Second reading of Bill S-222, An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other ActsPublished on 19 June 2014 Hansard and Statements by Senator Wilfred Moore (retired)
Hon. Wilfred P. Moore:
Honourable senators, I rise today to speak to second reading of Bill S-222, An Act to amend the Canada Border Services Agency Act and to make consequential amendments to other Acts.
Honourable senators, Bill S-222 is the result of several years of building concerns regarding oversight of our national security agencies. We have all heard the call from various bodies to provide more oversight as the security establishment has evolved to possess many powers, which prior to the events of 9/11 were unprecedented in this country or indeed in the world.
The Canada Border Services Agency came into being on December 12, 2003, as Bill C-26, An Act to establish the Canada Border Services Agency, was introduced by the government of Prime Minister Paul Martin. The bill was in response to the terrible events of September 11, 2001, and the report of the Auditor General of 2003, which in itself was part of a broader effort entitled the National Security Enhancement Initiative, which was announced in Budget 2001.
The CBSA was a part of changing times. The attention of the world was focused, as it remains today, on the security of nations and their citizens in the wake of terrorist attacks on the United States of America and throughout the world.
The CBSA took over some of the responsibilities of the Department of Citizenship and Immigration, the Canadian Food Inspection Agency and the Customs and Revenue Agency by order-in-council under the Public Service Rearrangement and Transfer of Duties Act.
This was confirmed in the other place during the debate on Bill C-26 in 2004, and I quote:
[CBSA] has assumed the intelligence, interdiction and enforcement programs and the immigration program at ports of entry from Citizenship and Immigration Canada. In addition, it includes the import inspection at ports of entry program, previously with the Canadian Food Inspection Agency . . . .
In addition, the Minister of Public Safety was created in 2003, taking over the responsibilities of the Solicitor General to oversee the new domestic security department, Public Safety Canada. The new agency had assumed responsibility for 90 laws governing trade and travel and a major shift towards coordinating security at the border.
CBSA today is composed of a president, seven vice-presidents, and eight regional directors. The CBSA currently employs more than 12,000 people, and physically the CBSA operates some 1,200 service locations, 119 border crossings, 3 seaports, 3 mail centres and 4 detention centres. It was and is truly a momentous undertaking that continues to grow.
On February 10, 2014, Martin Bolduc, Vice-President of Operations at CBSA, when appearing before the Standing Senate Committee on National Security and Defence stated:
Last year the agency processed approximately 100 million travellers to Canada, cleared 5.4 million trucks and 14 million commercial releases. We made 93 seizures of child pornography and approximately 400 seizures of restricted and prohibited firearms. The agency also seized over $300 million worth of illegal drugs. Those numbers have been growing steadily over the last several years, placing increasing demand on Border Services.
Senators, no one is underestimating the important workload which CBSA faces every day. No one is questioning the quality of work performed by CBSA keeping Canadians safe. Indeed, we thank them for their work. There’s not a day that passes without those headlines informing of another seizure of illegal goods at the border. For example, there was a $9 million drug bust in Edmonton on June 11, and 16 kilograms of cocaine were seized at Pearson airport on May 30. These are a couple current examples of one aspect of the agency’s duties.
But CBSA is much different today than it was in 2003. The powers possessed by this agency are now quite startling, even in comparison to other agencies of the security establishment.
The report by Justice O’Connor in 2006 was probably the first official instance where more oversight into the CBSA was called for. It has been nine years since that report and still there is no oversight body for the CBSA. And there is no independent authority to whom a complainant can go to for a hearing of his or her complaint.
A major issue which has been at the forefront of complaints relates to the lack of oversight of the CBSA. Let me quote from Sukanya Pillay, Executive Director and General Counsel of the Canadian Civil Liberties Union, appearing before the Standing Senate Committee on National Security and Defence this past March.
The CBSA is an agency that enjoys sweeping powers, including law enforcement powers. CBSA officers can arrest, with or without a warrant, permanent residents or foreigners if they believe these individuals pose a threat to public safety or are illegally in the country. CBSA also has the power to detain foreigners and permanent residents, including asylum seekers. As mentioned, the CBSA also works closely with other agencies, including the RCMP and CSIS, in information sharing that the CBSA may rely upon in determining who may be a threat or who may illegally be in the country.
In a country such as Canada, we should be alarmed that such powers are wielded by an agency with no independent oversight, with no recourse for those who have been subjected to these powers in a manner allegedly inconsistent with the guidelines and rules of the agency.
