Bill C-23 (Historical)

Preclearance Act, 2016

An Act respecting the preclearance of persons and goods in Canada and the United States

This enactment implements the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (the Agreement), done at Washington on March 16, 2015, to provide for the preclearance in each country of travellers and goods bound for the other country.
Part 1 of the enactment authorizes United States preclearance officers to conduct preclearance in Canada of travellers and goods bound for the United States and, among other things, it
(a) authorizes a federal Minister to designate preclearance areas and preclearance perimeters in Canada, in which preclearance may take place;
(b) provides United States preclearance officers with powers to facilitate preclearance;
(c) establishes that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
(d) authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
(e) allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained under Part 1; and
(f) limits the ability to request the extradition or provisional arrest of a current or former United States preclearance officer.
Part 2 of the enactment provides for the preclearance in the United States, by Canadian officers, of travellers and goods bound for Canada. Among other things, Part 2
(a) specifies how the Immigration and Refugee Protection Act will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters;
(b) authorizes the Governor in Council to make regulations adapting, restricting or excluding the application of provisions of the Immigration and Refugee Protection Act and that other Canadian legislation in preclearance areas and preclearance perimeters;
(c) prevents, as required under the Agreement, the exercise of powers of Canadian officers under Canadian law with respect to questioning or interrogation, examination, search, seizure, forfeiture, detention and arrest in preclearance areas and preclearance perimeters, as similar powers will be conferred under the laws of the United States on Canadian officers; 
(d) allows a traveller bound for Canada to withdraw from the preclearance process, unless the traveller is detained under the laws of the United States;
(e) deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada; and
(f) grants the Attorney General of Canada the exclusive authority to commence and conduct a prosecution of a Canadian officer with respect to an act or omission committed in the United States.
Part 3 of the enactment makes related amendments to the Criminal Code to provide United States preclearance officers with an exemption from criminal liability under the Criminal Code and the Firearms Act with respect to the carriage of firearms and other regulated items. It also amends the Criminal Code to provide for a stay of proceedings against a United States preclearance officer when the Government of the United States provides notice under paragraph 14 of Article X of the Agreement.
Part 3.‍1 of the enactment provides for an independent review relating to the administration and operation of the Preclearance Act, 2016.
Part 4 of the enactment makes a consequential amendment to the Customs Act, repeals the Preclearance Act and contains the coming-into-force provision.

Second Reading

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, I am pleased to rise to discuss Bill C-23, which would allow for the expansion of pre-clearance operations. This is the system that, for over 60 years, has allowed travellers in Canadian airports, currently Vancouver, Calgary, Edmonton, Winnipeg, Toronto Pearson, Ottawa, Montreal, and Halifax, to go through American customs and immigration procedures in Canada. It saves travellers having to wait in long customs lineups once they arrive in the U.S., enables direct flights to U.S. airports that otherwise only accept domestic travel, and allows Canadians to undergo American border procedures while under the protective umbrella of Canadian law and the Canadian Constitution. This arrangement, which is currently in place in eight of our airports, has been an overwhelming success for ordinary Canadians as well as for Canadian business.

Recently, the Minister of Public Safety told the House:

Four hundred thousand people move back and forth across the Canada-U.S. border every single day and $2.4 billion in trade moves back and forth across that border every day. We have to make that border secure and we have to make it efficient for the movement of people and goods.

In listening to the debate on this bill, it seems that there is widespread agreement among hon. members that pre-clearance is a good thing, and I am glad to hear that. However, I have also heard members of the NDP and the member for Saanich—Gulf Islands say that while they are in favour of pre-clearance, they want it to continue under the current legislative framework, and they do not understand why new legislation is necessary. I have also heard from constituents who have expressed concerns about the bill because of misinformation, so I appreciate this opportunity to explain it.

The short answer is this. If we stick with the current legislative framework, we remain stuck with the current pre-clearance locations, with no opportunity to expand to other locations, such as the Billy Bishop airport in Toronto, the Jean Lesage airport in Quebec City, Montreal Central Station, and the Rocky Mountaineer in Vancouver. If, on the other hand, we want more Canadians in more parts of the country to reap the considerable full benefits of pre-clearance, including more convenient travel to and trade with the United States, the way to do that is to pass this bill.

