Preclearance Act, 2016

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

Sponsor

Ralph Goodale  Liberal

Status

Second reading (Senate), as of Oct. 17, 2017

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Summary

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

This enactment implements the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (the Agreement), done at Washington on March 16, 2015, to provide for the preclearance in each country of travellers and goods bound for the other country.

Part 1 of the enactment authorizes United States preclearance officers to conduct preclearance in Canada of travellers and goods bound for the United States and, among other things, it

(a) authorizes a federal Minister to designate preclearance areas and preclearance perimeters in Canada, in which preclearance may take place;

(b) provides United States preclearance officers with powers to facilitate preclearance;

(c) establishes that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;

(d) authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;

(e) allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained under Part 1; and

(f) limits the ability to request the extradition or provisional arrest of a current or former United States preclearance officer.

Part 2 of the enactment provides for the preclearance in the United States, by Canadian officers, of travellers and goods bound for Canada. Among other things, Part 2

(a) specifies how the Immigration and Refugee Protection Act will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters;

(b) authorizes the Governor in Council to make regulations adapting, restricting or excluding the application of provisions of the Immigration and Refugee Protection Act and that other Canadian legislation in preclearance areas and preclearance perimeters;

(c) prevents, as required under the Agreement, the exercise of powers of Canadian officers under Canadian law with respect to questioning or interrogation, examination, search, seizure, forfeiture, detention and arrest in preclearance areas and preclearance perimeters, as similar powers will be conferred under the laws of the United States on Canadian officers; 

(d) allows a traveller bound for Canada to withdraw from the preclearance process, unless the traveller is detained under the laws of the United States;

(e) deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada; and

(f) grants the Attorney General of Canada the exclusive authority to commence and conduct a prosecution of a Canadian officer with respect to an act or omission committed in the United States.

Part 3 of the enactment makes related amendments to the Criminal Code to provide United States preclearance officers with an exemption from criminal liability under the Criminal Code and the Firearms Act with respect to the carriage of firearms and other regulated items. It also amends the Criminal Code to provide for a stay of proceedings against a United States preclearance officer when the Government of the United States provides notice under paragraph 14 of Article X of the Agreement.

Part 3.‍1 of the enactment provides for an independent review relating to the administration and operation of the Preclearance Act, 2016.

Part 4 of the enactment makes a consequential amendment to the Customs Act, repeals the Preclearance Act and contains the coming-into-force provision.

Elsewhere

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

Votes

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

Second ReadingPreclearance Act, 2016Government Orders

March 6th, 2017 / 1:50 p.m.
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Conservative

Rachael Harder Conservative Lethbridge, AB

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am going to stop there.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:10 p.m.
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Conservative

Rachael Harder Conservative Lethbridge, AB

Mr. Speaker, to be completely clear, Canadian criminal law is the only law that applies in these pre-clearance zones that we are discussing. The only power that American agents have that comes from the United States is the ability to deny entry to the United States or to fine someone for attempting to bring a banned item into the U.S. Travellers have the right to leave the pre-clearance area at any time should they choose to do so, unless, of course, the border agent believes they have committed a crime under Canadian law. In that case, the agent can detain them until they are turned over to Canadian authorities. Once again, I stress that it is Canadian authorities who will investigate if the law has been broken, and that will be according to Canadian law.

Any piece of legislation can always be improved through rigorous scrutiny at the committee stage. I know there are probably still some minute concerns with regard to this piece of legislation. However, I believe that these details should be explored by the committee and are not fatal to this legislation passing at the second reading stage. This is why I am comfortable in supporting this piece of legislation at this time.

Nevertheless, I am concerned with the lack of priority that the Liberals have placed on this legislation. The previous Conservative government negotiated with the United States for several years, and a final agreement was signed in March of 2015. It took the Liberals more than a year to come out with the enabling legislation for the agreement that we are discussing today. Since the introduction of this bill in June of last year, it has sat on the books waiting to be brought forward. That is a long time.