CBSA is also running its own informant program. On January 15 of this year, various media outlets reported about a briefing document prepared by the Minister of Public Safety. It describes a situation where these informants have a confidential human source officer, and are labeled a “CSH participant.” Further, the note describes covert surveillance by CBSA officers. The danger of this type of activity is not only to the privacy of those under surveillance, but the lack of oversight for the agency, which could lead to abuse.
Privacy concerns have been expressed by the Chantal Bernier, Interim Privacy Commissioner, when appearing before the Standing Senate Committee on National Security and Defence in April 2014. I quote what she said:
. . . over the past three years, we have expended considerable effort examining privacy risks connected with border security. In our communications with CBSA and other agencies, we have flagged concerns touching on the widening scope of sensitive personal information being collected, the expanding uses and sharing of this information with authorities, the need for clear complaint and redress mechanisms and retention periods for sensitive personal information that would have to be justified.
This is a major problem as information can be shared with third countries under the current regime, third countries which may have unenviable human rights records. The risk in this is obvious and cuts to the heart of the O’Connor report as well.
It was also revealed through an access to information request that CBSA approached telecommunications companies over 18,000 times in 2012, looking for information about customers, and, in those requests for records, only 52 involved a warrant.
CBSA says 99 per cent of the time they’re looking for basic subscriber information. In any case, they can compel the information through ministerial authority, not judicial. CBSA has been forthright in this disclosure, which is commendable, but, as we have seen in the case of CSEC, an independent body should be overseeing this type of information gathering.
Colleagues, under access to information, documents obtained by the media disclosed there were 1,428 complaints filed against CBSA in 2008-09, and a further 1,100 complaints registered against CBSA in the first half of 2011. Again, these numbers are obtained by access to information. They’re not readily available to Canadians. The nature of these complaints is unknown, but we know from the press that they cross a very broad range.
I spoke in this chamber before about an elderly yachtsman who single-handedly sailed into Canso, Nova Scotia, on July 1, 2010. Upon learning that this historic port had no customs or immigration office, he contacted the RCMP. I should note that Canso does not have a CBSA office. If you arrive there from sea, you can telephone CBSA for an inspection during civil work hours, Monday through Friday, 8 a.m. to 4 p.m. Despite all the hype about border security, this is the case in pretty much every port and cove in sea-bound Nova Scotia.
A member of the RCMP came and checked out the visitor’s papers and his yacht. Following his inspection and finding everything to be in order, the Mountie told him to report to Canada Border Services Agency when he got to Halifax. He was on passage to Lunenburg where his daughter and family planned to visit. On arriving at Halifax a few days later, the yachtsman officially reported to CBSA, and that is when his nightmare began.
Honourable senators, since he arrived at a wrong port, that is, Canso, which does not have a CBSA office, armed border guards turned his world upside down. Searching for contraband, they confiscated his boat and tore it apart, throwing his food, stores, spare parts and gear all over the place and destroying an expensive refrigeration unit. I quote:
“It was like vandals had got in and trashed the place,” the skipper told Dan Leger, then Director of News Content forThe Chronicle Herald newspaper in Halifax.
Most upsetting was the unprofessional bullying behaviour towards this visitor, yelling at him and intimidating the man whenever he protested their actions. They accused him of consorting with criminals in Vancouver, a port he had he never visited. They repeatedly called him a liar and threatened him with jail. He was told he had no civil rights and they could do with him what they pleased.
The agents did not find any contraband but demanded he pay a $1,000 penalty for landing at a wrong port. They gave him 24 hours to pay or he would a face a $30,000 fine. They said they had entered his name into a database so that wherever he goes, he will be under suspicion.
This is but one example which cries out for an independent CBSA complaints process.
At the other end of the spectrum is the case of Lucia Vega Jiménez, who died in a CBSA detention centre in Vancouver in December 2013. The news of her death was released one month after it happened. The coroner’s inquest is being held, but, senators, this type of incident involving a Canadian government agency points specifically to the need for independent oversight.
When testifying before the Senate Standing Committee on National Security and Defence in February this year, Martin Bolduc, who I mentioned earlier, when questioned about this incident by Senator Campbell stated:
I know there has been a lot of inaccurate reporting in the media about this case. Yes, CBSA is fully cooperating with the coroner’s investigation.
But isn’t that part of the problem? We can obtain so very little information regarding the operation of CBSA. This situation alone confirms the need for independent oversight.
Colleagues, Bill S-222 has been written to respond to the concerns of those mentioned above and to the persons mentioned who were subjected to the actions they experienced at the hands of members of the CBSA. There is clearly a need for an independent oversight body for CBSA, a body which can investigate complaints and provide review for Parliament.
Bill S-222, as stated in its summary:
. . . provides for the appointment of an Inspector General of the Canada Border Services Agency with the authority to report on and make recommendations concerning the Agency’s activities and the capacity to receive and investigate complaints about the Agency.
