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 June 22, 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.

Preclearance Act, 2016Government Orders

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

Niki Ashton NDP Churchill—Keewatinook Aski, MB

Mr. Speaker, as I indicated in my speech, we certainly know from a number of human rights advocates, representatives of the Muslim community in Canada, and transgender activists that what is in Bill C-23 leaves a tremendous gap and puts at risk respect for human rights, the Charter of Rights, and Canadians' privacy rights as they pertain to procedures conducted by U.S. border officials.

We are living in an unprecedented time. I was blown away by the fact that a Montreal resident, a Canadian citizen, born and raised in Canada, Ms. Manpreet Kooner, was turned away at the border after six hours of being investigated. This is not the time to conduct ourselves as though nothing has changed. Clearly, the government has not caught on to that. This is the time to ensure that what we are doing is protecting Canadians' human rights, protecting their right to privacy, and standing up for the charter.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:45 p.m.
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Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Mr. Speaker, I certainly agree that the House is not the place to be waging a by-election campaign, as she referred to at the beginning of her remarks.

I have a question, though, for the member with respect to the issue of U.S. border guards. Of course, Canadians who choose to travel to the U.S. are well aware of the questions that may exist, but a person who makes a choice to travel to the United States is making that choice and will either be screened in the United States or through pre-clearance in Canada. A person involved in pre-clearance does have the opportunity to leave eventually. This legislation would provide for limited detainment of that person for a period of time.

It is important for the NDP to acknowledge as well that although there are legitimate concerns, and I have expressed some of those concerns myself, about actions taken by the Trump administration, at the end of the day, the United States is a country with rule of law and strong institutions where people can bring those issues up through the American system. Those who choose to go to the United States are, in some sense, putting their faith in that system.

Does the member not acknowledge that, therefore, there is some degree of perspective needed, perhaps, and that again, pre-clearance is a better option compared to some of the alternatives?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:45 p.m.
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NDP

Niki Ashton NDP Churchill—Keewatinook Aski, MB

Mr. Speaker, I am happy to agree on his initial point that the House is not the place to discuss by-elections, but I will say that it is perhaps an indication that the Liberals are considering the NDP candidate a threat in that election. We have certainly taken note.

Back to the topic at hand, what is clear, as has been pointed out, is that we are living in an unprecedented time. We are very concerned about what is happening day in and day out at the border. New Democrats are certainly in support of more fluid movement, but given what has been happening, and given the potential for Canadians' human rights and the right to privacy to not be protected, it is simply not something we can support. We are concerned that the government seems to be deflecting from this point or changing the channel. We believe that this is far too serious a point to ignore, and that is why we stand in opposition to Bill C-23.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:45 p.m.
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Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Mr. Speaker, I am pleased to continue our second reading debate on Bill C-23, the legislation that would give us the opportunity to provide faster, charter-protected travel for Canadians. These crucial updates to the pre-clearance framework would enhance security, improve cross-border flow, and produce substantial economic and travel benefits for Canadians.

We have already benefited from over six decades of successful pre-clearance. It has been beneficial for businesses, for the economy, and for the ordinary traveller. We are now in a position to implement an agreement with the United States that would make these advantages available to more Canadians in more parts of the country.

We have heard supportive voices for the expansion of this bill from business, from chambers of commerce, from the tourism industry, from municipalities, from other levels of government, and from ordinary Canadians. Most recently, before we adjourned last week to spend time in our ridings, we heard from many members of this House that Bill C-23 would bring economic benefits and ease travel restrictions while protecting Canadian rights. It is on this note that we think we are on the right track to continue the legislative process.

However, we have also heard concerns from some members. Many of these concerns have already been addressed, both during debate in the chamber and through the technical briefing provided to journalists last week by Public Safety Canada and the Canada Border Services Agency, and live-streamed by the media. This was on top of technical briefings provided to parliamentarians last year. However, to ensure that there is clarity on some of these issues, I would like to focus my remarks today on two specific topics: travellers' rights and reciprocity between Canada and the United States.

First, on rights, we all know that both Canada and the U.S. set and enforce their own rules with respect to who or what enters their countries. However, for Canadians undergoing U.S. customs and immigration procedures while still in Canada, Bill C-23 would ensure that Canadian legal and charter standards would apply to that process. This is a distinct advantage over entering the United States at a border through a regular port of entry inside U.S. territory, where Canadian charter standards do not apply to the conduct of U.S. officers.