As I mentioned previously, the United States Congress and Senate, following a particularly divisive election, I might add, managed to pass the American version of this legislation before Christmas. That was two months before the Liberals even brought this bill to the floor for us to begin discussing it. That seems like an unnecessary delay.

For Quebec's international airport and Toronto's city airport, as well as the Montréal Central station, and the Rocky Mountaineer train between Vancouver and Seattle, passage of this legislation would enable pre-clearance, thus making transit through these facilities more convenient and accessible to passengers. Given the importance of Canadian exports to the United States, one is left to wonder why this has not been given greater priority by the Liberal government.

In conclusion, I am pleased to support this piece of legislation today, and I encourage all members of the House to speak in support of and to vote in favour of this legislation.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:10 p.m.
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NDP

Robert Aubin NDP Trois-Rivières, QC

Mr. Speaker, I listened carefully to what my colleague had to say. I agree with her when she says that some bills can be improved in committee following second reading. It remains to be seen how many amendments the government will be open to.

However, the thing I am wondering about the most is why the government is moving so fast, when we learned this morning that only 18 members have had the opportunity to speak to this bill. If we count those who speak today, approximately 30 members will have had the chance to speak to this bill, which is not even 10% of members. I would like to hear what my colleague has to say about that.

Does she not believe that the government is undermining democracy in the House by moving a time allocation motion so quickly?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:15 p.m.
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Conservative

Rachael Harder Conservative Lethbridge, AB

Mr. Speaker, the hon. member's question has less to do with the piece of legislation in front of us and far more to do with the procedures of the House.

The Liberals have been known for moving what is called time allocation in this place, which forces us into a premature decision. It forces the debate to move at a pace that is unnecessary, disallows members in the House having their opinions made known in speaking on these important pieces of legislation that come before the House. That was in fact done in this place today, and has been done many times in the past. It taints democracy. It prevents us from being able to bring our views to the table and speaking on behalf of our constituents, which is what this place is meant for.

With regard to this piece of legislation and the moving of time allocation, I do not believe it was in the best interests of the House or the Canadian public.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:15 p.m.
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Winnipeg North Manitoba

Liberal

Kevin Lamoureux LiberalParliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, on the one hand the member says that the government is not moving quickly enough, and on the other hand she says that we should allow more time for debate on the issue.

We can look at time allocation as a tool for government to get legislation through the House. The Conservatives seem to want to support this legislation. The member asked why the government did not bring in the bill earlier. The government does have a very finite amount of time to get substantial pieces of legislation through the House.

Recognizing the importance of this legislation, and recognizing previously debated legislation before the House is also of importance, would the member not agree that the Conservative Party, while it was in government, used time allocation on many more occasions as an effective tool to get legislation through the House? Would the member not agree, as the NDP did on legislation, that there is value to having time allocation? As the member would know, the NDP does not support this legislation, which means we could be spending weeks in ongoing debate. Does the member believe that is in the best interests of Canadians?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:15 p.m.
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Conservative

Rachael Harder Conservative Lethbridge, AB

Mr. Speaker, with regard to the hon. member's question, I have to highlight that the Liberals have had this bill on the table since June. They have waited nearly a year to bring this piece of legislation to the floor and finally allow debate on it. Now the member opposite actually wants to use this dithering as justification for moving time allocation, which is actually closing the debate in this place. That is an unfair allegation by the member across the floor.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:15 p.m.
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Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I know the hon. member for Lethbridge was not a member of this place in the 41st Parliament, but I can assure her that the predecessor government under Stephen Harper used time allocation consistently and more brutally, but that does not mean I accept that it is good when I see it coming from our Liberal friends. I really do believe it is time to see time allocation go the way of the dodo in this place, unless there is a really clear need.

