Second reading of Bill S-233, An Act to amend the Customs Act and the Immigration and Refugee Protection Act (presentation and reporting requirements)Published on 1 February 2017 Hansard and Statements by Senator George Baker (retired)
Hon. George Baker:
Honourable senators, I have just a few words concerning this particular bill before asking that it proceed to committee.
This is a very important bill. It was introduced by a member of the Conservative opposition. It is a bill that clears up a legal problem that we’ve had in this country since 1985. This is Senator Runciman’s bill, and I wanted to repeat two sentences that he said yesterday in debate. He said yesterday, in describing the present law, that, when a boat or a vessel crosses the Canadian border, goes into American waters and then comes back into Canada, the requirement of the act is that they report to customs, that the act states that there is a requirement to do that.
He said that, in 2012, the department clarified the reporting rules to emphasize that any boat entering Canadian waters, even if it didn’t stop, was required to report to Canadian customs. That message was reinforced in public meetings on the American side as recently as 2015, and, to be fair to the Canada Border Services Agency, that is exactly what the law says.
Now, you can imagine that long border, and boats that would come down any of the lakes or the river and cross back and forth across the border. They would have to report to customs at any time.
He said, further, that this bill amends the Customs Act to exempt occupants of a conveyance that enters Canadian waters or Canadian air space and returns to the U.S. without stopping while in Canada. It would ensure that those who leave Canadian waters — Canadians — are under no obligation to report upon their return if they did not stop while in the waters or air space of another country. Makes sense, doesn’t it? That’s what I thought the law was.
He continued by saying that he would like to thank the offices of Public Safety Minister Ralph Goodale and Senator Harder, along with the Canada Border Services Agency, for their help and cooperation during the consultations that led to Bill S-233. So we see that this bill is supported not just by the Conservative caucus, but it is here with the assistance of Senator Harder’s office and the office of the minister responsible in the Government of Canada.
So why do we have this problem? I can remember in 1985 dealing with this bill. The Customs Act in 1985 was a revision of an act that had been in force for 110 years. It was the first major revision of the act. I was wondering to myself, why do we have this problem today? I went to case law, as I normally do, and I discovered that the Ontario Court of Appeal, back in 1992, had made this decision. I’ll read just the head note of that decision so that you’ll understand why we have a problem today. It says this:
. . . accused picking up truckload of fuel in Quebec for delivery to Cornwall Island, Ontario; only route being through United States; on re-entering Canada at Cornwall Island, accused stating having nothing to declare; convicted of unlawfully failing to report imported goods . . . .
And the fuel oil and the truck were forfeited. On appeal, held; the appeal was dismissed. Construing the act as a whole:
. . . the Customs Act imposing complete reporting duty under s. 12(1) —
— which is being amended in this bill —
— on persons bringing goods into Canada, regardless of origin of goods; s. 12(1) not applying only to goods of foreign origin . . . .
So this is the highest court in the province of Ontario, the Ontario Court of Appeal. Usually, as the former judges in this place would know, that carries a lot of weight in Canadian courts. And there was the decision. If you go across Canada, cross the border into the United States along the way and you come back into Canada, you have to report and be assessed by the government authority.
Then the courts, specifically the Federal Court, started making decisions that were contrary to the Ontario Court of Appeal. In other words, other jurisdictions started saying, “No, the Ontario Court of Appeal is wrong.” The first one that did this was a judge by the name of Campbell J. of the Federal Court of Canada, Trial Division. He ruled on this, and again I’ll just read from the headnote to understand what his decision was: “Ministry arguing that all goods brought into Canada being imported, even if acquired in Canada, under section 12(1) of the Customs Act — ordinary citizen not interpreting “imported” in that way — “imported” implying goods of foreign origin — s. 12 of the Customs Act not being meant to be punitive — minister’s interpretation having punitive effect contrary to values expressed in the Act.
A very wise judge. I say that for two reasons: First, when he quoted the reason for the legislation back in 1985, he quoted the Honourable Elmer MacKay, who some you in this chamber are great friends with. I can see a couple of people here who meet with him from time to time. The judge quoted him extensively, starting with the words at paragraph 49: “During the second reading of Bill C-59, the Honourable Elmer M. MacKay had quite a lot to say about this question as quoted from the official report.” So Elmer MacKay is quoted extensively in saying that the old act did that, but the new act did what Senator Runciman now wants to do.
Then, the second reason for saying that this judge is a man of sound judgment is what he said at paragraph 53: “In concluding the analysis under this method, I think that the following remarks made in the debate by Mr. George Baker of are interest.” He’s a man of sound judgment.
Senator Mercer: We’ll reserve judgment on that.