The Inspector General would be appointed by the Governor-in-Council, after consultation with the leader of every recognized party in the Senate and House of Commons, and the approval of said appointment by resolutions of the Senate and the House of Commons. The appointment provides for a seven-year term with re-appointment for one or more further terms of not more than seven years each.
In the event of absence or incapacity, the qualified person may be appointed for not more than six months. The Inspector General shall have the rank and all powers of a deputy head of department. The Inspector General will have the power to hire staff on a full-time basis but also engage experts on a temporary basis. The mandate of the Inspector General under this legislation is, one, to monitor and report on the activities of the CBSA in carrying out its mandate, which may include making observations and recommendations concerning the procedures and performance of the CBSA in relation to any of its activities; and, two, to carry out investigations in relation to complaints made to the Inspector General.
Bill S-222 provides the guidelines for investigations conducted by the office of the Inspector General. There are general provisions of Bill S-222 for investigations. Any person may make a complaint with respect to any act or thing done by the CBSA. The Inspector General, however, reserves the right to refuse to investigate further if he or she feels the investigation is unnecessary, if the complaint is frivolous or is made in bad faith, or if the complaint falls outside the authority of the Inspector General.
The bill stipulates that before commencing an investigation, the Inspector General shall inform the minister and the President of the CBSA of the intention to investigate and the nature of the complaint. The investigation itself will provide the opportunity for the complainant and the CBSA to make representations to the Inspector General to provide evidence.
Bill S-222 provides the inspector general in the course of an investigation with powers such as one to summon and enforce the appearance of individuals and compel oral and written evidence under oath and to produce documents the inspector general considers necessary to the investigation; two, the inspector general may administer oath.
If the inspector general finds the complaint to be well-founded, he or she shall provide the Minister and the President of the CBSA with a report containing findings and recommendations, and request that within a specified time period, any actions or proposals that have been or have not been taken in response to the report’s recommendations be so undertaken. The results of the investigation shall be reported to the complainant.
The second major aspect of Bill S-222 is the reporting component of the bill. Under this legislation, the inspector general would, within three months after the end of the fiscal year, submit a report on the inspector general’s activities that year to the Minister of Public Safety. The inspector general may also prepare and submit to the Minister of Public Safety a special report, the content of which may contain any matter that the inspector general deems urgent enough to warrant submission to the minister before the annual report.
In turn, the Minister of Public Safety is required to table either the annual or the special report before each house of Parliament within 15 days of receiving the report.
Senators, the third major component of this bill concerns remedies. According to this legislation, anyone who has made a complaint to the inspector general may apply to the Federal Court for a remedy. The complainant may apply to the court within 60 days of the date on which the investigation results are reported or the date on which the complainant has been informed that the inspector general has refused to investigate the complaint.
Furthermore, if the court concludes the complaint is well-founded, the court may grant any remedy that it considers appropriate and just. The inspector general also reserves the right to apply to the court for a remedy for the complainant, if the complainant consents, and the inspector general may appear before the court on behalf of any person who has applied for a remedy.
In considering the content of this bill, it became evident that the issue of remedies was an important one to be addressed. I believe it is critical to provide a process for filing a complaint that results in a fair and timely experience for the complainant, whether his or her complaint is valid or not. I feel that the process provided in Bill S-222 is fair and will lead to a much more balanced system than currently exists. As you may know, a complaint today is processed by CBSA internally. There is no independent oversight. The current complaints process does not give a complainant a sense of transparency and of the likelihood of a fair hearing.
Colleagues, there are many other general provisions in the bill that deal with confidentiality requirements, security requirements for the inspector general and staff, access to information to the office of the inspector general, as well as consequential amendments to other acts.
As I mentioned at the start, there have been demands for oversight of the CBSA from the time of its creation, and specifically since the O’Connor report in 2006.
In closing, I therefore submit that the provision of independent oversight of CBSA is long overdue and we would be doing a great service to Canadians and visitors by passing Bill S-222 into law.
The Hon. the Speaker pro tempore: I see a senator rising. Is it for a question?
Hon. Joan Fraser (Deputy Leader of the Opposition): Yes. Would you take a question, Senator Moore?
Senator Moore: Yes.
Senator Fraser: You make a most compelling case for the creation of such oversight. As I was listening to the list of powers that you would propose for the inspector general, I was wondering how this would compare with other oversight mechanisms that exist in the federal apparatus. Did you take a model somewhere or is this a whole new, unique approach?
Senator Moore: I worked with legal counsel who reviewed other review processes of other agencies within the Government of Canada, and this was the best of the ideas that they could come up with.