As the hon. member mentioned, this legislation has been on the docket since June. There is no reason for time allocation at this point before, as the member rightly points out, we have an opportunity to fully debate it. Given that background, I wonder if she would like to agree with me that this bill needs a much more thorough study before it goes to committee.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:15 p.m.
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Conservative

Rachael Harder Conservative Lethbridge, AB

Mr. Speaker, when it comes to talking about legislation versus process in this House, so far I have just spoken with regard to the legislation, and the questions I have been asked have had to do with process in this place. That tells me that perhaps we are a little out of touch with the average Canadian, because I think the average Canadian is far more interested in the legislation that we are discussing and the laws that we are putting in place that are actually going to serve everyday Canadians well. That is the discussion that should be taking place in this House. That is the discussion I want to have today. As far as the process is concerned, that is a discussion we need to have elsewhere.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:20 p.m.
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Liberal

Marwan Tabbara Liberal Kitchener South—Hespeler, ON

Mr. Speaker, I am pleased to join the debate on Bill C-23, an act respecting the pre-clearance of persons and goods in Canada and the United States.

The bill would modify the legislative framework governing pre-clearance operations, the process that allows people travelling from Canada to the U.S. to go through American customs and immigration procedures while still on Canadian soil. This currently exists at eight Canadian airports, and as anyone who has taken advantage of it is aware, it makes travel to the United States much faster and more convenient.

With Bill C-23 in place, it will be possible to expand pre-clearance to new locations and modes of transportation, to implement cargo pre-clearance, and to establish for the first time Canadian pre-clearance operations in the United States. This entails substantial advantages for Canadian travellers and for the Canadian economy.

Certain members have raised concerns about the bill and the new legislative framework it would create. Obviously, that is fine. Each of us has the responsibility as members of Parliament to scrutinize legislation and bring any potential issues to the House's attention. However, we also have the responsibility to avoid exaggerated statements and keep our analysis tethered to the facts. Unfortunately, certain critics of Bill C-23, in particular the NDP candidate for Ottawa—Vanier, have been making, I assume unintentionally, blatantly incorrect assertions about the bill. It is important to set the record straight.

To begin, the candidate has written that Bill C-23 would allow American border security officers to arrest Canadians on Canadian soil. This is completely wrong. Under this legislation, U.S. officers would have no powers of arrest whatsoever. She has also written that Bill C-23 would allow U.S. pre-clearance officers to detain, question, seize property, frisk, strip search, and arrest Canadian citizens on Canadian soil. Once again, the claim about powers of arrest is simply fictional.

As for the first four items in that list, U.S. officers have already had those authorities for decades. In fact, during the debate, NDP members have been calling for the current framework to remain in place. While the current framework empowers U.S. officers to detain, question, seize property, and frisk Canadian citizens on Canadian soil, it seems worth asking whether the NDP candidate in Ottawa—Vanier considers her own party's position in favour of the current pre-clearance arrangement to be an affront to Canadian sovereignty.

With respect to searches, the current framework allows U.S. pre-clearance officers to detain a traveller for the purpose of a search, and requires them to request a Canadian officer to conduct the search. This remains the case in Bill C-23. The only change is that in the exceptional circumstance that a Canadian officer is unavailable, the U.S. officer would be allowed to conduct the search himself or herself. If the NDP considers this a bridge too far, it is free to make that argument, but I think most Canadians would rightly see this as the minor adjustment that it is.

On the subject of travellers who enter a pre-clearance area and then change their mind and decide to withdraw, the NDP's candidate has written that there is no escape. She claims U.S. officers would have all the power they need to hold anyone they want. The reality is that travellers would be free to withdraw from pre-clearance, just as they are now. Bill C-23 merely adds that withdrawing travellers may have to say who they are and why they are leaving in order to guard against people probing the pre-clearance area for security weaknesses. Moreover, it is already the case under existing law. Anyone detained by a U.S. pre-clearance officer must be transferred to Canadian authorities as soon as possible.