Let us take the example of withdrawal. If travellers wanted to withdraw from a pre-clearance site in Canada and not continue on to the U.S., they would be able to do so under Bill C-23, just as they can under the current pre-clearance agreement. The only adjustment here is that American officials could ask travellers to identify themselves and give their reasons for withdrawing. This is to avoid illicit probing of pre-clearance sites. The alternative would be to go to the United States and submit to examination by the U.S. authorities on U.S. soil. At that point, it would not be possible to withdraw from the process at all, because the person would already be in the United States.

I have heard some members argue that travellers are already protected under the current pre-clearance arrangement, and so no change is needed. The problem is that we have pre-clearance right now at only eight airports in Canada. If people are travelling from anywhere else, the protection of undergoing U.S. border procedures in Canada and therefore having the right to withdraw is not available to these people. With Bill C-23, we could begin expanding pre-clearance so that more Canadian travellers could enjoy the benefits and protections.

Another point that needs to be clarified regarding travellers' rights is that U.S. pre-clearance officers would not have the authority to enforce U.S. criminal law or make arrests in Canada. If U.S. pre-clearance officers have reasonable grounds to believe that a traveller has committed an offence under Canadian law, they can detain that traveller without making an arrest, but only in order to transfer the person to Canadian authorities right away. This is not new. Rather, it is part of the existing pre-clearance framework that has been in place since 1999.

In other words, contrary to what has been speculated, there is no compromise here on rights and values. On the contrary, Bill C-23 would expand the protective umbrella of the Canadian Charter of Rights and Freedoms so that it can apply to Canadians flying out of airports such as Billy Bishop and the Jean Lesage airport in Quebec City. They are not currently covered. It would also be applicable for the first time to Canadians travelling using other modes of transportation, beginning with train routes in Montreal and British Columbia.

Canadians expect us to make sure that their rights and values, and the protections afforded by the charter, our Bill of Rights, and the Canadian Human Rights Act, are front and centre in all legislation we consider in this House. By making charter protections more widely available, Bill C-23 is a step forward for the rights of Canadian travellers.

The second issue I would like to address concerns the question of reciprocity. It must be stressed that the updated and expanded approach to pre-clearance being discussed here would be absolutely and fully reciprocal. There would be no authorities conferred on the border officers of one country that would not be conferred on those of the other.

Each country, as well, would retain primary jurisdiction over most criminal offences that might be committed by an officer in the course of his or her duties, while the host country would retain primary jurisdiction for the most serious crimes. As such, fears that this bill constitutes the ceding of our sovereignty are misplaced. Rather, Bill C-23 would implement a mutually beneficial agreement that would impose the same obligations and confer the same authorities on both parties.

The bill would improve safety and security for both countries. It would make travel and trade more efficient and expeditious. Also, as is clearly laid out in article II of the agreement with the United States, it would ensure that each county's laws and constitutions would apply to all pre-clearance operations. This means that U.S. officers operating in Canada would have to abide by the charter, as would Canadian border officers in the United States.

I cannot reiterate enough that more than 400,000 people flow across the border every day. There is close to $2.5 billion in two-way trade that moves between our two countries each and every day. It is therefore mutually beneficial for both countries to build on the success of existing pre-clearance operations while simultaneously protecting, even enhancing, the rights of Canadian travellers. This is the backbone of the bill before us today.

I encourage all members to support Bill C-23.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:55 p.m.
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NDP

Robert Aubin NDP Trois-Rivières, QC

Mr. Speaker, as a preamble to my question, I would like to reference something on the U.S. Customs and Border Protection website regarding search procedures for transgendered people. It states that, if the person being searched has undergone sex reassignment surgery, the individual's current sex will determine whether the search is conducted by a male or female customs and border services officer. This suggests that, if the individual has not undergone surgery, this right will not be recognized.

I could give many examples, but since we do not have a lot of time, this is simply one example that tells me that not all rights guaranteed by the Canadian Charter of Rights and Freedoms have been taken into account in the new agreement that the Liberals want to bring in.

Can my esteemed colleague assure me that all measures in this new agreement will guarantee the same rights that are protected by our Charter of Rights and Freedoms?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:55 p.m.
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Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Mr. Speaker, as MPs, we see a lot of bills come before us, and not all bills are comprehensive or totally perfect. It is our job as MPs to debate the issues and to bring them forward to committee. It is at committee where this bill will be very well debated and looked at thoroughly. Any questions or concerns people have can be raised at committee. They can bring in witnesses and the right people.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 3:55 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Mr. Speaker, I will make a quick response to the comment that was just made about the work of committees. A lot of experts came before committee with respect to Bill S-201 and Bill C-22 and made recommendations that were unanimously adopted by that committee, only to have the government completely ignore and refute those recommendations.

In asking us to put faith in the committee process and in the government respecting that process, I am sorry to say that my patience with that line of argument is wearing very thin at the moment.

