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.

The House resumed from February 24 consideration of the motion that Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, be read the second time and referred to a committee, and of the amendment.

Second Reading

[The Deputy Speaker, Conservative, Bruce Stanton]

When the House last took up debate on the question, the hon. member for Yellowhead had three minutes left in the time for his remarks after which there will be five minutes for questions and comments.

The hon. member for Yellowhead.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I am pleased to rise again to speak to Bill C-23, an act respecting the pre-clearance of persons and goods in Canada and the United States.

Back in 2011, former prime minister Stephen Harper and former president Barack Obama announced the “Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness”. This declaration—

[David Sweet, Conservative, Flamborough—Glanbrook, ON]

Mr. Speaker, I rise on a point of order. My hon. colleague is just three seats away from me and it is absolutely impossible for me to hear him with all the din over here. I would ask members to respect their colleague and to please quiet down and come to order.

[The Deputy Speaker, Conservative, Bruce Stanton]

I thank the hon. member for Flamborough—Glanbrook for his intervention. It seems to have had the desired effect. We will continue with debate on Bill C-23.

The hon. member for Yellowhead.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I thank my colleague next door.

That declaration had deepened co-operation at the border between Canada and the United States and it would give us an opportunity to exchange best practices. We have successfully launched the automated biometric-based system to counter identity fraud, and we signed a historic agreement on land, rail, and air transport.

We have NEXUS, which is a very simple process to speed the movement of people across the borders from Canada to the United States, and vice versa. I am a proud NEXUS card carrier. I think close to 1.5 million people in Canada have NEXUS cards. It streamlines movement not only in Canada but going to the United States and back.

However, last year I went on a holiday to Mexico and I had to go through customs in the United States. There was a long line of people. My wife pointed out to me that there was a NEXUS line. No one was there, and we had our NEXUS cards. She went through just as slick as could be. I had problems because I put the wrong information in. The lights shone and everything stopped. By the time I answered the questions to verify who I was, corrected the mistakes I had made, and got through, it took about 45 minutes to an hour. My wife looked at me, and she was very mad. I was not sure why. I looked over at the other line that we did not go through, which had been really long, and those people were already gone. I was the last person to go through security.

I bring that up because it was mentioned in the House by some of our opposition members to my left, not across, that their people were having problems, and that the extra authority being given to the border guards under this great Bill C-23 was posing problems. Most of those problems come from either mistakes being made by individuals who are going through, or by their body motions, or the suspicions they might be giving the security guards. It is very important that if our security guards, whether Canadians working on the U.S. side or Americans working on the Canadian side, have reason to believe a person or persons are involved in suspicious activity that they should be able to detain and question them to see what is going on. They cannot hold them, but they can turn them over to Canadian officials, because they are doing those security checks on Canadian land and are subject to Canadian laws.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I recognize this is good news legislation in the sense that millions of Canadians benefit every year from pre-clearance. I appreciate the story the member across the way put on the record. At the end of the day, Canadians, and Canada as a whole, benefit from pre-clearance. It is important to recognize the economic value of this, whether with respect to our tourism industry or even our products. The potential going forward into the future is really encouraging.

The legislation deals with pre-clearance, meaning individuals and merchandise can be pre-cleared before arriving in the U.S. This allows them to fly to many other jurisdictions in the U.S. which they otherwise would not have been able to if that pre-clearance did not exist. Does the member see this as a very strong thing on which we should continue to move forward?

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, the member is absolutely correct. It will speed things up. This is not anything new to Canada. I mentioned in my speech last week about CANPASS, which is the pre-clearance for small private aircraft flying to and from Canada. People give their information an hour before they cross into the U.S. border and because that information is already there, border officials know who is arriving, where they are coming from, and where they are going. Within a few minutes of arriving, they have gone through the customs check. In the past, it often took well over an hour. This will speed up trade and commerce between Canada and the United States, and that is a good thing.

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

Mr. Speaker, we have heard some concerns about the bill with respect to the protections that might exist, and about the way in which screening happens in the United States. However, it is important to underline that we are supporting the bill because the screening that takes place will be on Canadian soil and is subject to Canadian laws and human rights protections. Also, it provides people with better opportunities to leave that situation if they do not like what is going on, opportunities that would not exist if they were being screened on the other side of the border. Therefore, the bill not only facilitates commerce and travel, but also provides for effective protection of human rights.

I wonder if the member could comment on the advantages that come with this legislation, and how it continues the good work that began under former prime minister Stephen Harper.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, the member is correct. U.S. border guards working on Canadian soil to pre-screen Canadians going across into the United States have to do it according to the laws of Canada. Holding people back for a bit of extra questioning is done in accordance with Canadian law. That is good. No one will able to abuse the system.

There are rumours out there that they will have the power to detain and hold Canadians. That is not correct. If there is some suspicion that may lead that way, they have to call Canadian authorities who will then follow the process.

However, it will be good to expedite travel between Canada and the United States, and for trade.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I do not think anyone objects to the notion of pre-clearance. It currently is working fine. The concern is around the additional powers for U.S. officials to, for instance, hold people who have decided they no longer want to cross into the United States. They can hold them for further questioning and continue to keep them within the jurisdiction of that pre-clearance U.S. space.

Could the member explain why we need to give more pre-clearance powers to U.S. officials than those they have now?

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, for persons acting suspiciously, whether at a border crossing or at a road check on the side of a highway where people are pulled over for impaired driving, those who drive up, turn around, and take off, police officers should be suspicious enough to follow them. Those people could be guilty of either impaired driving or another crime, maybe trafficking drugs.

Due diligence and following through is good police work. If people are acting in a very suspicious nature, or are very nervous, or are turning around and leaving, customs officers doing due diligence to protect the rights of Canadians should stop those people to see why they do not want to go through a border check.

[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.