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

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

Madam Speaker, I wonder if the member across the way could explain this to me. When the leader of the Liberal Party became Prime Minister, there was a U.S. presidential election. It seems to me that there is a very positive relationship between Canada and U.S., the White House, our Prime Minister and the PMO. I did not see that to the same degree when Stephen Harper was the prime minister.

Could the member expand on the relationship the former prime minister had with President Obama?

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Madam Speaker, it was a different kind of bromance. I will give the hon. member that.

It is important for all prime ministers to stand up for Canadian interests. We will be watching that very closely as the relationship between President Trump and the Prime Minister moves forward. We will be watching closely to see that Canadian interests are defended.

Certainly the Prime Minister gave a little gift to President Trump with that wonderful scene with the female entrepreneurs. That helped President Trump a great deal. It probably helped the Prime Minister a great deal as well.

However, we want to see some substance on the issues about which Canadians care.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Before we resume debate, I want to remind members that there is 10 minutes for questions and comments. We should be able to get in more than three or four questions. I would ask individuals to keep their questions short so others can participate fully in the discussion.

Resuming debate, the hon. member for Beloeil—Chambly.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, I would like to begin by revisiting something that my colleague from Parry Sound—Muskoka mentioned. I completely agree with him. The NDP does have a different way of thinking relative to the Liberals and the Conservatives.

I must say that that is key to this debate and to our thoughts on Bill C-23. The New Democrats will always be in favour of making it easier to access and cross the border, but never at the expense of Canadian rights, and particularly not when those rights are compromised on Canadian soil. That is the key issue for us today.

We acknowledge the explanations that the minister gave. It is true that pre-clearance can make more destinations available to travellers. Take for example, a person who is departing from Montreal and travelling to the United States. The fact that he or she can go through pre-clearance at the Montreal airport means that there are many more destination options available. Why? Because the destination airports do not have to have American customs facilities.

The bill before us and the associated agreement were initially presented to us as a way to increase the number of destinations available to travellers. There would be then more airports in Canada with pre-clearance capability, for example, the Jean Lesage airport in Quebec City. There would also be Canadian customs officers on the American side of the border for the first time, which would simplify the process even more. However, this bill goes much further than that.

It is not just about expanding the number of destinations from which Canadians can go through pre-clearance or even having the presence of Canadians on American soil doing the same work that up until now had not been done, an option that was not available, which changes things in a positive way.

However, it is more than that. It is the powers that are given to American agents on Canadian soil that really give us pause. As with many of the debates that we have had in the House over the last number of weeks, since we came back to Ottawa after the holidays, this is another issue where the government cannot ignore the reality that the new American administration is just not the same. We are dealing with a situation that is unpredictable and rapidly evolving. Despite assurances from the government, despite the fact that the Liberals gave each other high-fives because no bad news was good news after the Prime Minister's visit to Washington a week ago, there are some serious concerns about what will happen moving forward.

Allow me to provide some examples.

There is an executive order that went relatively unnoticed because another one got all the attention, President Trump's discriminatory order that targets certain communities whose members are trying to escape a horrible situation, seek refuge, and rebuild their lives elsewhere. That is the order that grabbed everyone's attention. However, another order changed the way the law applies to protecting the private information of citizens who are not American.

Why does that matter? Because we live in a digital era where technology changes quickly. As everyone knows, there are two ways in which technology plays an increasingly important role at the border. The first has to do with our cell phones. We bring them with us to the United States. Access to international plans allows us to have a certain amount of data and minutes. These days, almost everyone travels with their cell phone.

Why is that important? Because we are seeing more and more stories now of uncertainty around what legal protections Canadians will have crossing the border when it comes to, for example, their cellphones. How does this relate to Bill C-23?

There is an example from this past weekend, which was covered in Daily Xtra. A Vancouver man was turned away at the border because he was asked for the password to his phone, and the agents went through his phone. The individual, who is a member of the LGBTQ2 community, was turned away because he was suspected of being a sex worker. Why? Because when they looked through his phone, he had dating apps and things like this, which many people have on their phones. It is is nothing unusual.

We could talk about discrimination based on the person's sexual orientation, but I will put that issue aside for the moment. The other issue was that he was told he had cleared his phone. What does that mean? It means a person has erased his or her text messages, browsing history, and anything else that could be used to profile a person or be used to be turn someone away. We do not want to name communities, but we certainly can think of which communities would be looking to do this with their cellphones, because they would be profiled at the U.S. border by a U.S. agent.

