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

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, it is unfortunate the member likes to wind himself up and let himself go like that. At any rate, I think it is important to note that we were not talking about just at airports. We were talking quite clearly about some of the crime and corruption that is taking place and the fact that we are actually increasing the flexibility, the rights, and the provisions at this time. There is clearly a distinct difference between what the Liberals want to do here with unaccountability, with no thorough process and due diligence later on, versus that of right now of making sure we clearly understand what we would be dealing with. Having done this and grown up on the border, being in Washington all the time, working with customs and also working with American senators and Congress as well, they are very aware of the fragility of what is taking place. Ironically, they are also some of the strongest advocates who are also concerned about this empowerment.

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

Mr. Speaker, the member was speaking about his experience at the borders and being with a friend from an ethnic minority. I just today saw an article from Global News about a Montreal woman named Manpreet Kooner, born and raised in Montreal, being refused access at the border. She was with her Caucasian girlfriends who were not stopped. They were going to go to a spa on the U.S. side of the border and were turned away. It was clearly racialized. It was clearly profiling. It was clearly an attitude from U.S. customs officials and border guards.

In this pre-clearance process, which we generally support, it is very convenient to be able pre-clear before we go through the border. What I do not understand and no government member has explained it to me, maybe the hon. member from the NDP can explain it, is why we have this change in Bill C-23. We have pre-clearance now, in the Ottawa airport, before going to the U.S. It is a good idea to expand it to other places. Why do we need to give permission to U.S. border guards, in the current climate of racial profiling, to behave in this way? I think that is one of the key things the Trump White House is telegraphing to border guards: they can discriminate and it will be okay. Why give them active powers?

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, that is exactly the point. There is no valid reason that can be provided. These are simply best practices that are operating now and that are working very well. In fact, what we should be doing is expanding those opportunities in the current guide and model that is actually working. What we are talking about right now, and that is the reason I mentioned some of those cases, is that those are officers who are coming to work on our border and some of them could have issues like that. We will not be able to have those types of checks and balances. When they have the question of this going on right now, there is no question that there should be that accountability.

Again, there is no reason to arm them at this particular point in time. It is a seceding of jurisdiction. It is a seceding of the Charter of Rights and Freedoms. There are many cases as I have worked the border file over a number of different years of problems related to that. Most recently, we even had an American police officer discharge his firearm on himself while he was smuggling it into Canada. That is a recent one that took place over the last five years. There are other ones, as well, but none of the things that we have mentioned here will solve those problems if we do not have these accountability measures.

[David Graham, Liberal, Laurentides—Labelle, QC]

Mr. Speaker, I am pleased to rise today to discuss Bill C-23, which would provide the necessary authority under Canadian law to implement the land, rail, marine, and air transport preclearance agreement, thereby expanding U.S. pre-clearance operations in Canada and, for the first time, enabling pre-clearance of cargo and Canadian pre-clearance operations in the United States.

Pre-clearance makes travel faster and easier for tourists and business travellers alike, and makes it faster and easier for Canadian companies to do business with Americans. It also allows Canadian travellers to undergo U.S. border procedures while under the protection of Canadian law and our Charter of Rights and Freedoms.

The proposed expansion of pre-clearance enabled by Bill C-23 has been greeted with enthusiasm by chambers of commerce across the country, by the tourism industry, which is in fact extremely important in Laurentides—Labelle, by the trucking industry, and by government partners, among others. For example, the mayor of Quebec City has called it a great victory for his city.

Pre-clearance operations for passengers have been a success story for more than 60 years, but they currently exist in only eight Canadian airports, and they do not exist for cargo at all. It is time to build on that success.

The proposed expansion to new locations and modes of travel requires an agreement with the United States. That agreement has been reached, and the United States has passed the legislation needed for implementation in their country with unanimous support in both houses of Congress. However, if we do not pass Bill C-23, the agreement will come to naught, and the benefits of pre-clearance will remain limited to those Canadians who already enjoy them.

Nevertheless, throughout this debate, the NDP members have been advocating in favour of the existing legislative framework. According to the member for Vancouver East, the current pre-clearance system is working well. The member for Beloeil—Chambly has said that the current pre-clearance system works just fine. The member for Esquimalt—Saanich—Sooke said that pre-clearance is working very well already. In addition, the member for Windsor—Tecumseh said that she understood that pre-clearance is a process that exists today and it works.

Yes, it does, and I agree that the current legal framework, which has been in place since 1999, has served Canada well, but the NDP support for it is interesting because, in 1999, when this legal framework was proposed, the NDP had a very different take.

At the time, the member for Winnipeg—Transcona, Bill Blaikie, said that the bill raised questions about privacy protection. Mr. Blaikie stated reservations concerning the power of U.S. authorities to detain people, in particular, and he was afraid that U.S. law would be applied on Canadian soil. This sounds somewhat familiar.