She has also written that Bill C-23 would protect U.S. pre-clearance officers who abuse their powers from all prosecution. Once more, this is just plain false. The new pre-clearance agreement with the United States, the one that would be implemented by the bill, would establish a fully reciprocal framework for shared criminal jurisdiction. The U.S. would have primary jurisdiction over most acts committed by its officers in the course of their duties, just as Canada would have primary jurisdiction over most criminal offences committed by our officers in the United States. The host country would retain primary jurisdiction for the most serious offences, as well as any offence committed by an officer while off duty.

With respect to civil action, Bill C-23 maintains the existing rules. As is currently the case, a traveller who feels he or she has been mistreated could not sue an individual officer, but could sue the U.S. government. The same would apply in reverse for Canadian operations on American soil.

In all circumstances, American pre-clearance officers operating in Canada would be required to comply with Canadian law, including the Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act. The more we expand pre-clearance, the more Canadian travellers could undergo U.S. border procedures while protected by Canadian law and the Canadian Constitution. The alternative is for Canadian travellers to be searched and questioned in the United States with none of these safeguards.

Finally, the NDP candidate in Ottawa—Vanier has written that Bill C-23“threatens the right of permanent residents of Canada to be able to return home from abroad”. Once again, this is incorrect. There is absolutely nothing in the bill that would prevent permanent residents from returning to Canada.

Her assertion seems to be a reference to the unlikely confluence of multiple hypotheticals that could result in a person with major admissibility issues having to return to Canada the usual way rather than through pre-clearance. In the event that Canada established pre-clearance operations in the U.S. and in the event that a permanent resident of Canada develops a major admissibility issue, such as committing a serious crime, and in the event that a person is nevertheless allowed into the United States, such a person may have to re-enter Canada through an ordinary port of entry rather than benefiting from pre-clearance, simply because pre-clearance officers may not be equipped to deal with that particular situation. Now the NDP is free to argue that this quadruple hypothetical, whereby a person with a record of serious criminality would be inconvenienced, is a good reason to deny millions of Canadians the advantages of expanded pre-clearance, but I strongly disagree.

That is the heart of the issue here. Do the concerns raised by the NDP justify saying no thanks to the huge upside of pre-clearance expansion? It seems quite clear to me that they do not.

The changes that would be made by Bill C-23 to the legislative framework governing pre-clearance are moderate and reasonable. They would pave the way for substantial benefits, benefits such as reducing congestion to 12 million passengers per year, benefits such as in 2015 when Canada exported over $400 billion in goods and services, some $50 billion in services, to the United States, benefits of 600,000 jobs, benefits of tourism activities. We are talking about reducing hassles and delays for Canadian travellers, making it more convenient for tourists and business travellers to come to Canada, and making it quicker and easier for Canadian businesses to ship goods to and from the United States. Bill C-23 would be good for travellers, good for business, and a major step forward for the Canadian economy.

I invite all hon. members to engage in thoughtful, informed discussion of this legislation both today and hopefully at committee. I certainly intend to support the bill.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:30 p.m.
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Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Mr. Speaker, we agree with the general position on the bill, although it was interesting that the member chose to spend a substantial amount of time refuting a specific NDP candidate's comments in a by-election as opposed to focusing on debate among members here. Of course, I would have thought he would have been more worried about the Conservative candidate in that by-election, but perhaps there are other places to make those points.

With respect to the issue itself, the bill deals with pre-clearance of individuals. It does not speak to the issue of pre-clearance of goods. He spoke about this, so I wonder if he could talk about the importance of moving on that front and share what the government's timetable might be for moving forward on pre-clearance of goods as well.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:30 p.m.
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Liberal

Marwan Tabbara Liberal Kitchener South—Hespeler, ON

Mr. Speaker, in terms of goods, about $400 billion per year in goods and services are transported to the United States. Therefore, instead of having congestion at the border, we need to ensure the flow of our goods, services, and people from here to the United States is quick and easy, and that we can grow both our economies.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:30 p.m.
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NDP

Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC

Mr. Speaker, everyone in the House agrees that the free flow of goods and people across our border with the United States is important. That is why debate on this bill is so important.