Why is this a concern with Bill C-23? Because this would be happening on Canadian soil. There are no guarantees, despite affirmations to the contrary, that the government can give us of how this would be charter compliant. We have lawyers who are raising this issue, wondering under what legality American agents would be able to apply executive orders coming down from the President on Canadian soil.

Beyond the issue of digital data and cell phones there is also the matter of the technology that the Americans want to put in place.

I commend the minister on one thing: he was proactive. He is currently talking to his U.S. counterpart about not implementing certain technologies at border crossings, such as fingerprint scanners. We are hoping for a positive outcome.

When it comes to a bill like Bill C-23, the question is what we will do when the Americans want to set up this type of technology. Will they do it? We have no idea.

The same goes for a citizen who would want to leave the pre-clearance facility. I asked the minister what assurances he could give us about providing citizens with the necessary protections. We were assured with the words “reasonable timeframe”, but what exactly does that mean?

The minister can cite precedence, but the fact remains that this is a rather open and vague term that allows a person to be detained and questioned for hours without any guarantees.

Why is this concerning? Because the situation has changed. American agents are being given powers over Canadian citizens on Canadian soil when they leave a pre-clearance zone. The minister is assuring us that it is simply to ask questions and understand their motives to ensure that no one is analyzing the pre-clearance zone. Certain security concerns need to be addressed and I understand that. However, this raises several questions.

Why is this needed now, when it was not needed in the past? Pre-clearance zones already exist, so there is no need to grant this power. Why does it have to be an American agent? Why could it not be a Canadian agent? How do we avoid the profiling that will inevitably result from this?

The Standing Committee on Public Safety and National Security heard from witnesses who spoke to exactly this issue, in the context of Bill C-23.

I would like to quote Madam Safiah Chowdhury, who is a representative of the Islamic Society of North America. She was at the public safety committee. Without being questioned by any member of the committee, she proactively brought up this bill as a specific example of some of the issues that concerned people about how we were broadly expanding the powers given to American agents at the borders, on Canadian soil, without taking time to ask ourselves what the consequences would be. She said:

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. I will be forced to enter as a Canadian on Canadian soil and to answer these questions, especially given the climate in the United States. This is really worrying.

There are also concerns about how it disproportionately affects permanent residents, particularly of Muslim backgrounds, and how this may impact their ability to come back to their home country, the country they have adopted as home.

That last point is important. I know the minister will reassure us and say that these folks will not be detained indefinitely, that they are allowed to come back. However, we have to ask ourselves a real question, a question that has been raised by immigration lawyers.

For someone who is not yet a citizen, who is only a permanent resident, and who is undertaking the steps that we as members of Parliament have regularly witnessed through our work as we accompany our constituents when they go through this process, which is already, and rightfully so, a long and complicated process, what happens then? What kind of black mark is being left on the files of people because they have been questioned and potentially led down a path by an American agent, not a Canadian one, for the simple fact they are perhaps going to visit a sick family member in the U.S., or because they might have work obligations, or they might be entrepreneurs and have obligations through trade and other things?

This is a serious question and nothing we have heard from the government reassures us that this is not going to happen. When we hear testimony like that, it should give members pause. It certainly gives us pause.

Another very important issue is that of carrying firearms. I have already raised this with the minister. In fact, Bill C-23 amends the Criminal Code to allow American agents to carry firearms on Canadian soil. We were told that this is an example of reciprocity, in other words, these agents will only be allowed to carry firearms under the same circumstances as Canadian agents. That answer is satisfactory, if we take it at face value.

However, this raises another question, to which we have not received a satisfactory answer: where is this written in the act? In fact, the Liberals are quoting agreements that have no legal restrictions.

Memoranda of understanding are just not enough when it comes to something as serious as allowing American agents the right to bear arms on Canadian soil. The question has to be asked. Why is this new provision needed when pre-clearance already happens in many airports, and at the port of Vancouver, for example, in Canada. What requires this change? We do not have the answer to that.

Considering all the problems this will cause at the border, this is not just about human rights. It also has financial implications.

I want to share something we heard from the president and CEO of Jean Lesage International Airport in Quebec City, an airport that could benefit from this agreement because it would have pre-clearance. Not all of the locations have been chosen yet. If we are looking for an example of where this could have a positive impact, that is the perfect example.

Gaëtan Gagné, president and CEO of the Jean Lesage International Airport in Quebec City, said that the people of Quebec City are not “second-class Canadian citizens”.

