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

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

Mr. Speaker, Conservatives 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?

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, one of the things that we should be offering Canadian and American citizens is the idea of Canadian pre-clearance at major U.S. centres. I certainly agree that this gives reciprocal rights to Canadian officers to do this work potentially in the United States, and I would encourage our government to move in that direction.

[The Deputy Speaker, Conservative, Bruce Stanton]

Before we resume debate with the hon. member for Lethbridge, I will let her know that I will need to interrupt her. She has 10 minutes available for her remarks, but there are only about eight minutes remaining before the top of the hour. We will interrupt at that time, and she will have the remaining time when the House next resumes debate on the question.

Resuming debate, the hon. member for Lethbridge.

[Rachael Thomas, Conservative, Lethbridge, AB]

Mr. Speaker, I am pleased to rise today to speak in favour of Bill C-23. This is an act respecting the pre-clearance of persons and goods in Canada and the United States. The legislation completes negotiations and cross-border collaboration started by the previous Conservative government. We are very proud of our record on the matter.

With this legislation, national security would be enhanced on both sides of the border. Passengers would enjoy greater convenience when travelling to the United States, and Canadian goods and services would have easier access to the American marketplace. This is good for Canada.

I am confident the rights of Canadians would also be protected under this legislation. In fact, I would argue that they may actually be better protected because it would allow individuals entering the United States through borders to do so with those pre-clearance mechanisms that have already been identified.

Canadian law, including the Charter of Rights and Freedoms, would continue to apply in pre-clearance areas. Therefore, United States border agents would not gain the power of arrest under this legislation. This is an important point to bear in mind. Any criminal charges that are filed for someone inside a pre-clearance area would be under the Criminal Code of Canada and would be brought by Canadian law enforcement agents. Any security procedures that cannot be conducted in the public area of the pre-clearance zone, such as strip searches, would be performed by Canadian law enforcement in accordance with Canadian law.

That said, let us explore the context of the legislation. Every day, more than $2 billion of goods and services cross the U.S.-Canada border, and across the Canadian economy, one in five jobs is directly linked to international exports. The United States is Canada's largest export market, and Canada is the biggest purchaser of American goods. We make excellent trade partners, and it is important for us to put agreements in place that will continue to protect this. Ensuring the free flow of goods and services across this border is vital to the economic interests of both countries. With the uncertainty around American trade policy at this moment in time, and concerns about American protectionism on economic and security files, legislation like this would protect the Canadian economy and the millions of Canadian jobs that rely on trade with the United States each and every day.

Ironically, the United States Congress, a place not known for its efficiency, has already passed the enabling legislation to authorize pre-clearance facilities on their side of the border. Now they await Canada to take leadership on this issue. When the United States Congress and Senate can pass an important piece of legislation like this faster than Canada, it makes one wonder about the priority of the Liberal government and whether or not it is about promoting trade with our borders.

The use of pre-clearance is not new to Canada. Let us be very clear about that. Canada first allowed American border agents to pre-clear passengers starting with a pilot project in 1952. A formal pre-clearance arrangement for airline passengers was then signed in 1974, with further implementing legislation in the 1999 Preclearance Act. Since that time, pilot projects were pre-clearing ferry passengers and cruise ship passengers. Also, truck cargo has been implemented at high-volume border crossings. If anyone has flown to the United States from airports like Edmonton, Calgary, Halifax, Montreal, Ottawa, Pearson airport, Vancouver, or Winnipeg, they already know there is this pre-clearance option available.

Twelve million passengers at these eight airports went through U.S. pre-clearance in the year 2016, so we can tell that this is of great advantage to Canadian passengers and the flow of goods and services. Without these pre-clearance operations, Canadians would not be able to take advantage of nearly half of the direct flights that presently exist between Canadian and United States destinations. Instead, they would need to fly to a major hub in the U.S., go through customs screening there, and then move onward, which of course is very cumbersome for the traveller.

I am confident when I say that most members of the House have heard concerns from their constituents with regard to this piece of legislation. Nevertheless, these concerns are rooted in an incorrect belief that American border agents would be operating under American law on Canadian soil. The concern is that Canada would be giving up its sovereignty on our very own territory. However, this is actually a false assumption and I wish to clear the record today.

The legislation says, “For greater certainty Canadian law applies and may be administered and enforced in preclearance areas and preclearance perimeters.”

There is no surrender of sovereignty because the Criminal Code of Canada and the Canadian Charter of Rights and Freedoms are in fact the final law in these pre-clearance areas.

Furthermore, American border agents are not peace officers, which means they do not have the power to arrest those who are inside these pre-clearance zones. Again, I will quote directly from the piece of legislation I am referring to:

A preclearance officer is not permitted to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest that are conferred under the laws of the United States....

A preclearance officer must exercise their powers and perform their duties and functions under this Act in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.

The legislation could not be any more clear in this matter. American agents must act in accordance with our Canadian law.

To summarize this legislation, American agents are allowed to stop people or items from passing the pre-clearance area if they are headed to the United States. These American agents are also allowed to evaluate passengers according to Canadian laws regarding terrorism and threats to public safety.

However, if an American agent detains someone, the agent must immediately turn the individual over to Canadian police or border agents, who would then be the ones to interrogate, arrest, and then charge the individual according to Canadian law.

I am going to stop there.