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Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016 - Third Reading

Honourable senators, I rise today to speak at third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, so as to register the serious misgivings that I have about this bill.

I would first applaud the Standing Senate Committee on National Security and Defence for their work on this legislation. Specifically, I would like to acknowledge their amendment to remove the arbitrary and vague threshold of “reasonable general concern” to the current iteration “reasonable grounds to suspect.” This prudent amendment was made in light of the overwhelming witness testimony cautioning against the carte blanche that would result from the original terminology. As our colleague Senator Dean said last week in reporting back from the committee on Bill S-7, the implementation of that initial and unclear threshold:

. . . could have the following results: arbitrary treatment at the border; the violation of privacy rights of individuals; an increased risk of discrimination; a lack of clarity about the proposed standard’s meaning; and, indeed, a further challenge before the courts.

Despite this amendment, colleagues, I still have grave concern about this legislation. I would like to go on record as saying that I attempted, with the assistance of the Government Liaison in the Senate’s office, to establish a meeting with CBSA officials so that I could raise my concerns and inquiries directly with those who would action this legislation. I was quickly informed that the CBSA had denied my request, as they have apparently made it a practice not to meet one-on-one with parliamentarians. I had then countered with the suggestion of setting up a meeting with a small collective of senators who had similar issues on Bill S-7 in the hopes that CBSA officials could alleviate some of our concerns in an efficient but effective manner. That offer, too, was rebuffed by CBSA. I am disappointed that I was met with an unwillingness to have meaningful dialogue with the individuals who would be tasked with carrying out the weighty duties that would be established with the passage of this legislation.

Honourable senators, having said that, I would like to speak to the major concern that I still have with Bill S-7. Specifically, I am concerned about the insidious practice of racial profiling when it comes to the determination of secondary examinations. This is an issue that is familiar in theory to all in this chamber, but the fear and anxiety of actually being subjected to this kind of malice and targeted behaviour is only known to a much smaller collective.

As a First Nations woman, I can tell you that racial profiling is real and that I am still a victim of it to this day. I am sure this same truth is reflected by other senators in this chamber who are also part of racialized minority groups, whether they be Indigenous, Black, Asian and so on.

This issue is deep-rooted and ingrained in many different areas that make up the fabric of our society. I fear that the wording and content of this legislation remains dangerously close to enabling this kind of attitude for people in a position of authority, which already highlights the power imbalance that exists wherein racialized travellers are subordinate and submissive to border officials — individuals who may carry with them unfounded biases or prejudices.

Honourable senators, this issue was first raised at the May 30 meeting of the Standing Senate Committee on National Security and Defence by our colleague Senator Jaffer. I would like to extend my thanks to Senator Jaffer for her unwavering resolve in ensuring that this matter, which is critical for so many people across this country, was not easily dismissed. In response to this line of questioning, Minister Mendicino acknowledged the validity of the concern. In his words, Minister Mendicino stated:

First and foremost, I want to assure you that we take systemic racism and racial profiling extremely seriously, not only at the CBSA but right across every branch of law enforcement. Indeed, officials in every branch of law enforcement, to their credit, acknowledge that it exists and that we must root it out. This is a challenge around which we must all be united.

The Minister went on to state:

I also want to assure you as well . . . the mandate that was given to me by the Prime Minister [does] require, in very express language, that all agencies continue to do the important work of rooting out systemic racism in all of its forms. What does that mean? It means better training, being culturally sensitive and being aware of the biases that have infiltrated the way the work has been done.

I appreciate the fact that the minister and his officials spoke about the rigorous training that would be required of CBSA officials prior to taking on the job. However, I admit I was shocked when Mr. Scott Millar, Vice President, Strategic Policy, Canada Border Services Agency was asked specifically about the nature of the diversity training these officers would undergo. In his words, Mr. Millar responded:

There are multiple courses that are mandatory training for CBSA, and there are some courses around unconscious bias as it relates more specifically to this type of authority. Our diversity and race relations course is, I believe, an hour in duration.

Colleagues, this bears repeating. As part of the CBSA training in relation to Bill S-7, the course on diversity and race relations is one hour in duration. To me, this length of time is merely a pretense: negligible in terms of actually combatting the deep-rooted and systemic issues that underpin racial profiling.