What he meant by that was that the people should not have to pay for a service that is free in airports such as Montreal's. There is a financial factor in play here, and the federal government has obligations. We hope that the minister will be able to provide some answers during this debate.

I just want to come back to the question of biometrics, which I raised earlier in my speech, because I do want to quote, from the public safety committee, Mr. Alex Neve, who is the secretary general of Amnesty International Canada. We asked about the concerns regarding biometrics, and I want to qualify that. I recognize the minister's efforts with his American counterpart to not have these types of technology implemented, at least not at a rapid fire pace, but again it begs a question. If these technologies are implemented by the U.S. government, what impact will that have in the pre-clearance zone? I want to use this quote to raise that particular concern while we talk about the border. Mr. Neve said:

...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.

Given that uncertainty, it begs the question as to what would happen under those circumstances.

Peter Edelmann, who is a lawyer and a member of the executive of the section of the Canadian Bar Association dealing with immigration law, said he is concerned about the application of the Canadian Charter of Rights and Freedoms. He asked how we can be assured that the U.S. CBP pre-clearance officers will be subjected to the charter. The bill does not specify their status as agents of the state.

The other aspect that I want to raise is very troubling. To return to something else I mentioned in my speech, I would remind members that on Friday, in the House, I asked a question about the possibility of U.S. border agents asking more frequently for people's cell phones to gather information about social networks and other information on phones. I said that a cell phone contains much more personal information than a suitcase, for example. Consequently, searching the suitcase of a law abiding citizen, which contains his razor and clothing, for example, is not the same as searching his cell phone.

The parliamentary secretary answered that everything was fine since there are directives in place for Canadian officers. However, we still have questions about the obligations of U.S. officers. It is a matter of culture.

We know that our men and women in uniform follow procedures to ensure our safety in Canada, and we are very proud of that. Though we cannot go so far as to challenge American procedures, we can still ask questions.

In cases of violations committed by American pre-clearance officers, the inspecting party, in other words, the United States, will have primary jurisdiction over most offences, except murder, aggravated sexual assault, and terrorism.

That seems fine, but what about assault in general? That is an important item that is missing from the list of exceptions. What sort of practices can be used during an interrogation? We do not know, but should assault be committed during an interrogation, there is nothing in the law to ensure that the American officer in question is subject to Canada's jurisdiction.

There are other concerns that I could mention, but I would like to conclude by saying that, although these concerns are nothing new, they are becoming increasingly important given the rapidly changing reality. Unfortunately, the government does not seem to be able to stand up and oppose President Trump's human rights violations and discriminatory policies.

With the time that is left to me, I do want to propose the following amendment:

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 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.”

[The Assistant Deputy Speaker, NDP, Carol Hughes]

The amendment is in order.

Questions and comments. The hon. Minister of Public Safety and Emergency Preparedness.

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

Madam Speaker, I am grateful to have the observations that were just made by the member representing the NDP, in which he raised concerns about legal protections, and I would like to draw his attention to two particular clauses in this legislation and to ask why he finds these clauses deficient. I refer to subclause 10(2) that says, in reference to a U.S. pre-clearance officer in Canada:

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.

Then clause 11 says that U.S. pre-clearance officers:

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.

I just wonder how much clearer we could possibly be.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, I thank the minister for his question.

The first issue is the application of American laws, which is problematic. I would like to quote Craig Forcese on the subject of the Charter of Rights and Freedoms:

Craig Forcese said:

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.

The problem is that we are opening this door to a situation where, even though the bill says one thing, we are looking at the application of it, and that is what concerns us.

The other issue is the one I raised, where we enumerate specific instances where American agents would be subject to Canadian courts and we say murder, terrorism, and sexual assault. There is no mention of assault. There is another glaring example.

Our issue is that pre-clearance happens already, and we want to understand why the American agents need these powers, and if there are so many charter protections, why include them at all?

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

Madam Speaker, I appreciate that the hon. minister is here, because I was unable to put my question to him. I have real concerns about Bill C-23. In a nutshell, it is best summarized by saying that, if a Canadian citizen or a Canadian permanent resident seeking entry to the United States has the absolute right to withdraw from the interview at any time and leave, I would not be as concerned as I am by the provisions that say that questions can continue.

I am concerned by subclause 16(1) as a justification that:

A preclearance officer is, if they act on reasonable grounds, justified in doing what they are required or authorized to do under this Act and in using as much force as is necessary for that purpose.

