Preclearance Act, 2016

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

Sponsor

Ralph Goodale  Liberal

Status

This bill has received Royal Assent and is, or will soon become, law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

June 21, 2017 Passed 3rd reading and adoption of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States
March 6, 2017 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.
March 6, 2017 Failed That the motion be amended by deleting all the words after the word “That”, and substituting the following: “the House decline to give second reading to Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, because it: ( a) neglects to take into account the climate of uncertainty at the border following the discriminatory policies and executive orders of the Trump Administration; (b) does not address Canadians’ concerns about being interrogated, detained, and turned back at the border based on race, religion, travel history or birthplace as a result of policies that may contravene the Canadian Charter of Rights and Freedoms; (c) does nothing to ensure that Canadians’ right to privacy will be protected during searches of their online presence and electronic devices; and (d) violates Canadian sovereignty by increasing the powers of American preclearance officers on Canadian soil with respect to the carrying of firearms and by not properly defining a criminal liability framework.”.
March 6, 2017 Passed That, in relation to Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, not more than one further sitting day shall be allotted to the consideration at second reading stage of the Bill; and That, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration at second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:45 p.m.
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NDP

Daniel Blaikie NDP Elmwood—Transcona, MB

Mr. Speaker, I want to congratulate my colleague on the work he has done on the bill. I also thank him for his expression of support of the notion of preclearance but highlighting the fact that the bill goes above and beyond simply preclearing people in Canada. It actually presents significant threats to the rights of Canadians on Canadian soil. He raised the example of American border agents being able to compel Canadians to provide their passwords to their phones and then being able to look through them.

Under the bill, Canadians will not be allowed, if they feel they have been treated unfairly, to simply walk away. Once they are in the hands of American border agents, despite being on Canadian soil, they will be unable to leave.

Could the member expand a bit more on what that means for Canadians? We are told by the government that Canadians ought not to worry because this will happen on Canadian soil and they will enjoy the full protection of Canadian law and the Charter of Rights and Freedoms. My understanding is that this is simply not true.

Could he better explain the mechanics of how the bill would deprive Canadians of the usual protection of law they would expect on their home soil?

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:50 p.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, the member talked about the issue of cellphones. I had the opportunity to sit in on the ethics committee just last week when it was doing a study of privacy at the border. The Canadian Civil Liberties Association, the B.C. Civil Liberties Association, and even their American counterpart, the ACLU, were talking about how critical this issue is. The two Canadian associations represented on that panel both raised the issue of the language in Bill C-23 with regard to pre-clearance and the consequences that can have, given a future presidential executive order that might come down relating to the search of cellphones.

The fact is, the parliamentary secretary, on a media panel we did when the bill was first debated in the House, said that we need not worry because there is an internal departmental directive. I am sorry, but I am not going to protect Canadians' rights with an internal departmental directive. I want it to happen in the legislation that is tabled in the House of Commons. This leads us to another debate, which is the fact that we need to update our laws based on how we treat cellphones at the border, but that is a whole other discussion in and of itself.

Regarding the specific question as to the actual remedies that exist, charter rights and Canadian law are mentioned in the bill as applying, but if we cannot take the person committing the offence to court because of other parts of the bill, then we have no legal remedy. What good are those protections if we cannot actually have them upheld in court and have any sort of consequence on the American officer, in this case, committing the offence? It is not just me who is saying that, but it is what, among others, the B.C. Civil Liberties Association, told us in committee with regard to how the State Immunity Act plays out in this legislation.

Members do not have look to New Democrats, but they need to look to committee testimony from the independent witnesses and experts who specifically told us that this would be an issue. As I said, even my Conservative counterpart agreed with me. The Conservative public safety critic said that there would be no remedy, and he is a lawyer, so we can take his word for it, too.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:50 p.m.
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Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I am also a lawyer, but the member does not have to take my word for it either.

I was very pleased to be at the table at committee, although, again, I would have rather had my rights restored to present amendments at report stage. However, I did present about 12 amendments on Bill C-23 at clause-by-clause in committee.

To zero in on what is wrong with the bill, it is the nitty-gritty areas, and I completely agree with my colleague's speech. If we look at what is called “traveller’s obligations” in the bill , when a traveller is in this pre-clearance zone, which is still Canadian territory, it is interesting that if the traveller chooses to withdraw, the traveller does not just have to answer questions from the pre-clearance officer for purposes of identification, but the traveller must also provide reasons to assist the agent in determining the person's reason for withdrawing. The person should not have to offer a reason for deciding, on Canadian soil, to leave a place where he or she is being made to feel uncomfortable for any reason.