Despite the minister’s nice words on the commitment of this government to root out systemic racism with better training, the action behind those words is underwhelming and insufficient. As such, we must not be blind to the fact that this level of training — if we can justify calling it that — will not translate into a better understanding of race relations. It will certainly not accomplish the lofty goal of eradicating over 150 years of racist and prejudiced thoughts-turned-actions that have constantly marred our authorities’ relations with First Nations people in Canada.

When asked about the sufficiency of one hour’s worth of training on this matter at the June 6 meeting of the National Security and Defence Committee, Ms. Pantea Jafari, member, founder and lead counsel of Jafari Law and a board member of the Canadian Muslim Lawyers Association, said the following:

I do not think that an hour of sensitivity training for officers is sufficient by any standards. The stereotypic beliefs that permeate border officials and the national security context are deeply ingrained. . . . They are systemically entrenched. . . . which is why racial profiling and the stereotypic assumptions they are based upon are so predominant in the national security context and so significantly felt by racialized and minority individuals.

Later that meeting, Ms. Jafari continued:

. . . the issue is so significantly felt by racialized individuals, but there doesn’t seem to be a genuine interest in correcting the problem. When you see that the minister is proposing a one-hour diversity training to rectify this overwhelming and extremely well-documented issue of significant racial profiling at the border, that speaks to how seriously they take this issue, which is really not at all.

As you can see, colleagues, even legal experts are lodging serious concern about the impact that racial profiling will continue to have on this process. This is due, in part, to the lacking diligence that the government and their authorities are delegating to address an issue that is centuries-old in this country.

Honourable senators, I would now like to acknowledge the fact that the minister highlighted a new agency that is being established to monitor the CBSA and the RCMP in regard to their behaviours, as well as to collect data therein. However, I note this agency is only now in the process of being established by Bill C-20, which is currently before the House, having only received first reading at this point. In other words, it is in its infancy with uncertainty surrounding what this agency would accomplish in real-world terms — if and when it receives Royal Assent at some undetermined time in the future. What we can be certain of, colleagues, is that this proposed agency would essentially operate in hindsight. While it would theoretically serve as a post-mortem to determine issues and shortcomings in the conduct and level of service of the CBSA and RCMP, it would offer no practical, real-world protections or aids to travellers at the border. This is especially true of racialized travellers, who most need an elevated level of consideration and protection.

Honourable senators, while I recognize these aforementioned steps as important and necessary, I harbour profound concern that they are insufficient and will have no tangible impact on alleviating racial profiling and thereby diminishing the dread — because, make no mistake, that is what is felt — that First Nations and other travellers of colour feel when they reach the authorities at the border.

Colleagues, a final concern I would like to raise is surrounding data. As it has been an ongoing struggle to obtain gender-based analyses that may or may not be done by the government, I have since requested these analyses from the Library of Parliament for all government legislation. The gender-based analysis done on Bill S-7 was emphatic on the issue of data, stating:

In the absence of hard data, it is not possible to measure the extent of discrimination or racism at the border and determine whether or not Bill S-7 will exacerbate these problems.

This is a large concern and is one, I feel, that merits serious attention, as it will be difficult to verify whether Bill S-7 is actually helping or hindering a critical issue for many in Canada.

Honourable senators, the reality of the issue of racial profiling is best summed up in a response given by Ms. Pantea Jafari during the June 6 meeting of the National Security and Defence Committee. Following her testimony, our colleague Senator Yussuff asked if she felt this legislation would result in an increase in racial profiling at the border. Ms. Jafari responded:

In my personal opinion, I would say absolutely, because these ingrained and entrenched biases and stereotypical assumptions being exercised at the border will only become more entrenched with increased power to exercise them in that way. Without the proper safeguards, I would highly venture that things will get disproportionately and significantly worse for racialized individuals at the border.

It is for this reason, colleagues, and the fact that I do not believe Bill S-7 presents the proper safeguards as alluded to by Ms. Jafari that I will not be voting in support of this legislation.

Thank you.

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