Since this debate is happening under a time allocation motion, time is very precious. My colleague should be ashamed of himself for wasting our precious time electioneering.

I was elected to represent the people of Saint-Hyacinth—Bagot, who are very concerned about this bill. On February 19, people came out to join me for coffee and talk about Bill C-23. They have concerns about their rights and respect for the Canadian Charter of Rights and Freedoms.

This is not hypothetical stuff. There have been very real cases of discrimination against transgender people and religious and ethnic discrimination. We must therefore ensure that this bill contains the proper guarantees to make sure people's rights are respected.

All my colleague did in his speech was talk about a by-election. He offered no guarantees regarding rights. What are his thoughts on that?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:30 p.m.
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Liberal

Marwan Tabbara Liberal Kitchener South—Hespeler, ON

Mr. Speaker, the reason I chose to present that in my speech is this. As we all know, as we were all candidates once, we need to ensure that our words and what we voice to the public are true. However, what the candidate in Ottawa—Vanier mentioned was untrue. I was trying to present that so we set the record straight. We know what is true about Bill C-23.

This gives me an opportunity to talk about the economic benefits that so many people have mentioned, such as with the Billy Bishop airport in Toronto, and the economic benefits that Bill C-23 will have with the pre-clearance of a lot of goods, services, and individuals to get across the border that much quicker.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:30 p.m.
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NDP

Niki Ashton NDP Churchill—Keewatinook Aski, MB

Mr. Speaker, I am proud to stand in the House to speak in opposition to Bill C-23, a bill that we in the NDP have been clear that we oppose for a number of very key issues.

Before I begin, I want to reflect on the fact that my colleague from the Liberal Party spent an inordinate amount of time talking about what our friend, who is running for the NDP in the Vanier byelection, said. Emilie Taman is a legal expert who has worked in the area of human rights, whose passion is human rights. She has reflected the true analysis of the bill. The assertions made by my colleague to dispute her comments are false.

I would expect better from a member of the government. Instead of defending his party's positions, he is choosing to attack somebody running in a by-election. That seems beneath the role of somebody who is in government, in the context of serious legislation like this, and really speaks to the fact that the Liberals are playing cynical politics with legislation that we know will have an impact on people's human rights, on their privacy, legislation that certainly does away with potential safeguards that need to be in place.

We support allowing for greater fluidity of movement across the border, but this bill is not about that.

Just in the House today, we were talking about the latest executive order put forward by President Donald Trump and its implications on Canadians and obviously all those affected. Our leader, Tom Mulcair, rose in the House to talk about the latest incident of a Canadian, Manpreet Kooner, a resident of Montreal, born and raised in Canada, who was turned away at the border after six hours of investigation. She is a Canadian citizen.

This is the impact of Trump's America. This is what is happening at our borders right now. This is a major issue of concern for us. I do not know why the Prime Minister did not reflect that concern and denounce, as he should, the position of President Donald Trump. However, this is the reality of today. This is what is happening at our borders today.

Bill C-23 would only exacerbate the kind of disrespect of people's human rights and privacy rights. Instead of protecting Canadians, the Liberal government is trying to change the channel, deflecting to by-elections and not listening to the major concerns many have raised with respect to the legislation.

Why are we as New Democrats opposed to the bill?

First, it would allow for increased powers for U.S. officers on Canadian soil, provisions regarding carrying firearms, strip searches, detention, and interrogation.

A second reason is the lack of provisions protecting the rights and freedoms of transgender people during strip searches.

Another reason is the invasion of privacy on Canadian soil, the search of travellers' electronic devices and access to the digital universe, as it is known.

Another reason we are opposed is because of the additional difficulties for Canadian refugees and permanent residents going through pre-clearance on U.S. soil.

