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.

Preclearance Act, 2016

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Mr. Speaker, in terms of goods, about $400 billion per year in goods and services are transported to the United States. Therefore, instead of having congestion at the border, we need to ensure the flow of our goods, services, and people from here to the United States is quick and easy, and that we can grow both our economies.

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

Mr. Speaker, everyone in the House agrees that the free flow of goods and people across our border with the United States is important. That is why debate on this bill is so important.

Since this debate is happening under a time allocation motion, time is very precious. My colleague should be ashamed of himself for wasting our precious time electioneering.

I was elected to represent the people of Saint-Hyacinth—Bagot, who are very concerned about this bill. On February 19, people came out to join me for coffee and talk about Bill C-23. They have concerns about their rights and respect for the Canadian Charter of Rights and Freedoms.

This is not hypothetical stuff. There have been very real cases of discrimination against transgender people and religious and ethnic discrimination. We must therefore ensure that this bill contains the proper guarantees to make sure people's rights are respected.

All my colleague did in his speech was talk about a by-election. He offered no guarantees regarding rights. What are his thoughts on that?

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Mr. Speaker, the reason I chose to present that in my speech is this. As we all know, as we were all candidates once, we need to ensure that our words and what we voice to the public are true. However, what the candidate in Ottawa—Vanier mentioned was untrue. I was trying to present that so we set the record straight. We know what is true about Bill C-23.

This gives me an opportunity to talk about the economic benefits that so many people have mentioned, such as with the Billy Bishop airport in Toronto, and the economic benefits that Bill C-23 will have with the pre-clearance of a lot of goods, services, and individuals to get across the border that much quicker.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Mr. Speaker, I am proud to stand in the House to speak in opposition to Bill C-23, a bill that we in the NDP have been clear that we oppose for a number of very key issues.

Before I begin, I want to reflect on the fact that my colleague from the Liberal Party spent an inordinate amount of time talking about what our friend, who is running for the NDP in the Vanier byelection, said. Emilie Taman is a legal expert who has worked in the area of human rights, whose passion is human rights. She has reflected the true analysis of the bill. The assertions made by my colleague to dispute her comments are false.

I would expect better from a member of the government. Instead of defending his party's positions, he is choosing to attack somebody running in a by-election. That seems beneath the role of somebody who is in government, in the context of serious legislation like this, and really speaks to the fact that the Liberals are playing cynical politics with legislation that we know will have an impact on people's human rights, on their privacy, legislation that certainly does away with potential safeguards that need to be in place.

We support allowing for greater fluidity of movement across the border, but this bill is not about that.

Just in the House today, we were talking about the latest executive order put forward by President Donald Trump and its implications on Canadians and obviously all those affected. Our leader, Tom Mulcair, rose in the House to talk about the latest incident of a Canadian, Manpreet Kooner, a resident of Montreal, born and raised in Canada, who was turned away at the border after six hours of investigation. She is a Canadian citizen.

This is the impact of Trump's America. This is what is happening at our borders right now. This is a major issue of concern for us. I do not know why the Prime Minister did not reflect that concern and denounce, as he should, the position of President Donald Trump. However, this is the reality of today. This is what is happening at our borders today.

Bill C-23 would only exacerbate the kind of disrespect of people's human rights and privacy rights. Instead of protecting Canadians, the Liberal government is trying to change the channel, deflecting to by-elections and not listening to the major concerns many have raised with respect to the legislation.

Why are we as New Democrats opposed to the bill?

First, it would allow for increased powers for U.S. officers on Canadian soil, provisions regarding carrying firearms, strip searches, detention, and interrogation.

A second reason is the lack of provisions protecting the rights and freedoms of transgender people during strip searches.

Another reason is the invasion of privacy on Canadian soil, the search of travellers' electronic devices and access to the digital universe, as it is known.

Another reason we are opposed is because of the additional difficulties for Canadian refugees and permanent residents going through pre-clearance on U.S. soil.

Finally is the ambiguity surrounding compliance with the Canadian Charter of Rights and Freedoms and its extraterritorial application.

These are critical reasons. We are talking about the Charter of Rights and Freedoms, a document of which the Prime Minister has indicated on numerous occasions he is very proud. This legislation allows searches and actions by U.S. border agents that could very well go against what is protected in the Charter of Rights and Freedoms. People are beginning to see through the rhetoric put forward by the government because the actions do not match what is being said.

A number of well-respected individuals who know a great deal about the issue at hand have also shared their concerns and opposition to Bill C-23.

Peter Edelmann, a lawyer and member of the national immigration section of the Canadian Bar Association, said that he was concerned about the application of the Canadian Charter of Rights and Freedoms. He asked how we could be assured that the U.S. CBP pre-clearance officers would be subjected to the charter as the bill did not specify their stature as agents of the state.