In my opinion, the most important thing to bear in mind is this: Canadians will continue to travel to the U.S., whether or not we have pre-clearance. However, with this pre-clearance legislation in place, U.S. officers must exercise their duties in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act. Ports of entry within the United States have none of these safeguards.

Without pre-clearance service at Toronto's Pearson International Airport, it could not offer direct flights to almost half its destinations in the United States, because those airports do not have customs and immigration facilities. With pre-clearance, it has direct flights to 50 U.S. airports, as opposed to only 27 if pre-clearance did not exist.

Pre-clearance operations necessarily involve two countries, in this case Canada and the United States. Therefore, any expansion requires both countries to agree. This agreement has been reached. It is called the Land, Rail, Marine and Air Transport Preclearance Agreement, and implementing legislation must be passed in both countries for it to take effect.

The United States adopted its required legislation last December, with unanimous support in both Houses of Congress. The Canadian legislation needed to implement the agreement and expand pre-clearance is the bill before us now.

Here is the choice we face. Pass Bill C-23 and open the door to pre-clearance in new Canadian locations and on new modes of transport, pre-clearance of cargo, and Canadian pre-clearance in the United States, or do not pass Bill C-23 and achieve none of that. Given the tremendous upside of expanded pre-clearance, there would have to be something really terrible about this bill to justify denying Canadians the economic and travel benefits it would bring.

Certainly, the reaction from the NDP and the Green Party to the provisions laying out the authorities granted to U.S. pre-clearance officers gives the impression that Bill C-23 is the worst bill we have seen. However, when we read those parts of the legislation, they are, frankly, moderate and reasonable and quite similar to the legislative framework already in place.

For example, under existing law, U.S. pre-clearance officers can conduct frisk searches. Likewise, under Bill C-23, U.S. pre-clearance officers can conduct frisk searches.

Under existing law and under Bill C-23, a U.S. pre-clearance officer may detain a traveller if there are reasonable grounds to believe that he or she has committed an offence, and the traveller must be transferred as soon as possible to Canadian custody. Under existing law, a pre-clearance officer may detain a traveller for the purpose of a strip search and must request a Canadian officer to conduct the search. Likewise, under Bill C-23, a U.S. pre-clearance officer may detain a traveller for the purpose of a strip search and must request a Canadian officer to conduct the search. The only difference here is that U.S. officers can conduct a search themselves in the very unlikely event that a Canadian officer is unavailable.

In the existing law and in Bill C-23, the provisions governing use of force by American officers are virtually identical. The provisions laying out the penalties for lying to or obstructing pre-clearance officers are exactly identical. Neither the existing law nor Bill C-23 confers any powers of arrest whatsoever on U.S. officers in Canada. Moreover, under both existing law and under Bill C-23, travellers are free to withdraw from the pre-clearance area. The only change is that withdrawing travellers would be required to say who they are and why they are leaving. The intent here is simply to address the problem of travellers entering pre-clearance areas to probe for weaknesses in border security before withdrawing undetected.

With regard to arming, U.S. pre-clearance officers would be permitted to carry only the same weapons as Canadian border service officers in the same environment. In other words, since Canadian border service officers do not carry firearms in airport terminals in Canada, neither would their American counterparts. By the way, this provision, like the entire pre-clearance agreement with the United States, is reciprocal. That means that if Canadian pre-clearance officers eventually begin conducting operations in the United States, they will similarly be allowed to carry the same weapons as American officers in the same circumstances.

Therefore, this is not, as some have styled it, a ceding of sovereignty. Rather, it is a mutually beneficial agreement that would confer the same authorities and obligations on both parties.

