Report of the Standing Senate Committee on National Security and Defence (Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, with amendments)

By: The Hon. Pierre Dalphond

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Peace Tower and Parliament, Ottawa

Hon. Pierre J. Dalphond: I rise today in support of the adoption of the report. I just wanted to point out that section 99 of the Customs Act, which we are currently discussing, is entitled “Examination of goods.” It states, and I quote:

99 (1) An officer may

(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited

(d) where the officer suspects on reasonable grounds that an error has been made in the tariff classification . . . examine the goods

(d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined . . . examine the goods

(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods

(f) where the officer suspects on reasonable grounds that this Act or . . . any other Act of Parliament . . . have been or might be contravened in respect of any conveyance or any goods thereon

That means any act of Parliament administered or enforced by the officer.

To inspect a package, a bus, or to ensure that the right rate has been applied, the officer must have reasonable grounds to believe. I would be more convinced if the government changed these other sections of the legislation to say that, for all these other sections there has to be reasonable concern, but no. Regarding the computer, the thing most closely linked to your privacy, the one thing that contains all the data and can describe you more accurately than you can, we cannot decide that it warrants a lower threshold than all these elements that are necessary formalities to prevent a firearm from being imported to Canada.

We are told about pedophilia. It is important. It is serious, but we cannot allow computers to be searched under the guise of wanting to counter pedophilia by accepting a lower threshold than the threshold for allowing packages to be opened to verify whether there are firearms inside. The government is on the wrong track. If it wants to convince us that a lower threshold is possible — as suggested in Canfield by the Alberta Court of Appeal — then I invite the government to amend the other parts of the legislation to have the new proposed test apply everywhere. If there is no consistency in the legislation we cannot justify measures before a court. Thank you.

[English]

Hon. Salma Ataullahjan: Senator, would you take a question?

Senator Dalphond: With pleasure.

Senator Ataullahjan: I have been listening to the debate, and, at the risk of sounding ignorant, can you tell me what happens when you have a racialized person coming through and their phone is looked at? There is a lower threshold. What happens? I, as a Muslim, will sometimes have a prayer on my phone in Arabic. What happens if the border agent doesn’t understand what that says? How does that impact a racialized person or, in this case, a Muslim?

Senator Dalphond: Thank you, Senator Ataullahjan, for this question.

I’m not the expert on the issue, but there is one in this chamber. It’s Senator Jaffer. She made an important declaration at the committee study when she referred to exactly that type of experience and why she is always singled out in the line for a “random” check and sent to the second line. When she shows her green passport, they apologize and say, “Oh, sorry. It’s a mistake. We should not have called you for a second inspection.”

No doubt the system is not perfect. The current system is, according to some witnesses and the personal experience of Senator Jaffer, certainly deficient, because it seems to target some people more than others, especially after 9/11. Regarding the threshold that is being proposed, the evidence shown before the committee has illustrated that it is designed to codify the current practices of the customs officers.

Senator Dagenais asked an important question. He asked how many more employees they will need to teach these new criteria, because it’s a new test. Therefore, it will have to be explained carefully since it’s not a test that has been applied so far. It’s not the reasonable test that has been understood and developed by the courts. It will take time to flesh out.

How many more officers will you need? How many more training sessions? How many hours will you give to the officers to understand that new concept? The response from the border agency representative was, “No problem. We already have the training in place. We don’t need more people. That’s already what we do.”

What they are saying is that what they intend to do is to have this new threshold be equivalent to the current practice. But the current practice is in the guidelines; it’s not in the law. They say now that it’s in the law, it’s valid. I fear that, in practice, what is going to happen at customs won’t change with this new test. The old practices will continue under a new hat.

It’s important to me that we better define and flesh out the concept of reasonable suspicion or reasonable grounds to suspect rather than have a new test. This is the concept that has been recognized elsewhere in the act, so let’s be consistent. Either they change the whole act, or they change it only for computers, which is very unconvincing to me.

Senator Ataullahjan: Senator Dalphond, reasonable suspicion— what does that mean? Would that be different for every agent? Who decides?

Senator Dalphond: I was expecting to be brief, but I appreciate the questions. Regarding reasonable suspicion, the word “reasonable” has been defined by the courts as being objective. So it means the agent has enough indicia to reasonably suspect that something’s happening.

(1640)

And it’s interesting because when the customs agency representative spoke to it, he suggested an example. He referred to someone who is coming back from a country where it’s well known that sex with children can occur. The person has been away for a long period. The person is having difficulty answering the questions, seems to be nervous and is sweating. He decides to send him to the second line.

Many of us felt there were reasonable grounds to do it. If this is the type of person they would like to target, the “reasonable suspicion” test will be the test to apply. I’m not so sure that it’s going to become ineffective.

We have reference to Ontario and Alberta saying that the numbers have been going down since the judgment of the Court of Appeal of Alberta. It was not renewed and, therefore, since April, they have applied “reasonable suspicion” for all travellers coming to Ontario or to Alberta. They say the numbers went down drastically. Well, yes, numbers went down drastically, but who says why? Is that because they are more careful? Maybe it’s a good thing. Is it because they don’t want to enforce it just to come up with the numbers, so they can say, “You see where we are? It’s a different test, and we don’t do as many checks as we used to do.”

All of that needs more explanation. I think we were a bit shortchanged when we asked questions about the rate of success and about the more limited numbers of people who are checked. What kinds of materials are found? What is illegal? We were not provided much information about that. I’m not saying there won’t be any kind of operational impact on the way they do things. For sure, if we have “reasonable suspicion,” it will change things compared to what they do now, because they intend to continue to do what they do now.

Senator Jaffer: Senator Dalphond, one of the things that happens at airports, as we all know, is that we also have American pre-clearance officials. I think Senator Boehm asked this question almost every time: How are we going to educate American officials on this lower threshold?

What is your opinion? How is this going? Because they have a higher threshold. Now we must educate them to a lower threshold when their customs officials said their training is sufficient already.

Senator Dalphond: I don’t want to steal Senator Boehm’s fire. He had very good questions at the committee about that. But our “reasonable suspicion” and “reasonable grounds to suspect” criteria are known in Canada as well as in the U.S. I suspect that if we have that criteria, the U.S. officers will know what they mean. For sure it’s a higher threshold than what they apply now because, in the U.S., there are no clear cases about that. There is confusion about the state of the law.

Obviously, there will be some training, but if you have training in connection with a concept which is foreign to their law, it will be more difficult than to train them to a concept which is known to their law.

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