Howard Greenberg, an immigration lawyer who has chaired the immigration committee of the Canadian Bar Association and the International Bar Association, was speaking to the power of U.S. officers to detain and question travellers on their reasons for wanting to withdraw from the pre-clearance area. He indicated that at some point it may change from a situation where travellers were simply responding to a question to a situation where they were failing to respond to a direction of an officer. The ambiguity is somewhat dangerous for the traveller.

With respect to the fact that there was a lack of provisions protecting the rights and freedoms of transgender Canadians during potential strip searches, Brielle Beardy-Linklater, a transgendered human rights activist who I have the honour of knowing, indicated that travelling as a transgender person was already complicated. Any additional measures that could bring humiliation might simply stop members of the community from going on vacations or a business trip

Craig Forcese, professor at the Faculty of Law, University of Ottawa, indicated:

Put simply, in Hape, the Supreme Court concluded that the Charter typically does not follow the flag – that is, that it does not generally attach to the extraterritorial conduct of Canadian government actors. The Court did, however, raise caveats to that conclusion. Consent of the foreign state to the application of the law is an obvious exception. But so too is what the Court called “some other basis under international law”...The difficulty in deciding what those other bases are stems from the Supreme Court’s rather unpersuasive approach to prescriptive and enforcement jurisdiction in international law.

Alex Neve, secretary general, Amnesty International Canada, a renowned organization when it comes to human rights, was speaking to biometric screening at the border. He indicated:

....we certainly have signalled the very real potential that there are serious human rights violations that can ensue if, for instance, those new technologies aren't used responsibly. That's number one. Number two, they do not have effective safeguards in place, so it often comes down to questions of safeguards and review and oversight, and we know, for the large part, that Canada's national security framework is lacking on that front.

We also heard from members of the Muslim community, a community that has been targeted repeatedly over the last number of years, certainly the targeting of which we have seen grow as a result of the politics of hate and racism that the policies of Donald Trump have been encouraging. We must take very seriously the concerns put forward by the Muslim community, particularly as it pertains to the potential for racial profiling and targeting of Muslim Canadians and Muslim travellers.

Safiah Chowdhury, a representative of the Islamic Society of North America, indicated:

Many of us have been arbitrarily questioned for no reason whatsoever, but simply because we are Muslim. We always build in extra time to go to the airport because of the extra screening we expect to go through. Right now when I travel through, say, Pearson, if I am questioned in a way I don't like or I think infringes upon my rights or I think is trying to put me in a position that makes me answer questions that typecast me in a certain way, I have the opportunity to leave and go back to my home. However, under these provisions that are being presented, there will not be that opportunity.

Ms. Chowdhury goes on to explain the concerns that many have raised in the Muslim community.

We do not stand here and take this issue lightly. We feel strongly that the human rights and rights to privacy of Canadians must be protected. We feel strongly that Bill C-23 does not do that. We are very concerned. We do not support the government's insistence on making this about other issues, while disregarding the major gaps that are at play here.

In the age in which we live, where Canadians are being turned back at the border, where they are being disrespected and, frankly, mistreated, this is not the time to pass a bill that would further endanger those travelling and that would certainly put them in a situation where they would be increasingly more vulnerable.

This is why I am proud that we are opposed to Bill C-23. We certainly would like to see the government change course.

[The Assistant Deputy Speaker, Anthony Rota]

Before we go to questions and comments, I want to remind hon. members that when referring to one of their colleagues in the chamber, we refer to them by their title or by their riding name, not by their name.

The hon. member for Mount Royal.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, I would like to extend my best wishes to the hon. member for Churchill—Keewatinook Aski on her announcement we are all expecting this week.

My question is as follows. We have all heard of some very unfortunate and scary incidents happening at border crossings. Pre-clearance means that people do not need to go to a border crossing but can actually go through pre-clearance. I would like to ask the hon. member if she has heard of any incidents that have occurred in pre-clearance, because I have not heard of any. If not, would it not be better for more people to go through pre-clearance as opposed to going to the border?

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Mr. Speaker, as I indicated in my speech, we certainly know from a number of human rights advocates, representatives of the Muslim community in Canada, and transgender activists that what is in Bill C-23 leaves a tremendous gap and puts at risk respect for human rights, the Charter of Rights, and Canadians' privacy rights as they pertain to procedures conducted by U.S. border officials.

We are living in an unprecedented time. I was blown away by the fact that a Montreal resident, a Canadian citizen, born and raised in Canada, Ms. Manpreet Kooner, was turned away at the border after six hours of being investigated. This is not the time to conduct ourselves as though nothing has changed. Clearly, the government has not caught on to that. This is the time to ensure that what we are doing is protecting Canadians' human rights, protecting their right to privacy, and standing up for the charter.