Again, as the British Columbia Civil Liberties Association said:

We are aware of no sufficiently compelling justification to eliminate the right to withdraw in situations where there is no reasonable suspicion of an unlawful purpose on the part of the traveller.

I think we in this place agree generally that pre-clearance is a good and convenient thing for travellers, but is it worth taking the risk of reducing the charter-protected rights of Canadians? It is fine to say that the U.S. officers operating on Canadian soil will be trained on how to apply the charter, but it seems to me that U.S. agents on U.S. soil seem to be only dimly aware of their own Bill of Rights, and therefore, I do not think they are going to become experts on our charter.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:50 p.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, given that my colleague is also a lawyer, I will take her word for it as well, with pleasure. I was pleased to support many of her amendments. Many NDP amendments, if not quite identical, sought to accomplish the same goals. I want to thank her, in particular, for some of the amendments she proposed to change the language to protect permanent residents from some of these egregious powers. They could be particularly victimized in the event that they chose to withdraw from the preclearance zone. As MPs working with many permanent residents on the path to citizenship, we would not want these overarching powers for Americans to threaten their ability to get citizenship.

More specifically, to the notion of how things are perceived by an American officer versus a Canadian one, an issue with this bill is what would be considered reasonable suspicion. With some of the horror stories we have heard in the news lately, when even groups like the Girl Guides of Canada do not want to travel to the U.S. anymore because of how they might be treated at the border, we know that the threshold for reasonable suspicion is very different for an American officer than for a Canadian one. That is the problem when it comes to these kinds of situations. That is why my colleague and I proposed the amendments we did.

People may choose to withdraw from the preclearance zone because, for example, they refuse to answer a question like, “Why do you go to that mosque?” That is obviously a question that is purely racist in intent. When a question like that is posed, and a person says he or she will go home and not be treated that way, as the bill stands right now, that could be considered reasonable suspicion, which would lead to the detention measures, and so forth, in the bill. That is not something New Democrats are going to accept.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:55 p.m.
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NDP

Pierre Nantel NDP Longueuil—Saint-Hubert, QC

Mr. Speaker, first, I want to congratulate my colleague on his very informative speech. His expertise never ceases to amaze. I am very proud to work with him.

I have a question for him. He provided a lot of information on the reasons for his opposition to and dissatisfaction with the bill. I have a rather simple question about the botched nature of the bill and the many gaps in it.

A few months ago, we might have thought that the Liberals had an idea, a tactic, or a reason for acting the way they are, but does it not just boil down to incompetence? They are being lazy and introducing flawed bills. I see it in so many other areas. I would like my colleague's opinion on that.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:55 p.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, I thank my colleague for his kind words. He is praising me while the government is criticizing me.

This is very important. As I said, it is not as though we were debating a bill on a free trade agreement. This bill is on an agreement that was negotiated by the previous government. The Liberals tried to get out of it by saying that it was not their fault and that they had to make do. As I said in my speech, they could have simply renegotiated the agreement. There is no hope of renegotiating it with the current president because we know how that will go. Nonetheless, they had a year to work with another president with whom they had a positive relationship. They could have considered this possibility at the time.

That being said, it is also important to remember that, in March 2016, when the Minister of Public Safety and Emergency Preparedness was in Washington with the Prime Minister, they reiterated their support for this agreement. Let us stop blaming the previous government. The Liberals have to take responsibility for the fact that they are party to a bad agreement that violates Canadians' rights and freedoms, particularly with regard to American officers on Canadian soil. They need to take responsibility for that.

They support the bill. If they were not so lazy, as my colleague said, and if they really wanted to protect Canadians' right and freedoms, they would go back to the Americans and tell them that they will not go along with this measure. That is certainly what we would have done.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / noon
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Waterloo Ontario

Liberal

Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, I move:

That in relation to Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, not more than one further sitting day shall be allotted to the consideration of the second reading stage of the said bill; and

That fifteen minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration of the second reading stage of the said bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and in turn every question necessary for the disposal of the said stage of the bill shall be put forthwith and successively without further debate or amendment.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / noon
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Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

Mr. Speaker, I am pleased to participate in this debate. I wonder whether the minister could comment on a quote from May 2, 2013 from the Minister of Public Safety and Emergency Preparedness in this place, where he said:

obviously it is unfortunate when debate in the House is curtailed by the use of time allocation or closure. That impinges upon the democratic right of members of Parliament to adequately consider matters that are before the House.