The then member for Winnipeg Centre, Pat Martin, said he had serious reservations about the bill. He said it was too “intrusive” and “a breach of Canadian sovereignty”. He was worried that foreign officers would have the right to hold people and stop people from leaving. He argued that by passing the bill, the House was granting foreigners powers on our soil, which the NDP did not think was necessary. He went on to declare that the NDP remained firmly opposed to the creation of Canadian offences for resisting or misleading a foreign pre-clearance officer. He accused proponents of the bill, a group that now seems to include the NDP caucus, of being ready to trample on Canadian sovereignty. The best part is that he said that the bill opened up such a can of worms that it should be sent back to the other place for them to try again and take into consideration such basic things as national pride.

Clearly, a couple of decades later, the NDP realizes that its concerns back then were overblown, not to say unfounded, but here we are again. A new legal pre-clearance framework is again being proposed and the NDP is again sounding the alarm about perceived threats to Canadian sovereignty and perceived powers granted to foreign officers. It will not surprise me if 20 years from now New Democrats leap to the defence of Bill C-23 while insisting that any changes to it would mark the demise of the sovereignty of Canada.

Let us be reasonable. In many respects, Bill C-23 is very similar to the current framework. As concerns authorities to detain, question, search travellers, and seize goods, Bill C-23 is either identical to the existing law or very nearly so.

The same is true regarding penalties for obstructing or lying to an officer, and the right to withdraw from a pre-clearance area is maintained. A traveller just has to say who they are and why they are leaving.

The totality of U.S. pre-clearance operations in Canada would be subject to Canadian law, the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act. That is an improvement over the present situation, where travellers arrive in the United States and clear customs without any of those protections.

The motion put forward by the member for Beloeil—Chambly asks us to reject Bill C-23 because of what he referred to as the climate of uncertainty at the U.S. border, but it is precisely with legislation like this that we are best able to reduce uncertainty for Canadian travellers.

The bill provides a clear legal framework governing the actions of U.S. officers on Canadian soil and requires U.S. officers in Canada to adhere to Canadian legal and constitutional standards.

Today, for instance, a Canadian taking the train from Montreal to New York has to disembark after crossing the border and submit to U.S. customs and immigration processes without any Canadian legal protection. With Bill C-23 in place, that traveller could be processed at the train station in Montreal with Canadian constitutional safeguards in force and with Canadian authorities on site.

In other words, not only would the legislation bring about substantial economic benefits and make trips to the United States quicker and more convenient for Canadian travellers, it would also enhance constitutional and legal protection for those very travellers.

That helps regions like mine. In my riding, we have the Mont Tremblant International Airport at La Macaza, where flights coming from outside Canada land. At present, it is very difficult to get customs services at that airport, even though it is a port of entry, since it is very costly to bring customs officers from Mirabel.

In the long term, it would help us if U.S. airports already had Canadian customs officers, since they would be able to go to any airport in Canada. That would save a lot of time and improve the economy in the Laurentians. It would solve a problem that has existed for a very long time: the fact that La Macaza is unable to accommodate enough flights from outside Canada, since the costs associated with customs services are too high.

I therefore think this bill is very important for the Laurentians region. I hope it will pass and we will see a number of U.S. airports offering Canadian services. I think that will benefit our entire economy. I know of a number of situations where it will save a lot of time.

When I was younger, I often travelled to the United States. I attended secondary school there, and I took the train or drove to get there. If I had had the option of clearing customs before getting on the train, I would have saved a lot of time. The train left Toronto at 7:00 a.m. and arrived in Buffalo at 2:00 p.m., when the trip by car took less than two hours. That enormous waste of time was caused by customs procedures.

Often, when the train gets to the border as it leaves the country, whichever direction it is going, customs officers check exports, and that takes an hour and a half. Then, when the train gets to the other side of the border, customs officers check imports, and that takes another hour and a half. That means that, altogether, passengers spend three hours at the border, something that simply would not happen if that checking were done at the outset.

Bill C-23 is an improvement over the existing situation. It gives Canadian officers on American soil the same rights as American officers on Canadian soil. It will also improve the economy in all of Canada’s tourist regions.

I am very eager to see this bill come into force.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Mr. Speaker, I have a question for my colleague.

He just said that Bill C-23 changes almost nothing in terms of the current situation, but what about the fact that the current law does not allow a U.S. customs officer to conduct a strip search without a Canadian officer of the same gender present? This has been changed, which is rather troubling, considering the eagerness of U.S. personnel. Earlier my colleague from Windsor said he was very familiar with borders. In fact, people from Detroit and Windsor spend much of their lives going through customs.

The fact that a stip search could be conducted from now on by a U.S. officer without a Canadian officer of the same gender present is a huge change.