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

Mr. Speaker, I certainly agree that the House is not the place to be waging a by-election campaign, as she referred to at the beginning of her remarks.

I have a question, though, for the member with respect to the issue of U.S. border guards. Of course, Canadians who choose to travel to the U.S. are well aware of the questions that may exist, but a person who makes a choice to travel to the United States is making that choice and will either be screened in the United States or through pre-clearance in Canada. A person involved in pre-clearance does have the opportunity to leave eventually. This legislation would provide for limited detainment of that person for a period of time.

It is important for the NDP to acknowledge as well that although there are legitimate concerns, and I have expressed some of those concerns myself, about actions taken by the Trump administration, at the end of the day, the United States is a country with rule of law and strong institutions where people can bring those issues up through the American system. Those who choose to go to the United States are, in some sense, putting their faith in that system.

Does the member not acknowledge that, therefore, there is some degree of perspective needed, perhaps, and that again, pre-clearance is a better option compared to some of the alternatives?

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Mr. Speaker, I am happy to agree on his initial point that the House is not the place to discuss by-elections, but I will say that it is perhaps an indication that the Liberals are considering the NDP candidate a threat in that election. We have certainly taken note.

Back to the topic at hand, what is clear, as has been pointed out, is that we are living in an unprecedented time. We are very concerned about what is happening day in and day out at the border. New Democrats are certainly in support of more fluid movement, but given what has been happening, and given the potential for Canadians' human rights and the right to privacy to not be protected, it is simply not something we can support. We are concerned that the government seems to be deflecting from this point or changing the channel. We believe that this is far too serious a point to ignore, and that is why we stand in opposition to Bill C-23.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I am pleased to continue our second reading debate on Bill C-23, the legislation that would give us the opportunity to provide faster, charter-protected travel for Canadians. These crucial updates to the pre-clearance framework would enhance security, improve cross-border flow, and produce substantial economic and travel benefits for Canadians.

We have already benefited from over six decades of successful pre-clearance. It has been beneficial for businesses, for the economy, and for the ordinary traveller. We are now in a position to implement an agreement with the United States that would make these advantages available to more Canadians in more parts of the country.

We have heard supportive voices for the expansion of this bill from business, from chambers of commerce, from the tourism industry, from municipalities, from other levels of government, and from ordinary Canadians. Most recently, before we adjourned last week to spend time in our ridings, we heard from many members of this House that Bill C-23 would bring economic benefits and ease travel restrictions while protecting Canadian rights. It is on this note that we think we are on the right track to continue the legislative process.

However, we have also heard concerns from some members. Many of these concerns have already been addressed, both during debate in the chamber and through the technical briefing provided to journalists last week by Public Safety Canada and the Canada Border Services Agency, and live-streamed by the media. This was on top of technical briefings provided to parliamentarians last year. However, to ensure that there is clarity on some of these issues, I would like to focus my remarks today on two specific topics: travellers' rights and reciprocity between Canada and the United States.

First, on rights, we all know that both Canada and the U.S. set and enforce their own rules with respect to who or what enters their countries. However, for Canadians undergoing U.S. customs and immigration procedures while still in Canada, Bill C-23 would ensure that Canadian legal and charter standards would apply to that process. This is a distinct advantage over entering the United States at a border through a regular port of entry inside U.S. territory, where Canadian charter standards do not apply to the conduct of U.S. officers.

Let us take the example of withdrawal. If travellers wanted to withdraw from a pre-clearance site in Canada and not continue on to the U.S., they would be able to do so under Bill C-23, just as they can under the current pre-clearance agreement. The only adjustment here is that American officials could ask travellers to identify themselves and give their reasons for withdrawing. This is to avoid illicit probing of pre-clearance sites. The alternative would be to go to the United States and submit to examination by the U.S. authorities on U.S. soil. At that point, it would not be possible to withdraw from the process at all, because the person would already be in the United States.

I have heard some members argue that travellers are already protected under the current pre-clearance arrangement, and so no change is needed. The problem is that we have pre-clearance right now at only eight airports in Canada. If people are travelling from anywhere else, the protection of undergoing U.S. border procedures in Canada and therefore having the right to withdraw is not available to these people. With Bill C-23, we could begin expanding pre-clearance so that more Canadian travellers could enjoy the benefits and protections.

Another point that needs to be clarified regarding travellers' rights is that U.S. pre-clearance officers would not have the authority to enforce U.S. criminal law or make arrests in Canada. If U.S. pre-clearance officers have reasonable grounds to believe that a traveller has committed an offence under Canadian law, they can detain that traveller without making an arrest, but only in order to transfer the person to Canadian authorities right away. This is not new. Rather, it is part of the existing pre-clearance framework that has been in place since 1999.