Above all, as I mentioned earlier, U.S. pre-clearance officers operating on Canadian soil would have to conduct themselves in accordance with Canadian law and the Canadian Constitution, including the Charter of Rights and Freedoms. To put that in practical terms, a traveller flying today from, for example, Billy Bishop airport to Newark, has to submit to U.S. border procedures after landing in the U.S., with no Canadian legal protections. With Bill C-23 in place, that traveller could be processed by U.S. officials while still in Canada. If people are concerned about how they might be treated by American border officers, would they not rather undergo questioning and searches under the umbrella of Canadian charter protections, rather than fending for themselves in the terminal at Newark?

I appreciate that it is the role of the opposition to put legislation through the wringer, and I certainly do not begrudge the opposition members their right to raise concerns and vote against the bill if they so choose. However, we are talking about a measure that would bring tremendous benefits to Canadian travellers and businesses. The worst criticism the New Democrats can muster is that a person who wants to leave a pre-clearance area may have to say why. To me that seems an odd hill to die on. For my part, I will be supporting this legislation and looking forward to the advantages of expanded pre-clearance. I encourage all hon. members to do the same.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Speaker, frankly, I think my hon. colleague is falling into the same trap of misrepresenting our position. No one within the NDP has said that we are against pre-clearance. I have used pre-clearance. It has certainly helped me get through the Vancouver airport to United States destinations. We know it works. It works well as it currently is.

I have yet to hear a convincing argument from that side of the House in favour of provisions in Bill C-23 that would give U.S. customs and border officials the right to carry firearms. With respect to the concept of sovereignty, it is a precious thing, and when they start setting precedents and slowly giving it away, it makes it easier in the future to institute new forms.

Why do U.S. agents on Canadian soil need to carry firearms? Why can we not rely on our own police forces, who have sworn an oath of allegiance to the crown, to do that very same work? I have yet to hear a convincing argument for that.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, I appreciate that the hon. member's party is in favour of pre-clearance.

The most important thing to consider is that at no time would U.S. border officers be carrying arms unless we, as Canadians, determined that Canadian border officers needed to carry arms. If we as Canadians made that determination, that would be the only time U.S. border services officers would be able to carry arms. We would not allow them to do anything that we had not already decided, as Canadians, we expected in our airports.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker,we agree on the substance of this legislation, but I want to take this opportunity to ask the member about the use of time allocation. Members of the government lit their hair on fire every time this was used previously, and now we see the increasing use of time allocation by the government. I know that the member was not a member in any previous Parliament, but does she not see some irony in the repeated use of time allocation by the same people who used to decry it as sort of marking the end of democracy as we know it?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, I find it interesting that a member of the Conservative Party is asking about time allocation.

This is important legislation. It is important to Canadians. It is important to Canadian travellers and Canadian businesses, and we feel that this legislation needs to move through the House in a timely manner. It is important that we use our time in the House to discuss the bill. I am happy to answer further questions on the bill itself.

[Celina Caesar-Chavannes, Liberal, Parliamentary Secretary to the Minister of International Development]

Mr. Speaker, I would like to thank my hon. colleague for her speech and her explanation of this much-needed bill, one that, as she said, would help Canadian travellers as well as businesses.

I wonder if she could elaborate further on the provisions in the bill that would ensure that when Canadians travel, they will be protected by Canadian law, and in particular, our human rights law, with the pre-clearance regime.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, what is important about this bill is that any Canadian traveller going to the United States with pre-clearance would be protected by our Canadian laws, our Constitution, and our human rights laws. If we do not have pre-clearance, those same travellers will go to the United States and have none of the protections they have in Canada. I would much rather be doing it on Canadian soil, protected by Canadian laws and our Constitution, than be going to the United States and not having those same protections.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, how many members have come home from a long business trip, arrived at the airport, and seen a tremendous lineup at customs? In my old job, I did this all the time. I used to work for a multinational. I would be travelling home from Europe or the United States, arrive at Trudeau airport, exhausted after being away for days and just wanting to get home to my family, and be faced with a lineup that went on from here to the end of the room. There would be hours of waiting at the airport. Of course, this was in my pre-NEXUS days. Now, with NEXUS, I can walk through the kiosk and get of the airport in no time. However, without NEXUS, in the old days that was problematic. It was hard. There was a long wait. There is nothing that makes me happier than avoiding that very long wait when I enter the United States.