I wonder whether he can explain why he has changed his mind on this matter.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / noon
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Regina—Wascana Saskatchewan

Liberal

Ralph Goodale LiberalMinister of Public Safety and Emergency Preparedness

Mr. Speaker, we are moving into what will be the fourth day of debate at second reading on Bill C-23. Including today, there will have been over 10 hours of debate. So far, 18 members of Parliament have delivered speeches on Bill C-23 and obviously there will be more to come today. The point is that the detailed work with respect to Bill C-23 is the work that is done in committee, and members, I am sure, are anxious to get into that work so that they can consider the bill in detail. That will be followed by report stage, which will be followed by third reading. This is all part of a very deliberative process where members of Parliament will certainly have ample time to express their opinions. I note also that the hon. gentleman is generally supportive of the legislation.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / 12:05 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Mr. Speaker, we are starting to lose track of the number of times the Liberals have used this measure to curtail debate. One of the most solemn things that we have as a duty in the House as members of Parliament is to bring forward our constituents' views. By cutting off this debate, the minister is not allowing us to do that. There are very real concerns about this bill. I know that members on that side of the House like to dismiss them, but it is our job to give them voice in the House.

To pre-empt the minister if he wishes to reference our vote on Bill C-37, may I remind him that we did that vote because it was to save Canadian lives, but this bill has been languishing on the docket since June of last year. I do not understand what the rush is.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / 12:05 p.m.
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Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Mr. Speaker, indeed there has been ample time for public examination and consideration of this bill. The international agreement upon which it is founded was signed in the spring of 2015. It was tabled in the House of Commons at the same time. The legislation to provide legal force to the agreement was tabled in June of last year. It has all been in the public domain for all of that time. The focus generally has only occurred in the last number of weeks, but the fact of the matter is there have been months and months and months of public opportunity to examine this legislation.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / 12:05 p.m.
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Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Mr. Speaker, even though there may be some agreement on different sides in terms of the bill itself, it still is incredibly important that members of Parliament be allowed to voice their concerns and reflect their constituents' wishes.

It is interesting that back on June 3, 2015, the parliamentary secretary to the government House leader said:

The government, by once again relying on a time allocation motion to get its agenda passed, speaks of incompetence. It speaks of a genuine lack of respect for parliamentary procedure and ultimately for Canadians.

I would say that we are seeing a real lack of competence on the government side in terms of being able to work together with all sides of the House to get its agenda passed.

What are the plans going forward? Is this what we have to look forward to in the next two and half a years, that every time MPs want to speak, they are going to be shut down by the Liberals?

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / 12:05 p.m.
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Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Mr. Speaker, again, I would remind the member that this subject matter has been in the public domain for detailed discussion and debate going back to the spring of 2015. The legislation has been on the Order Paper since June of last year. Already in the debate there have been four days devoted to second reading. There have been 10 hours of debate. Eighteen members of Parliament have delivered speeches, and more will do so today. This will be followed by the committee stage, report stage, and third reading stage of the bill. There is going to be a lot of opportunity for members to express their opinions.

I want to thank the hon. member for the support that her party has shown for this legislation.

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / 12:05 p.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, just because a bill has been placed on the Order Paper does not mean that members have had the opportunity to debate it. Given that the government has claimed to want to elevate the role of Parliament, I find it astonishing that the Liberals are now saying that this is no big deal because the bill was introduced in June. We are debating the bill now, and the government wants to limit the time we have for that. That is very disappointing. I know that the previous government liked to use this sort of tactic, but it seems the current government does as well.

That is all the more worrisome when we consider how concerned Canadians are about this bill. It is not just Canadians who are concerned. I think that something major is happening in the world and the government is ignoring it.

A great example of that is the Netherlands which ended negotiations on pre-clearance in light of Trump's policies. Does the minister think that the Netherlands is out to lunch on that, or does he agree that if, as he says, the current system works so well, and we agree, why is it necessary to give so many additional powers to American agents? As people say, “If it ain't broke, don't fix it.”

Bill C-23—Time Allocation MotionPreclearance Act, 2016Government Orders

March 6th, 2017 / 12:05 p.m.
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Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Mr. Speaker, I would point out that this whole issue was given a great deal of prominence in March of last year, just about a full year ago, when the Prime Minister and the president of the United States at that time discussed it very much in detail and very positively. At that time, the proposed legislation was fully described. It was tabled in June. I find it very interesting that in that whole period of time, from the spring of 2015 to June 2016, until about two weeks ago, not a single question about this proposed legislation was asked by the official opposition or the NDP, not one question.