[David Graham, Liberal, Laurentides—Labelle, QC]

Mr. Speaker, we have heard this many times today.

Clearly, this right is something new. The difference is that if there is an unreasonable delay, the search may proceed. I do not think this is unreasonable. If someone travels to the U.S. without pre-clearance, and they arrive without Canadian protections, the same thing will happen. Accordingly, it is much more efficient to go ahead with the system proposed in Bill C-23. That does not really bother me.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I have a question for my colleague because many of the things that are new in this bill really are troubling.

For example, in the past, people in the pre-clearance area on Canadian soil had the right to say that they did not like the interrogation, that they were uncomfortable, and that they were going to go home and not travel to the U.S. Now people no longer have the right to halt the interrogation. Canadians can be detained and forced to answer U.S. officers' questions.

What does my colleague think of that? Is he okay with it? Does he think Canadians should be okay with it?

[David Graham, Liberal, Laurentides—Labelle, QC]

Mr. Speaker, I understand the question. To me, this is not a major departure from what is currently happening. If someone currently travelling to the United States gets off the plane and changes their mind, what are they going to do? Get back on the plane and leave? That does not work. Clearing customs in Canada is more efficient. Rights are protected under the Canadian Charter of Rights and Freedoms, but nothing really changes. When someone arrives in the United states, they will be subject to the same restrictions as they are right now.

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

Mr. Speaker, my colleague talks a great deal about the province of Quebec, his home province. Quebec will benefit in two ways directly. One is through the new airport and rail line where pre-clearance service will be offered, which was not there before. There are many benefits through pre-clearance. We have heard the debate for many hours in regard to how Canadians and the U.S. benefit by pre-clearance.

Could my colleague expand on why it is so important that we not only settle for the eight airports we currently have, but also look at other airports because then more Canadians will actually benefit by it?

[David Graham, Liberal, Laurentides—Labelle, QC]

Mr. Speaker, the fact that there is only a handful of airports that have this and it only goes in one direction does not really benefit us nearly as much as it possibly could. If we have pre-clearance in the U.S. to come to Canada, that is a huge advantage for Canada, a huge advantage for regions like mine in the Laurentians where we have an international airport without international flights because it is too difficult to offer customs. It is very important we have this system expanded a little everywhere for rail, for goods, for people, and flights. This is a terrific expansion of this service. I am very much looking forward to it being implemented.

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, I am pleased to rise today in the House to speak to the legislation before us, Bill C-23, an act respecting the preclearance of persons and goods in Canada and the United States.

As members know, the Prime Minister pledged to Canadians that our government would work hard to renew the relationship we had with the United States and that we would provide greater security and opportunity for Canadians. The legislation before us is part of the action we are taking to fulfill that pledge.

Last week, I spoke with grade 10 civic students in Guelph at Bishop Macdonell High School. This topic came up with the students talking about the benefits of doing clearances in Canada versus on foreign soil, so it is great to be part of this discussion this afternoon. We have strong evidence from long-standing operations at eight Canadian airports that pre-clearance is an effective and efficient way to move millions of people from Canada into the United States every year, some 12 million people, in fact. It offers many benefits, both directly and indirectly, to both nations.

For example, it allows travellers from Canada to fly directly to a larger number of U.S. cities, including to smaller American airports, with no customs presence. It makes for faster connections. Pre-cleared passengers do not have to go through customs inspection upon arrival in the United States, which means shorter connection times and early arrival at final destinations. It adds predictability to travel plans, with passengers knowing they are already screened and can just collect their luggage and leave the airport on the other side. It enhances security by better managing risks and threats.

While pre-clearance formally exists only at airports at the moment, we also know that pre-inspection of rail and marine passenger exists and works with great success at several locations in British Columbia. For the past 20 years, U.S. customs and border protection has safely and successfully used passenger pre-inspection to streamline travel and security for travellers in that province.

In addition to the concrete direct benefits, there are a number of positive impacts that flow directly and indirectly from pre-clearance operations. For example, reduced border costs and fewer delays for commercial operations can lead to increased trade and increased foreign investment. The reduced wait times for passengers can lead to increased tourism and business travel.

The economic and security benefits of these pre-clearance and pre-inspection operations have led to calls from stakeholders and governments on both sides of the border for expansion to all modes of travel and to more locations. With the proposed legislation, we are taking an important step toward making that happen. Bill C-23 will enable us to continue moving ahead with expanded operations and modes of transportation that were agreed to in principle by the Minister of Public Safety and the U.S. Secretary of Homeland Security in March 2016.

In brief, the bill has two key elements.

First, it will put in place the necessary legislative authorities to allow the United States to conduct pre-clearance operations in Canada. Today, pre-clearance is authorized only at Canadian airports under the Preclearance Act of 2001. The new authorities will allow for expansion subject to site-specific agreements to marine, rail, and land modes, as well as to pre-clearance of cargo.