There are over 12 million people who travel back and forth between the United States and Canada every year. More than 500,000 Canadians spend more than one month in Florida. In fact, from my riding, the Côte Saint-Luc Men's Club actually shifts a number of its activities to Deerfield Beach, in Florida, during the entire winter season. I can go to Florida on a constant basis and get local programming from our senior men's club if I want. That shows how many Canadians of all ages are affected by pre-clearance.

Pre-clearance is a wonderful thing. I am happy that an agreement was reached with the United States in March 2015 to provide for better pre-clearance for travellers and goods. Our government has worked hard to expand pre-clearance to now include the Billy Bishop airport in Toronto and the Jean Lesage airport in Quebec City, and, importantly, the VIA Rail terminal in Montreal, if I ever choose to take the train to New York City. Of course, it is slower today to take the train than it was when my grandfather was doing it in the 1930s and 1940s, but still the idea is there.

I am happy that pre-clearance is being expanded. We are now able to have Canadians and Americans who are in Canada, or foreigners in Canada, pre-cleared. They can fly to all of the different U.S. destinations that we can fly to today in Canada, from Pearson or from Trudeau or from Vancouver, or from other pre-clearance-approved airports that do not have facilities in the United States for customs. That means that we can go to many smaller destinations, over 50, from Pearson airport, instead of 27. This is a very big thing, and very important.

The whole idea of opposing the bill is something that I have trouble understanding. Why is that? I can understand that there are concerns over some of the expanded powers that are given to U.S. border officers. I think they are minimal, fully understandable, and yet I can understand their concerns. However, what on earth is the alternative?

Canada and the U.S. have worked together to identify irritants on both sides to allow for better pre-clearance. In the event that we are not constantly working together and identifying U.S. concerns with respect to Canadian pre-clearance, then we are eventually going to put ourselves in a situation where it is not going to stay the same as today; it could be restricted. To me, there is absolutely no reason why we would not sit down with our U.S. partners, as I understand the previous government did, and come up with what they see or what we see as improvement enhancements in pre-clearance. That is what is happening.

I personally look at it and see very little in terms of the irritants that are being talked about. Number one, in terms of the frisk search, we already do the frisk search, and we can still do it. With respect to the strip search, they can still ask a Canadian to do it. The only difference is that if no Canadian is available in a reasonable period of time, then the American officer can do it.

How often is that ever going to happen? I believe I heard the minister say that in the more than six decades of pre-clearance, we have never had one incident where Canada and the U.S. have had an argument about pre-clearance at a Canadian airport. To me, this is a minor issue, and something that certainly can be resolved at committee, if nothing else. It does not require further debate at second reading.

The idea that we should not allow someone to be questioned if they withdraw at the border is another added feature to the bill that I have heard complaints about. There is an issue. If we are sending people to the border and they see that if they are viewed with suspicion they can just withdraw, it certainly seems to me to encourage the idea that we could have people trying to probe the border to do nefarious things. I have no issue with the idea that somebody cannot simply withdraw and walk away without being photographed and asked why they are walking away. I do not see what this terrible issue is.

I have heard a lot of concerns that have been conveyed because of who the President of the United States is today, and concerns related to the identity of the current president. Our history with the United States has gone on for centuries. The United States is a western democratic country, our closest ally. We cannot close our eyes to the fact that the procedures in the United States are western, democratic, and civilized. Whether one likes or does not like the incumbent in the White House should not be how we judge our trade relationship with the United States, our pre-clearance agreements, or any of our other agreements with our closest trading partner and best ally. That, to me, is surprising.

One of the things I think is worthy of note is that we export $400 billion a year to the United States and more than $50 billion in services. There is more than $2.5 billion in trade that crosses the border every day.

Exports to the U.S. account for 20% of our GDP. More than 2.5 million jobs in Canada and nine million jobs in the United States are tied to trade between Canada and the United States. We have 6,100 Canadians who have tourism-related jobs, and American visitors account for two thirds of the visitors who spend the night in Canada.