Finally is the ambiguity surrounding compliance with the Canadian Charter of Rights and Freedoms and its extraterritorial application.

These are critical reasons. We are talking about the Charter of Rights and Freedoms, a document of which the Prime Minister has indicated on numerous occasions he is very proud. This legislation allows searches and actions by U.S. border agents that could very well go against what is protected in the Charter of Rights and Freedoms. People are beginning to see through the rhetoric put forward by the government because the actions do not match what is being said.

A number of well-respected individuals who know a great deal about the issue at hand have also shared their concerns and opposition to Bill C-23.

Peter Edelmann, a lawyer and member of the national immigration section of the Canadian Bar Association, said that he was concerned about the application of the Canadian Charter of Rights and Freedoms. He asked how we could be assured that the U.S. CBP pre-clearance officers would be subjected to the charter as the bill did not specify their stature as agents of the state.

Howard Greenberg, an immigration lawyer who has chaired the immigration committee of the Canadian Bar Association and the International Bar Association, was speaking to the power of U.S. officers to detain and question travellers on their reasons for wanting to withdraw from the pre-clearance area. He indicated that at some point it may change from a situation where travellers were simply responding to a question to a situation where they were failing to respond to a direction of an officer. The ambiguity is somewhat dangerous for the traveller.

With respect to the fact that there was a lack of provisions protecting the rights and freedoms of transgender Canadians during potential strip searches, Brielle Beardy-Linklater, a transgendered human rights activist who I have the honour of knowing, indicated that travelling as a transgender person was already complicated. Any additional measures that could bring humiliation might simply stop members of the community from going on vacations or a business trip

Craig Forcese, professor at the Faculty of Law, University of Ottawa, indicated:

Put simply, in Hape, the Supreme Court concluded that the Charter typically does not follow the flag – that is, that it does not generally attach to the extraterritorial conduct of Canadian government actors. The Court did, however, raise caveats to that conclusion. 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.

Alex Neve, secretary general, Amnesty International Canada, a renowned organization when it comes to human rights, was speaking to biometric screening at the border. He indicated:

....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.

We also heard from members of the Muslim community, a community that has been targeted repeatedly over the last number of years, certainly the targeting of which we have seen grow as a result of the politics of hate and racism that the policies of Donald Trump have been encouraging. We must take very seriously the concerns put forward by the Muslim community, particularly as it pertains to the potential for racial profiling and targeting of Muslim Canadians and Muslim travellers.

Safiah Chowdhury, a representative of the Islamic Society of North America, indicated:

Many of us have been arbitrarily questioned for no reason whatsoever, but simply because we are Muslim. We always build in extra time to go to the airport because of the extra screening we expect to go through. 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.

Ms. Chowdhury goes on to explain the concerns that many have raised in the Muslim community.

We do not stand here and take this issue lightly. We feel strongly that the human rights and rights to privacy of Canadians must be protected. We feel strongly that Bill C-23 does not do that. We are very concerned. We do not support the government's insistence on making this about other issues, while disregarding the major gaps that are at play here.

In the age in which we live, where Canadians are being turned back at the border, where they are being disrespected and, frankly, mistreated, this is not the time to pass a bill that would further endanger those travelling and that would certainly put them in a situation where they would be increasingly more vulnerable.

This is why I am proud that we are opposed to Bill C-23. We certainly would like to see the government change course.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:40 p.m.
See context

Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, I would like to extend my best wishes to the hon. member for Churchill—Keewatinook Aski on her announcement we are all expecting this week.

My question is as follows. We have all heard of some very unfortunate and scary incidents happening at border crossings. Pre-clearance means that people do not need to go to a border crossing but can actually go through pre-clearance. I would like to ask the hon. member if she has heard of any incidents that have occurred in pre-clearance, because I have not heard of any. If not, would it not be better for more people to go through pre-clearance as opposed to going to the border?