Law Times

Page 4 December 11, 2017 • Law Times www.lawtimesnews.com Impact on clients anticipated Bill to collect info at borders proceeds BY DALE SMITH For Law Times T he federal government's bill C-21, which amends the Customs Act to give the Canada Border Ser- vices Agency the power to collect information on Canadians as they leave the country, is slowly working its way through Parlia- ment, and amendments have been proposed at the public safe- ty committee to strengthen the bill. Immigration lawyers say that the new law will have a profound impact on their clients, with both positive and negative effects. "Most immigration lawyers would support exit control," says Chantal Desloges, senior partner with Desloges Law Group in To- ronto. "It's something that most other countries have, so they track not only when you enter the country but also when you leave." Canada has not tracked this information until recently, where a pilot project tracked some of that data of non-citizens with the United States for the purposes of the Beyond the Bor- der agreement. People applying for perma- nent resident status or citizen- ship are required to track the amount of time spent in Canada in order to meet the residency obligations. "It's always been really hard to make that determination be- cause the official records only show when people came into the country and not when they left," says Desloges. "As a result, there's been a lot of fraud, be- cause it's easy to misrepresent the amount of time you've been in Canada. It's also onerous for people to prove that they were really in Canada during the time that they claim that were." Desloges says that tracking exits will make it easier for the government to make those de- terminations, and should result in a lot of money saved for people applying for those permanent resident cards and citizenship, as well as for the bureaucracy ow- ing to the increased efficiency. Jacqueline Bart, principle of BartLAW Canadian Immigra- tion Barristers and Solicitors in Toronto, says exit data will also show that clients have not left Canada. "When counsel is preparing a humanitarian and compas- sionate application, you want to be able to demonstrate that the person hasn't left Canada, so this kind of record keeping does pro- vide evidence," she says. Desloges notes that not ev- eryone stamps passports, espe- cially if it's the home country of the person claiming perma- nent residency. She adds that it will also make it easier to track whether people in the country on temporary visas have left the country when they were sup- posed to, which currently is not tracked, and can impact those applying for new visas. "You could come in on a six- month tourism visa and could still be here six years later, and the government of Canada has no clue," says Desloges. "It will make it easier for honest travel- lers applying for visas to get the benefit of the doubt." There are also security im- plications in terms of tracking people who may pose risks of leaving the country to join ter- rorist groups abroad, which exit controls would help with, Des- loges notes. Ronalee Carey of Ronalee Carey Law in Ottawa says that she hopes the tracking of exit data will make her life easier, cit- ing a recent case where she was assembling boarding passes and passport stamps to create a file for a client. "They already consent to have their taxes checked," notes Carey. "It would be the same thing to authorize CBSA to re- lease their travel history report." Carey does note that while the solicitor in her is "joyful" with the proposed changes, the litigator in her has concerns, particularly around privacy and information sharing. The amendment that the public safety committee has pro- posed but has not yet been adopt- ed by the House at report stage seeks to reduce the amount of time that the information is kept by CBSA to 15 years from 75. "The question is how much information gets shared with the U.S., and if you look at the state of politics in the U.S. right now, I'm very leery," says Carey. "Once there's more informa- tion shared, how much more hassling are people going to be getting at the border?" Carey notes that the increased information sharing could also mean that Canadians who spend a significant amount of time in the U.S., such as snowbirds, could find themselves considered resi- dents for tax purposes. Some of the technical language in the bill is of concern to Bart, particularly the use of the word "may" instead of "shall" in s. 92(1). "There's no obligation on the part of CBSA to [collect the information], and sometimes I wish there was an obligation on the part of CBSA to do it, because then records would be kept in better order," says Bart. "When people apply for citi- zenship or permanent residence renewals in Canada, we obtain records from CBSA, but some- times those records are not ac- curate." Bart notes that there are court records that have demonstrated the lack of accuracy, which is why she would rather see stron- ger language in the bill. "Because it's permissive legis- lation and there's no obligation on the officer, it really doesn't help in terms of the accuracy of record keeping," says Bart. "It would be nice if there were accurate record keeping at ports of entry in terms of providing evi- dence that either someone left or they never left, or they left and re- turned at certain periods of time." Bart says the government should address that, given that electronic record keeping is the way of the future and there is increased record keeping inter- nationally. Nevertheless, it can mean that clients can ask CBSA to ensure that there is a record at the point of departure. Desloges adds that she is con- cerned with the amount of dis- cretion being given to the minis- ter to change the associated reg- ulations once the bill is passed, without necessarily needing to go before Parliament to answer for those changes. 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The leading reference on the assessment of personal and fatal injury damages The question is how much information gets shared with the U.S., and if you look at the state of politics in the U.S. right now, I'm very leery. Ronalee Carey CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online

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