Second, it will provide authorities for Canada to conduct pre-clearance in the United States in all modes of travel. The bill sets out where and when pre-clearance can occur, who has access to the pre-clearance area, the authorities of U.S. pre-clearance officers working in Canada and vice versa, and how police and border services officers can assist and work with pre-clearance officers. It also includes provisions affirming that pre-clearance operations in both countries must be conducted in accordance with Canadian law, including the Charter of Rights and Freedoms.

Our government is firmly committed to moving ahead with pre-clearance measures and building on our strong partnership with the United States. Indeed, this legislation is good news for Canadians and Americans. It would strengthen Canada's economic competitiveness by accelerating legitimate trade and travel, while keeping our borders secure.

In fact, after Canada and the United States signed an agreement in principle for new pre-clearance operations in March 2016, the president and CEO of the U.S. Travel Association said, “Customs preclearance is one of the innovative programs that demonstrates there need not be a zero-sum choice between security and an efficient travel experience”.

Similar sentiments have been expressed by Canadian businesses and associations like the Tourism Industry Association of Canada. With specific reference to rail travel, its vice president of public policy and industry affairs, Rob Taylor, has pointed out that pre-clearance makes sense from a security standpoint because border officials can intercept people before they cross the border. It makes sense for travellers, because if they get cleared before they get on the train, it is so much easier than having to stop that trip half way through.

This is exactly what pre-clearance offers. It is a way to encourage legitimate trade and travel, while keeping our borders secure. It is an idea that is gaining ground around the world, with more and more countries looking to introduce or expand pre-clearance at their airports.

This brings me back to the importance of Bill C-23.

The benefits of expanded pre-clearance have been touted by everyone from the Canadian Chamber of Commerce and the Canadian Council of Chief Executives to local tourism operators, as well as mayors and airport authorities. Pre-clearance improves the competitiveness of Canadian business and the experience of Canadian travellers. Now is the time to expand these operations in Canada and to examine how and where the Canada Border Services Agency could implement pre-clearance facilities in the United States.

Our government is committed to working with our allies, particularly the United States, to increase travel and to enhance North American competitiveness, as well as our collective security. I urge all members to support Bill C-23 and ensure its swift passage.

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

Mr. Speaker, as we get closer to an actual vote on this important legislation, it bears repeating just how important pre-clearance is to Canada's economy. Both Canada and the U.S. benefit from it.

I often talk about and use the example of Folklorama. It is one of the best multicultural events in the world. Many Americans fly into Winnipeg to participate in Folklorama. That is not unique. We get many tourists coming from the U.S. They use pre-clearance. Millions of Canadians use pre-clearance to go to the U.S. The convenience of pre-clearance has proven to be beneficial, both to Canada and the U.S.

Would my colleague agree that the more the government can move toward making it easier for Canadians and Americans to cross our shared border the better it is?

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, I agree that we need more travel between Canada and the United States and we need less barriers to that travel, provided our security is intact.

One of the great things about the bill is that all the clearance happens on Canadian soil, which means that people who are going through the process of pre-clearance fall under the regulations and the Charter of Rights and Freedoms within Canada. If they have a problem, it is better to have it in Canada than on foreign soil. The easier it is for Canadians to welcome Americans and for Americans to visit our country, the better it will be for tourism.

More important, as the Chamber of Commerce has said for many years, thinning out the borders so goods can travel between the borders is also as important, in fact more important in terms of dollars per GDP. Having that border opened up, securely, is very important to both countries.

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

Mr. Speaker, I want to draw the hon. member's attention to part three of the bill, which provides related amendments to the Criminal Code and to the Firearms Act. It basically provides the United States pre-clearance officers with an exemption from criminal liability under both those acts with respect to the carriage of firearms. It seems to me that in our current pre-clearance system, if a United States agent on Canadian soil needs assistance that necessitates the use of a firearm, why does that person not simply use the services of the RCMP, or if a CBSA officer is similarly armed, the services of that officer?

This is the crux of the matter on our sovereignty. Why are we allowing U.S. agents to carry a weapon, which is an extreme use of force, on Canadian soil? Why do we not have faith in Canadian police authorities and CBSA officers to do that job for us? They have been authorized by this Parliament and by the government to do that force on behalf of the Canadian people. It is a jurisdictional issue, and I would like to hear the member's response on that.

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, I thank the hon. member for his continued questions on this topic.

I think we have answered this in the past, but to continue our answer, the border patrols on both sides of the border would be equal in terms of carrying arms. If we do not have arms, as in our airports, they do not have arms. If at some point we have arms at the land crossings, then there would be arms. However, in both cases, the laws of Canada would apply when we are on Canadian soil.

There is no threat to Canadians by using the types of force that Canadian border officials would be using, which is very much identical to what the American border officials would be using as well.