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

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Madam Speaker, I was going to ask the member opposite if he is worried about the cannabis question because he is afraid of saying yes.

On a more serious note, the access to information, privacy and ethics committee has recently undertaken a study of the protection of Canadians' privacy at the border and in the United States. The Canadian Civil Liberties Association, the BC Civil Liberties Association, and the ACLU testified at committee recently. We walked through the guidance from the government to the CBSA. There was an argument over the extent of the privacy protections, and although there are substantive protections in place for searches, particularly of electronic devices at the border, we heard from the ACLU that there are zero protections for Canadians crossing United States borders and that Canadians who refuse a full search of their electronic devices would be sent back to Canada.

When we talk about preclearance and the protection of Canadians' privacy rights, is it not important to have the searches and questioning of Canadians take place on Canadian soil, with Canadian laws and Canadian protections?

[Erin O'Toole, Conservative, Durham, ON]

Madam Speaker, I like the member for Beaches—East York for two reasons. I used to live in Beaches, and I like him and the neighbourhood a lot. I also like how he gives people in what used to be called the Langevin Block some headaches. I hope he continues to do that in the run-up to announcing his bid for the NDP leadership. Was I not supposed to say that?

I will answer for the benefit of my friend in Winnipeg North, who has been a good friend the last few weeks. I have quoted him at length, not from this Parliament but the last one. I know he does not like that, so I will answer the question. The answer is no, because I wanted to join the Canadian Armed Forces.

However, I did think in the last Parliament that we should have modernized our approach to cannabis, and I was on the record about that. I and the former Toronto police chief, now a member of this place, had some good debates on that question.

The member has raised a good point. The only way that Canadians can assure themselves of their privacy protections and protections against search and other things granted in Bill C-23 is to withdraw from preclearance, which means not to go to the United States. It is in the bill.

As I said, this was an example of three things that were rushed that day in Washington, and we should take more time to get it right.

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

Madam Speaker, the speech of my hon. friend from Durham was riveting. There is just one really big problem with the thesis, which is that this terrible bill—and I agree with him on that—is not the product of bad negotiations by the current government, but bad negotiations under Stephen Harper, because the preclearance bill was negotiated and concretized in 2015 between the previous government and the Obama administration.

The U.S. Congress passed its version of the bill back in early December. This version, we were told in committee, is take it or leave it, because it is already in an agreement that was negotiated under Stephen Harper. I believe it is better to leave it than to take it, but I did want to correct that aspect of my friend from Durham's narrative, as riveting as it was.

[Erin O'Toole, Conservative, Durham, ON]

Madam Speaker, it is always a pleasure to respond to my friend from Saanich—Gulf Islands. I enjoyed my time in her lovely riding during my travels in the last eight months.

She is partially correct. The last government was very close to a deal, but this was one of areas that led to its not being confirmed. In fact, Prime Minister Harper at the time was very well known for his strong advocacy for Keystone, even in the U.S., where he said it was a no-brainer. The member is only partially right. This was a central negotiation point because Harper fought for deals in Canada's interest. I have yet to see this from the current Prime Minister.

[The Assistant Deputy Speaker, Carol Hughes]

Unfortunately, given the time, we have to move on. The hon. member will have about five minutes and 40 seconds left for questions and comments when this item is before the House again.

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The House resumed consideration of the motion that Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, be read the third time and passed.

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

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-23 today. Since the last time this came up in the House, we have gone through the committee review process, and I would now like to share some of my thoughts.

I would like to begin, though, by reiterating why we, New Democrats, are opposed to Bill C-23. First, it grants egregious powers to American officers on Canadian soil. I want to make it clear that we recognize the benefits of preclearance, which is already happening. That is why we have to wonder why expanding a system that is already working very well means giving American officers all of these additional powers. We never did get an answer to that question from the minister or other experts who testified in favour of the bill.

The government's main argument, which we heard earlier in the parliamentary secretary's speech, is about the economic benefit of expanding the preclearance process, which would happen in more airports, train stations, and eventually, border crossings.

If that is the only argument in favour of doing this, we need to ask ourselves what justifies these additional powers.

Let us go through some of the powers to be given to American agents, on Canadian soil, through the bill and through the deal that was been signed by the Government of Canada and the U.S. administration.

First, there is the excessive powers of American agents in a situation where a traveller chooses to leave a preclearance zone. The minister assures us this is okay, that it simply has to do with the safety and integrity of these preclearance zones. We have police, CBSA officers, and other forms of security in airports already. Therefore, it is difficult to understand why an American agent would be given the power, on Canadian soil, to question a Canadian who chooses to leave the preclearance zone and, even in some cases, detain that individual under the vague language in the bill.