Also, subclause 2, limitation, encourages them not to cause death or grievous bodily harm, but again, this is all on the decision made on the spot by a U.S. agent.

I have to ask this for my hon. colleague who just spoke. Do we imagine that there will be intensive training for U.S. agents to understand the Canadian Charter of Rights and Freedoms? Certainly there are a lot of examples of U.S. agents not understanding the U.S. Bill of Rights.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, that is an important point, because the use-of-force standards for Canadian agents and for American agents are different. That is exactly one of the parts of the bill where we can identify that being an issue.

It raises another issue, if my hon. colleague will allow me to raise another point that I did not have time to mention during my speech. The minister raised it in his speech. It is the concern, for example, of the absence of a Canadian officer if ever a body search has to take place. The example the minister gives is that in six decades it has only happened once or it has never happened, so it does not matter. However, we do not draft laws by saying, well, it never happens so it probably will not happen, so it is no big deal. It is very serious, especially when we consider, for example, the transgendered community and the very different definition that exists for U.S. customs in how its officers treat people in terms of deciding whether a man or a woman will be the one doing the search on a citizen. How do we reconcile that with how we treat a Canadian who might be in that position? It is not clear, and it is a problem.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Madam Speaker, to my colleague, I imagine that you are getting the same kind of mail that I am—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I want to remind the member to address comments and questions to the Chair.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Madam Speaker, I would like to hear my colleague's comments on whether he is getting the same kind of mail that I am, hearing from constituents who are concerned that U.S. border guards are not likely to carry out responsibilities at our border in the way we would expect on Canadian soil. Here is an excerpt from a letter from Katherine in Nanaimo. She is a U.S. citizen and a Canadian permanent resident. She said:

My second objection to Bill C-23 has to do with the new powers that it would give to American border guards in pre-clearance areas. I do not think that American border agents on Canadian soil should have the power to carry firearms, detain Canadian citizens or residents, or conduct strip searches....

I am sure that there are practical and economic benefits to Bill C-23. I myself enjoy the convenience of pre-screening when I visit the U.S. through Vancouver International Airport. These benefits, however, cannot be valued higher than the human rights of Canadian citizens and residents.

I'd like to know whether my colleague has heard anything through this debate that gives him confidence that the violations my constituent describes are justified by the accelerated movement of travel through the border.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, the issue here is that people are concerned because we are saying that we want to expand the number of places where pre-clearance happens, and we want Canadians to do pre-clearance in the U.S. As I said in my speech, that is all fine and good; yet we do not have a justification for why they would need this sudden expansion of powers. As I said at the outset, in the climate that exists now where we are seeing Canadians being turned away at the border, being asked for their cell phones, and being profiled, Canadians are rightfully concerned about what this would mean.

Again, I return to my question for the minister. If the safeguards are so strong that none of these things will happen, then why even give these extra powers to American agents at all? Why not just have faith in Canadian agents and law enforcement to ensure security and to ensure that this is all happening properly and just keep the system in place as it is now? That is not something the government has been able to justify.

Once again, we have the government finding itself in a situation where there is a climate that is changing quickly. It is an unpredictable situation. Who knows what executive order will be signed tomorrow? Who knows what Canadians will be asked to give up next at the border for the right to simply go to visit a family member or to conduct business or work? That is the concern Canadians have, and that is why we find that there has not been sufficient justification for this expansion of powers.

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

Madam Speaker, I am not too sure but it seems that the New Democrats are just closing their eyes in terms of one specific reality, which is that pre-clearance has been received quite well among the Canadian population. We see it as a positive thing. It is important that we emphasize that. When we think of U.S. customs officers who are on Canadian soil, for all Canadians and residents the Charter of Rights and Freedoms is a given for them. I do not quite understand what the New Democrats are suggesting. Are they suggesting, in this new era, that we should be looking at decreasing the number of pre-clearances that are taking place? I do not think that would be in sync with what most people want to see.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, what Canadians want to see is a government that will stand up for their rights and not have a situation like the gentleman from Vancouver who is turned away at the border because of his sexual orientation and because he is being accused of hiding something nefarious on his phone because he deleted his browser history.

As I said at the outset, we certainly agree with the upside of pre-clearance. Again, I would ask the government to explain why, if pre-clearance already exists and pre-clearance zones already exist, we need to hand over all these powers to American agents on Canadian soil if the system is already in place and we simply want to have it happen at more destinations.