We have to facilitate trade through agreements like CETA, through agreements like the one we are working on with Ukraine, like the expansion we just did with Israel. We have to do trade missions, and we have to do other things to allow people and goods to cross the border more easily.

Border delays are one of the biggest impediments that we have to growth. We need to encourage the enhancement of easier trade. It is frustrating to see a Canadian business say that it does not want to expand and do business in the United States because it is worried it will not be able to get its goods there easily and quickly. The same is true in reverse. We want American companies to come to Canada, to create jobs in Canada, to send their goods to Canada, so we have cheaper markets and lower prices for Canadian consumers. We do not want people to be deterred because they do not think they can get here, because it will take them four hours at the border to travel to their Canadian office, or they do not know if their goods will get here on time.

A pre-clearance arrangement like this one goes towards a larger philosophical principle that I agree with, that we need to enhance trade, enhance the ability to cross the border with our closest allies. It also goes to an idea that the faster we get people across the border, the better.

I have heard a lot about the concerns that members opposite have with pre-clearance. What is the alternative? What if we do not have pre-clearance like we have in other countries in the world outside the United States? When we go to those countries, our citizens are speaking to border officials based on the laws of that country, according to the rules of that country, and under the terms of that country. It is only with pre-clearance that Canadian law, Canadian human rights, the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, all apply to travel to the United States. Given that the alternative is worse, given that it is an excellent concept, I strongly support this law, and I urge members to get it to committee.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, during the speech by the Minister of Public Safety and Emergency Preparedness, he spoke about Bill C-23 eventually expanding into the movement of goods to and from the United States and Canada.

I wonder if he would explain what benefit there is of pre-clearance on our products that we ship between countries.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, I think philosophically, and I am sure he would agree with me, the faster that we get people and goods across the border between Canada and the United States, which is our biggest trading partner, which we rely on for 2.5 million jobs, which we rely on for $450 billion of exports per year, the better. The more that pre-clearance can apply to different goods, as it does to people, the better.

I look forward to working with him and the minister on that.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, despite my colleague's enthusiasm for this bill, I still have a question to ask him.

I know that he is also very enthusiastic about justice issues. I feel that he did not clearly explain how the government will ensure, when there is pre-clearance in Canada, that Canadian laws will be respected, in particular the Canadian Charter of Rights and Freedoms.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, I thank my hon. colleague from Saint-Hyacinthe—Bagot. I know that she, too, is passionate about justice issues.

It is understood that there has been a program in place in many Canadian airports for sixty years now. The minister said in his speech that Canada has never had to complain about the United States not complying with our laws. That is why I am quite certain that they will continue to respect our laws. Canada and the U.S. have an agreement calling on both countries to discuss the matter in the event of non-compliance with Canadian law.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, my friend talked about long lineups, and I guess some of our friends on the left are consistent in their support for long lineups. However, I want to ask about American institutions.

The member made the point quite well that American institutions were designed to check against the power of an authoritarian executive. What we see is a strong system of institutions, a strong judiciary, and so forth. When we talk about the relationship with the United States, I think we can have confidence regardless of the administration. We can have confidence in the strength of those institutions, and we should move forward with co-operation. Whether it is enhancing and addressing loopholes in the safe third country agreement, it is pre-clearance, whether it is trades or others, we should move forward with confidence in those institutions. I think the member made that point very well, but perhaps he would like to expand on it.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, since the United States created a system of checks and balances with its Bill of Rights in the 1780s, the United States has been an example, a pillar to the world. While it has not been perfect in terms of human rights, and we can look at slavery, segregation, and many things the United States has done that today are a shame to the country, in general, its system has worked better than almost any system in the world. It is an example to nations about how there can be an executive, a legislature, and a judiciary that all have checks and balances. I agree with my hon. colleague that the United States is far more than whoever is the current occupant of the Oval Office.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, the protections in the law also protect Canadian customs officers in the United States with exact equal powers. It is balanced. Could the member comment on that?