Senator Baker: He goes on for a couple of pages quoting my speech, but I will quote one part that he put in emphasis. Quoting me, he says at paragraph 53: “In other words, if you stretched it, as some interpretations by the courts did, if someone drove his car into the United States and then returned, the customs officer could legally seize his car and even his underwear if he wanted to. Under the law, he could seize anything the person had. That is eliminated in this bill.” Now, that’s eliminated in the bill that was introduced in 1985, the very thing that this bill is trying to accomplish.
He goes on at paragraph 54 to say that the reference to underwear in Mr. Baker’s statement undoubtedly refers to the comment of Strayer J. in a decision of the Federal Court in which the judge said: “Taken literally, it means that a person entering or re-entering Canada should declare every item of personal property that he carries or is wearing on his person including, presumably, his underclothes. I think I could take judicial notice of the fact that few, if any, travellers understand this to be the law as administered by national revenue.”
He was a man of sound judgment, I suppose, until paragraph 55 when he said: “While I do not put much weight on Mr. Baker’s statement . . . .” He went on.
So something that we thought we had corrected in 1985, we didn’t correct in 1985.
I want to draw particular emphasis, honourable senators, to the remark of the sponsor of this bill, Senator Runciman, in which he said:
I want to thank the offices of Public Safety Minister Ralph Goodale, Senator Harder and his office . . . for their help and cooperation during the consultation that led to Bill S-233.
Honourable senators, I’ve been on the Hill a long time — 43 and a half years — and I’ve always admired the Senate for one thing, and that is that it’s quoted more in case law than the House of Commons. In the past 10 years, it has been quoted even more than it was quoted historically. I’m talking about not just the courts — the provincial court, the superior courts, the courts of appeal and the Supreme Court of Canada — but I’m talking about the quasi-judicial bodies in Canada that keep this country together. Seven to one: If you go to the quasi-judicial reports, Senate committees are referenced seven times more than the House of Commons is referenced. If you go to decisions of the court in the past 10 years, you will find that Senate committees are quoted three times more than citations from the House of Commons. That is very important because those quasi-judicial bodies, in discovering what the intent of legislation is, have to go these days to what the intent of Parliament was.
I bring that up with Senator Harder because two weeks ago I was asked to address the law school students at the University of New Brunswick, which I did. The subject concerned the Senate and the committee report investigating trial delays in Canada. But I emphasized the role of the Senate committees historically in law, and the students, I think, were interested. I got a good ovation at the end. They were interested in that very fact, the role of the Senate as sober second thought and in interpreting what Parliament was doing, what our bills were doing.
In questioning me, one student asked, “Look, how about some specificity? What about some particularization?” Those were the two words he used — legal terms. “Tell me what is different today with the new approach of the Government of Canada and what was different before the new approach by the Government of Canada.” I said, “Well, we still maintain that prominence in case law of all our quasi-judicial bodies and courts that reference the Senate more than the House of Commons, but we have one additional benefit, from what I can see.” And I listed two things. The first was fentanyl, Senator White’s bill that took the precursors to a terrible drug on the streets in this country, killing people, and registered them under the precursor regulations to make them illegal.
It was Senator White and I think Senator Campbell and the senator behind me, Senator Moore.
Senator Mercer: He’s not there anymore.
Senator Baker: Here we were in committee with four precursors in an act, and along comes Senator Harder with the agreement of the Justice Department and the Health Department and makes it 10, and today in Canada we have new legislation that prevents 10 precursors, chemicals, from being used to manufacture fentanyl to kill people on our streets. That was done by the Senate of Canada.
Hon. Senators: Hear, hear!
Senator Baker: And the second example I gave was the recent decision of the Government of Canada to drop an extraneous bill that was included in the omnibus budget legislation. Here we were for years, as long as I can remember, complaining about the government of the day having bills included with a budget bill, making it an omnibus bill, and including legislation that had nothing to do with the budget or finances, just things they wanted to get through without public examination.
Here we have a situation where Senator Carignan was involved, the committee was involved, the pre-study was involved, and Senator Pratte, who gets blamed for this, stuck to his guns and made sure that the subject remained there until it was changed, but how?
Senator Harder was here. Senator Harder has become the go- between with the Government of Canada in making sure the things that we want in the Senate are accomplished. That wasn’t just for Quebec — that was for all of Canada — because under the Bank Act, civil remedy is not there. You can have credit card companies that take all your money illegally without a civil remedy if the Bank Act covered their entire activities. So now that’s being re-examined. Those were the two examples.
The third example is this bill. With the assistance of Senator Harder again, a Conservative member, a former Solicitor General for the Province of Ontario and the Chair of the Legal and Constitutional Affairs Committee, an outstanding chairman, brings forward a piece of legislation, and Senator Harder is assisting in making sure that this legislation meets with the approval of everyone.
So what I would hope today is that we allow this bill to go to committee so that we can call in the Justice Department to say, “Here it is. What’s wrong with it now? Because you’ve made a lot of changes to it that we’ve agreed to.”
I hope that this is indeed referred to the Standing Senate Committee on Legal and Constitutional Affairs.