I think it’s important that we have an independent agency such as provided here so that the man or woman who fills that office can do an independent investigation of complaints, must report to the minister and the President of the CBSA so they know what’s going on, and must also report to the complainant. Today, there is no such thing. The example I gave of that yachtsman, he did not bother to go on; he sailed back home to the United States.
We can do better than that, and this gives lots of authority to the minister as well — he’s totally in the picture all the time — and as well to the President of CBSA, who is advised of the complaint and the nature of it and can make representations, or his agent can, if the agency may be involved. I think it provides a fair balance. I think it’s greatly needed.
An Hon. Senator: Question.
The Hon. the Speaker pro tempore: Colleagues, please, just have respect for those who are speaking. If you have an interesting conversation, maybe you can use the reading room.
We will listen to a question of Senator Baker.
Hon. George Baker: I have a very short question.
Senator Moore, you’re right that there is no appeal right now. There are a great many Superior Court decisions regarding mainly women, Canadians, who have been strip-searched at Pearson International Airport coming back into Canada. The procedure is that they have a roaming team that, for seven countries in the world, when there’s a return flight, they monitor carefully, and then based on a suspicion — and they have various guidelines for their employees — they select somebody for secondary processing. If there’s a suspicion, they take them into a room. In the two most recent cases of women, they empty their purse. If there’s any objection, they handcuff the woman; they strip-search the woman.
In the most recent case, they did it because there was a bottle of liqueur that had some white particles in the liqueur. The inspector claimed, “That looks like cocaine.” This entire process was gone through while her husband and children were waiting for 15 hours in the waiting area of Pearson International Airport.
At the end of the entire process, weeping, crying and everything else, they let her go. They said, “Yeah, we have a test kit.” Police officers know. Senator White and Senator Dagenais know that there are test kits that one can use practically immediately on drugs.
There is no real apology. Then she’s let go. Her children and husband have been waiting for 15 hours.
You go back to those cases in the Superior Court of Ontario, but the judges have always ruled this way. It’s because of the way we word the act. Nobody in this country, including police officers, has the right to handcuff you based on a suspicion, but that’s what’s in the legislation that we passed. When we passed the bill, it says “suspicion.” That’s why Senator Dagenais told us one day in committee, in evidence, that they usually wait for the person from customs to come to be able to actually intercept the vehicle and search the vehicle because the Sûreté doesn’t have the grounds. It’s the same thing with the Ontario police. It’s because of that word “suspicion” that’s throughout the act.
Each one of those cases was thrown out. In the last case that I remember reading, the woman had to pay expenses.
Senator Fraser: What?
Senator Baker: The only reason she went to court was because she felt her rights were violated. The judge said, “No, because this is the way the act is worded.” You know if you start a civil matter in this country, if you lose, you normally pay the court costs, and that’s what they end up paying.
What you’re suggesting is that this oversight body could then come back to the woman I’m talking about who had complained to the oversight body. The oversight body would look at it and say, “Oops, the legislation permits these people to do that on a suspicion.” A summer student, on suspicion, can do that. The complaints commission that you’re suggesting would probably suggest to the government, “Look, change the word `suspicion’ to `a reasonable belief.”‘ Is that what you’re saying?
Senator Moore: Yes, Senator Baker. I’ve looked at some of those cases as well, and that is the way the law is written today. It’s unheard of, the powers are so sweeping. You don’t need to have a reason to believe, you don’t need any inkling of evidence that might lead to the fact that this person is trying to do something illegal or improper. The inspector general would be able to hear the case of the lady that you spoke of, bring in the agents who conducted the investigation and search of her and her possessions, hear the case, decide on a remedy and indeed go to Federal Court on her behalf as a witness to help in her case.
The Hon. the Speaker pro tempore: Senator Baker, do you have a supplementary question or were all your questions asked at once? I’m not trying to tease you.
Senator Baker: We have some experts in this place. You’re an expert yourself on the criminal law. We have experts on police powers. Two of them are sitting together over here. They are experts, and they can tell you even for an investigative detention, you’ve got to have grounds.
The point is that if it’s in legislation, which it is, and the training is conducted in the way it is, as the judges have ruled, we can’t blame the people who conduct this if they’re following the law we passed many years ago that gave them the power a police officer does not have. That’s why I think this bill is important.
I want to ask the honourable member: Are you saying that perhaps from this, we may even get a change of legislation pertaining to the matter?
Senator Moore: You are asking whether or not this bill contains a provision to amend the CBSA statute with regard to suspicion and they can do what they want. This bill does not have a provision to change that law, but I’m prepared to accept a friendly amendment.