A Canadian would rightfully say that this seems reasonable, that if someone leaves the preclearance zone, it must be suspicious. That is not the case. We have seen some of the treatment Canadian citizens receive at the border. They are victims of American agents based on their religious beliefs, or the colour of their skin or their country of origin. This was testimony at committee. Who is to say that Canadians of certain origins might decide that an abusive line of questioning is not something they are willing to accept, so they decide to take their bags and go home. That would be sufficient reason to leave the preclearance zone. Unfortunately, under the bill, and under the agreement, that would allow the American officer, on Canadian soil, to potentially go all the way to detain them and interrogate them. We find that unacceptable.

The other very important matter has to do with strip searches, another issue raised by the parliamentary secretary. We can all agree that we give up some of our rights when we go through customs. For instance, we allow our luggage to be searched. Still, I have difficulty understanding why we should allow American agents to search Canadian citizens on Canadian soil.

The bill states that if no Canadian agents are available or willing to do the search, perhaps because they do not consider it necessary, an American agent may do it. The minister justified this by saying that it is nothing to worry about because in the 60 years that preclearance has existed, no Canadian agent has ever been unavailable or unwilling to do a search.

Just because the exception happens to prove the rule in this case does not mean that this legislation safeguards the rights and freedoms of Canadians.

Legislation cannot be drafted on the premise that the exceptions prove the rule. Our legislation must be robust and comprehensive in order to ensure that there are no potential loopholes that would allow the rights of Canadians to be violated on Canadian soil.

The other issue is with regard to the carrying of firearms. The bill, based on reciprocity found in the agreement, would exempt American agents from elements of the Criminal Code that would normally prevent an American agent officer from carrying firearms on Canadian soil.

The minister has assured us that there are memoranda of understanding that it is reciprocity, and that this would only happen in places where Canadian border officers are already carrying firearms. The example the minister gave was at Pearson airport where the Peel Regional Police ensures security. The American agents would not be carrying firearms because Canadian agents do not. It is the local police that ensure the security of the airport.

I asked the minister in committee if he could tell me, given the fact that the bill would specifically create these Criminal Code exemptions, if there was any other legal provision or protection beyond memoranda of understanding, which have no legal authority, and the agreement, that would prevent an American border officer from carrying a firearm. The response received was no response at all. There are no guarantees to say there is any legal remedy for an American officer that might be in said airport, for example, at Pearson, on Canadian soil carrying a firearm. That is not acceptable.

In committee, we identified a number of problems with the process. I asked officials from the Department of Public Safety a question in order to find out what regulatory changes would be made. The government is making regulatory changes to address the cases of people who are exempt from certain procedures. Take, for example, employees who work in a port and who would need access to a preclearance area to do their job every day. They would not be subject to American authority while at work, which is the least we could expect. These are the kinds of exemptions that the regulations would change.

In committee, we debated a bill that makes fundamental changes, yet no one was able to tell us what regulations would be changed. Everyone knows that regulations are not subject to debate in the House because parliamentarians do not vote on them. One fundamental problem with the changes made by the agreement and by Bill C-23 has to do with the minister's discretionary power.

I will give the department credit because it did provide a written answer to my questions. However, in the written answer, the department indicated that it was uncertain which regulations would be affected. We think it is unacceptable that we are not being given a definitive answer on this.

The government's main argument around all these issues around Canadians' rights potentially being violated by American border officers on Canadian soil is not to worry because Canadian law and charter rights apply. That is what the bill says, but what would the bill actually do?

In committee, witness after witness reminded us that, because of the State Immunity Act and how the bill is drafted, there really is no legal remedy. Even the Conservative public safety critic sitting on the committee, the member for Parry Sound—Muskoka, agreed that there is no legal recourse.

Why is that important? The protections accorded to us as Canadians by law and charter, if those rights are violated, what do we need to do? We need to go to court to uphold those rights. If we cannot bring the American officer to court, based on how this bill is drafted, then there is no remedy. Those charter protections are just words on paper and not given force of law and force of our constitutional rights. That is totally unacceptable to us.

A specific argument was raised both in committee and here in the House. The Liberals claimed they were bound by the agreement to enact certain provisions, and that they were sorry if some members did not like it. They added that the agreement was negotiated and signed under the previous Conservative government and under the Obama administration, and not under the current president, and we have to live with it.

It takes courage to say that this is a bad agreement. After the study in committee, where we heard from groups like the British Columbia Civil Liberties Association, various associations representing Canadians from countries targeted by President Trump's executive orders, and the Canadian Bar Association, we concluded that it was a bad agreement. It takes courage to tell the Americans that we will not allow the rights of Canadians to be jeopardized because of the presence of American agents on Canadian soil. I think that is the minimum we can do.

