. It authorizes the preclearance officer to detain a traveller if the officer believes on reasonable grounds that the traveller has contravened section 33, false or deceptive declaration, or has committed an offence under any Canadian federal act that is punishable by indictment or on summary conviction.

• 1000

And very importantly, it requires that the preclearance officer bring that traveller as soon as possible into the custody of a Canadian police officer. This is fundamental to the way we have approached this. The trigger, as I mentioned, is the false declaration, but the person must then be turned over to a Canadian officer without delay, or as soon as possible, for further processing.

The Canadian Bar Association is suggesting that “has contravened section 33” be deleted, i.e. that the false declaration not be the trigger for the person to be detained. For the same reasons referred to under clause 10, for the integrity of the system, you need to have a trigger point.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

(Clause 24 agreed to)

(On clause 28—Forfeiture of seized goods)

The Vice-Chair (Ms. Colleen Beaumier): Mr. Preston.

Mr. David Preston: What they're suggesting here is changing “preclearance laws” to “applicable Canadian laws, if any”. They're not clear on why “if any”.

The issue here is that preclearance laws refer to that limited set of U.S. laws that the Americans may enforce on Canadian soil. Those are related to the entry of people into the United States with their goods. They are customs and immigration laws. So what's said in clause 28 is that goods may be subject to forfeiture under U.S. customs and immigration law. What they are suggesting instead is that it be subject to Canadian law.

Essentially, in order to do their job, Americans must have the power to have goods forfeit to them. So seized goods, except those that are required for evidence under Canadian law or that are illegal to possess in Canada, would be subject to this U.S. forfeiture regime. Appeals of any of those seizures would follow the process pursuant to U.S. law. So it's consistent with the notion that the U.S. officers are processing people for entry to the United States. It follows on from that that the forfeiture should be to the United States.

In the case of a criminal offence, of course the matter would then be turned over to Canadians, so this becomes part of the underlying premise that the Canadian law underlies the regime.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

(Clause 28 agreed to)

(On clause 32—Use and destruction of passenger information)

Mr. David Preston: Clause 32 does not have a paragraph (h), so I assume this is a typographical error on the part of the Bar Association. They may mean paragraph 32(b), but I would be speculating on that.

(Clause 32 agreed to)

(On clause 33—False or deceptive statements)

Mr. David Preston: This is the clause that has been alluded to in some of the other clauses as well, which is the creation of an offence to knowingly provide or participate in providing false or deceptive statements to a preclearance officer with respect to the preclearance of things into the United States.

The default of a fine would not result in imprisonment. This was the subject of amendment in the other place. It prohibits that there should be a criminal record created for an offence. If I might, I'd turn again to my legal colleagues to explain why the word “material” is unnecessary in the context of the bill.

• 1005

[Translation]

Ms. Lucie Angers: It's just that the law already states that the questions a preclearance officer may ask must relate to his duties and to the preclearance legislation. The officer may not ask outlandish or irrelevant questions. That's the main reason.

Secondly, again it's a question of existing case law. This clause is based on identically worded provisions in the Customs Act and the Immigration Act. If we were to add the word “material”, these provisions could be interpreted differently. We don't know that for a fact, but we don't think we need to put new wording to the test. These are the two reasons why we believe this amendment may not be appropriate.

[English]

(Clauses 33 and 34 agreed to)

The Vice-Chair (Ms. Colleen Beaumier): Shall the schedule carry?

Some hon. members: Agreed.

Mr. Stan Keyes: Madam Chair, on that paragraph 32(h)—

Mr. Bernard Patry: There's no (h).

Mr. Stan Keyes: I know there's no (h). That was the explanation from Mr. Preston.

But in looking at that suggestion, Mr. Preston, through you, Madam Chair, reading through clause 32, I think I can see what the Bar Association is getting at. Paragraph 32(1)(a) says:

use any specified passenger information only in the administration and enforcement of this Act and preclearance laws;

The Bar Association is recommending that we add to that, “with respect to the entry of specified passengers”.

Maybe Ms. Angers can give me an explanation. I'm just concerned. Are we talking about any person who lands at that airport, or are we talking specifically about those specified passengers who have something to do with coming through the system?

Mr. David Preston: There are a couple of answers. In fact I don't want to disagree with you. It may equally apply to paragraph 32(1)(b), so there is a question as to whether—

Mr. Stan Keyes: Or both.

Mr. David Preston: Yes, it may apply to both.

The basic principle here is specified passenger information. They're suggesting you add “with respect to the entry of specified passengers”. It would then refer to the administration and enforcement with respect to the entry. So what they're doing is talking about the central provision we spoke of earlier, which is that the only laws they have are laws that relate to the entry of people and their goods to the United States.

The essential premise here was that there would be a specified list of information that would be prescribed by regulation under paragraph 38(1)(c), about any person who is travelling by aircraft to the United States and whose travel route provides for arrival in Canada in an in-transit area.

That information is set out in the text you have under clause 38. It specifies what information may be provided in the form of advance information. This is all related to the fact that the person is seeking entry to the United States, so it comes back to essentially the same argument.

Like you, we've just seen this text as well. It's a bit of a puzzle as to whether they intend to do it between (a) and (b). If I'm not corrected by my legal colleagues here, it applies equally, and from our perspective is unnecessary.

Mr. Stan Keyes: I can see this suggestion as maybe just a point for greater clarification on (a) and (b).

• 1010

Can we foresee a problem of any kind? If a passenger is coming through preclearance to go to the United States, and all of a sudden all this information is put forward, the way this clause reads, can there be a problem with that specified information being applied to those passengers who are not preclearance passengers?

Ms. Lucie Angers: No, we don't believe there would be a problem in any event. The problem is understanding why they want that in, because we believe the meaning of the clause is quite clear as it is and would include that as well.

Mr. Stan Keyes: Okay. Thank you.

Thank you, Madam Chair.

Mr. David Preston: I might add a point of clarification. This information only applies to in-transit passengers. It doesn't apply to you and me going to the United States. It applies to people who are coming from third countries and transiting through Canadian airports on the way to the U.S.

Ms. Susan Gardiner (Deputy Director, U.S. Transboundary Division, Department of Foreign Affairs and International Trade): There is a definition of that. Under clause 29 it specifies who this would apply to. Look at clause 29.

The Vice-Chair (Ms. Colleen Beaumier): Thank you. I shall continue.

Shall clause 1 carry?

Some hon. members: Agreed.

The Vice-Chair (Ms. Colleen Beaumier): Shall the preamble carry?

Some hon. members: Agreed.

The Vice-Chair (Ms. Colleen Beaumier): Shall the title carry?

Some hon. members: Agreed.

The Vice-Chair (Ms. Colleen Beaumier): Shall the bill carry?

Some hon. members: Agreed.

The Vice-Chair (Ms. Colleen Beaumier): Shall I report the bill to the House?

Some hon. members: Agreed.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

The meeting is adjourned.