In other words, contrary to what has been speculated, there is no compromise here on rights and values. On the contrary, Bill C-23 would expand the protective umbrella of the Canadian Charter of Rights and Freedoms so that it can apply to Canadians flying out of airports such as Billy Bishop and the Jean Lesage airport in Quebec City. They are not currently covered. It would also be applicable for the first time to Canadians travelling using other modes of transportation, beginning with train routes in Montreal and British Columbia.

Canadians expect us to make sure that their rights and values, and the protections afforded by the charter, our Bill of Rights, and the Canadian Human Rights Act, are front and centre in all legislation we consider in this House. By making charter protections more widely available, Bill C-23 is a step forward for the rights of Canadian travellers.

The second issue I would like to address concerns the question of reciprocity. It must be stressed that the updated and expanded approach to pre-clearance being discussed here would be absolutely and fully reciprocal. There would be no authorities conferred on the border officers of one country that would not be conferred on those of the other.

Each country, as well, would retain primary jurisdiction over most criminal offences that might be committed by an officer in the course of his or her duties, while the host country would retain primary jurisdiction for the most serious crimes. As such, fears that this bill constitutes the ceding of our sovereignty are misplaced. Rather, Bill C-23 would implement a mutually beneficial agreement that would impose the same obligations and confer the same authorities on both parties.

The bill would improve safety and security for both countries. It would make travel and trade more efficient and expeditious. Also, as is clearly laid out in article II of the agreement with the United States, it would ensure that each county's laws and constitutions would apply to all pre-clearance operations. This means that U.S. officers operating in Canada would have to abide by the charter, as would Canadian border officers in the United States.

I cannot reiterate enough that more than 400,000 people flow across the border every day. There is close to $2.5 billion in two-way trade that moves between our two countries each and every day. It is therefore mutually beneficial for both countries to build on the success of existing pre-clearance operations while simultaneously protecting, even enhancing, the rights of Canadian travellers. This is the backbone of the bill before us today.

I encourage all members to support Bill C-23.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, as a preamble to my question, I would like to reference something on the U.S. Customs and Border Protection website regarding search procedures for transgendered people. It states that, if the person being searched has undergone sex reassignment surgery, the individual's current sex will determine whether the search is conducted by a male or female customs and border services officer. This suggests that, if the individual has not undergone surgery, this right will not be recognized.

I could give many examples, but since we do not have a lot of time, this is simply one example that tells me that not all rights guaranteed by the Canadian Charter of Rights and Freedoms have been taken into account in the new agreement that the Liberals want to bring in.

Can my esteemed colleague assure me that all measures in this new agreement will guarantee the same rights that are protected by our Charter of Rights and Freedoms?

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, as MPs, we see a lot of bills come before us, and not all bills are comprehensive or totally perfect. It is our job as MPs to debate the issues and to bring them forward to committee. It is at committee where this bill will be very well debated and looked at thoroughly. Any questions or concerns people have can be raised at committee. They can bring in witnesses and the right people.

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

Mr. Speaker, I will make a quick response to the comment that was just made about the work of committees. A lot of experts came before committee with respect to Bill S-201 and Bill C-22 and made recommendations that were unanimously adopted by that committee, only to have the government completely ignore and refute those recommendations.

In asking us to put faith in the committee process and in the government respecting that process, I am sorry to say that my patience with that line of argument is wearing very thin at the moment.

My question to the member is about the part of the bill that gives authorization to U.S. customs officials to carry firearms on Canadian soil. I have yet to hear a convincing argument from the Liberal benches as to why this is necessary. Why, when we have a perfectly capable police force in Canada, would we cede this kind of sovereignty to U.S. agents on Canadian soil?

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, things are not always perfect in a democracy, so therefore whether the committee process will work or will not work, it is important to note that we can vote bills down in the House or eliminate them.

With regard to U.S. border guards carrying arms, whatever the Canadians can do, the U.S. border guards can do at the pre-clearance point. Reciprocity is contained within the bill. If there are any clauses that make no sense to committee members, they should have the chance to review and refuse or eliminate those clauses.

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

Mr. Speaker, this is a good news bill. We are talking about pre-clearance for many Canadians travelling to the U.S.

My question is about recognizing the economic value, and I will use the Lester Pearson airport as an excellent example. Virtually half of U.S. airports do not have U.S. customs officers, and this prevents aircraft from flying into those jurisdictions. That is why, over the years, pre-clearance has been seen as a positive thing that both Canada and the U.S. benefit from.

I am wondering if my colleague could comment on the benefits that Canadians get as a result of pre-clearance.