The Prime Minister himself actually said that if Canadians are subject to racial profiling or their rights are violated at customs, at least it will happen in Canada where they are protected by Canadian laws and the Canadian Charter of Rights and Freedoms.

What this really tells me is that we currently have a serious problem regarding how American agents are treating Canadian citizens at the border. The situation is completely unacceptable.

The previous government signed the agreement. The former public safety minister, now the member for Bellechasse—Les Etchemins—Lévis, signed the agreement with his American counterpart, but the Conservatives did not get the bill through the House to set up the legislative measures needed to implement the agreement. I gather from what they said in committee that the Conservatives felt there were problems with the agreement. They may not be as disappointed as us about the loopholes this will create, but even the Conservatives on the committee recognized that it would not be appropriate for an American officer to strip search someone on Canadian soil.

It is about time, when it comes to dealing with the Americans, that we have a government that understands that when we negotiate, we do not just give. We have to get something in return, and in this agreement, beyond the expansion of where preclearance takes place, all we have seen here is the government being really willing to roll over, and give all these new powers to American agents on Canadian soil.

[Some hon. members]

Oh, oh!

[The Assistant Deputy Speaker, Anthony Rota]

Order. It is nice to see everyone getting along, but I want to remind hon. members there is a speech taking place, and I would like everyone to pay the attention I am paying to it. It is actually quite interesting. If hon. members are having discussions on the side, I ask them to take it to the lobby, or maybe just whisper rather than talking across the aisle.

The hon. member for Beloeil—Chambly.

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

Mr. Speaker, if I were a member of the government, and saw how things were going in the Senate and the position the Liberals have put themselves in, I suppose I would be stirring around in the House in the same way.

We realize that the Liberals have said they are disappointed in withdrawing from Paris, and they remain completely silent on the matter of Trump's travel ban, which was outright discrimination, and flew in the face of everything we should stand for as Canadians. This is exactly what we have here with this agreement.

Once again, we see Liberal MPs in committee saying, “It is too bad. That is what the agreement is, and we have to live with it.” No, we as New Democrats refuse to just live with it. We will not accept creating loopholes in legislation just for economic gain, which we acknowledge preclearance can bring, just to give all these extra powers that just simply are not necessary.

If preclearance, as it happens today, right now, before the adoption of this legislation, is so great, as the government tells us, I keep asking the same question that I asked at the outset of my speech. Why do the Americans need all these new powers? I guess the answer would be simply because they asked for them. That is not justification enough for creating a situation where American officers can limit Canadians' rights on Canadian soil. We will not accept that.

I want to wrap up by saying that we proposed a number of amendments in committee that would have added the necessary legal protection. We even wanted to change the word “sex” to “gender” to protect transgender people.

I remember that, on the day of the photo with the pride flag and the Prime Minister in front of Parliament, everyone was running up for a picture, as usual. The government was too chicken to agree to that change so the language of the bill would be in sync with the times, open, and inclusive. They are happy to do photo ops, but they refuse to protect transgender Canadians in the legislation, and yet they go on about walking the talk.

We proposed amendments that would have guaranteed protections for Canadians. A strip search would be conducted only by a Canadian agent on Canadian soil. The government rejected that. We also proposed amendments to ensure clearer language, for instance regarding something the bill calls “lawful authority”. This is important considering how the bill is currently drafted. In fact, “lawful authority” could be an executive order. It could be the kind of executive order that states that all travellers, whether they are Canadian from Canada or from anywhere else in the world, who enter the United States must unlock their cellphone and social networks. This could be unconstitutional and yet this bill leaves the door wide open to that.

Once again, that is completely unacceptable.

We see the uncertainly with regard to the cavalier way in which the current U.S. administration treats cellphones at the border, for example. A Canadian from Vancouver was turned away at the Washington state border because American agents went through his cellphone. When they realized his sexual orientation, they were afraid he was going to the U.S. to be a sex worker.

Who is to say we will not see that kind of thing happen on Canadian soil? It is very possible with the way the bill is drafted.

In closing, I want to reiterate that when it comes to free trade agreements or any other agreement to be negotiated with the United States, Europe, or any other country we might deal with, we in the NDP will never agree to sacrificing the rights and freedoms of Canadians, especially on Canadian soil, let alone for an administration like the current American administration. That is non-negotiable.

We recognize the economic benefits of preclearance and the convenience of it under the current regime. However, there is nothing to justify negotiating an agreement that gives the big end of the stick, in fact the only stick, to American agents, on Canadian soil, to breach the rights of Canadians. We will never will stand for that.

[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?

[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 preclearance 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.

[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 study 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 preclearance 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 preclearance 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 preclearance 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.

[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.

[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.