My question to the member is about the part of the bill that gives authorization to U.S. customs officials to carry firearms on Canadian soil. I have yet to hear a convincing argument from the Liberal benches as to why this is necessary. Why, when we have a perfectly capable police force in Canada, would we cede this kind of sovereignty to U.S. agents on Canadian soil?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4 p.m.
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Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Mr. Speaker, things are not always perfect in a democracy, so therefore whether the committee process will work or will not work, it is important to note that we can vote bills down in the House or eliminate them.

With regard to U.S. border guards carrying arms, whatever the Canadians can do, the U.S. border guards can do at the pre-clearance point. Reciprocity is contained within the bill. If there are any clauses that make no sense to committee members, they should have the chance to review and refuse or eliminate those clauses.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4 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, this is a good news bill. We are talking about pre-clearance for many Canadians travelling to the U.S.

My question is about recognizing the economic value, and I will use the Lester Pearson airport as an excellent example. Virtually half of U.S. airports do not have U.S. customs officers, and this prevents aircraft from flying into those jurisdictions. That is why, over the years, pre-clearance has been seen as a positive thing that both Canada and the U.S. benefit from.

I am wondering if my colleague could comment on the benefits that Canadians get as a result of pre-clearance.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4 p.m.
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Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

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 U.S.

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, most importantly, 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, the trucking industry, and by government partners, among others. The mayor of Quebec City, for example, has called it a great victory.

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. Expansion to new locations and modes of travel require an agreement with the United States. That agreement has been reached, and the U.S. has passed the legislation needed for implementation in their country with unanimous support in both houses of Congress. That is no small feat. 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 pre-clearance framework. According to the member for Vancouver East, the current pre-clearance system is working well. Similarly, the member for Beloeil—Chambly has said that the current pre-clearance system works well. The member for Esquimalt—Saanich—Sooke has said that pre-clearance works just fine. To quote the member for Windsor—Tecumseh, “I understand about pre-clearance. It is working. It exists today.”

Yes, it does, and I agree that the current framework, which has been in place since 1999, has served Canada well. The NDP support for it is interesting, because in 1999 when this framework was proposed and debated, that party had a very different take. At the time, the then member for Winnipeg—Transcona said that he had concerns about the bill having to do with privacy protection, with the power of U.S. authorities to detain people, and concerns that this would be a further application of U.S. law on Canadian soil.

The then member for Winnipeg Centre said that 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 to stop people from leaving. He argued that by passing the bill, the House was granting foreign 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 MPs in favour of the bill of being ready to trample on Canadian sovereignty. He said, and this is my favourite part, 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 to 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. However, here we are again. A new pre-clearance framework is being proposed, and, once more, the NDP is sounding the alarm about perceived threats to Canadian sovereignty and perceived powers granted to foreign officers. It would not surprise me one bit if 20 years from now New Democrats leap to the defence of Bill C-23 while insisting that any further changes would mark the demise of the sovereignty of Canada.

My point is, let us be reasonable. In most respects, Bill C-23 is very similar to the current framework. Regarding 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. 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.

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. However, 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, not only would it 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.

With that in mind, I encourage all hon. members to give the bill their full support.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4:05 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Mr. Speaker, it is true that political parties and the NDP sometimes change their position. It sometimes takes decades. That stands in stark contrast to the Liberal Party, which changes its direction from one election to when it turns into government.

That aside, I would be curious to hear about the hon. member's views on a particular section of the bill which gives the powers of U.S. agents on Canadian soil the right to carry firearms. I do not see why this is necessary on Canadian soil. Is it the fact that the Liberal government has so little faith in our own police forces that it is willing to cede our sovereignty in this area? I have yet to hear a plausible explanation as to why this particular provision in the bill is necessary. I would be eternally grateful to the member if he could shed some light on that.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4:10 p.m.
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Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Mr. Speaker, given that party's propensity to change its mind, I am not sure if his gratitude will actually be eternal if he offers it to me.

I think a lot has been made about the firearms component of the bill. Let us be clear. U.S. officers are given no greater power than what Canadian officers already have, so U.S. officers will not be armed in Canadian airports.

However, Canadian officers are already armed at land and sea points of entry. It only stands to reason that U.S. officers will have the same authority and the same powers that Canadian officers do in those situations. Frankly, I do not see why that is a problem that needs any more explanation. They need to be treated the same as Canadian officers doing the same job in the same area. I think that is reasonable.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4:10 p.m.
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Conservative

Randy Hoback Conservative Prince Albert, SK

Mr. Speaker, I listened to my colleague on the trade committee on this file, and I am curious. Looking forward, we do not have cargo included in this piece of legislation. I understand the minister has said to the media that the government will include cargo somewhere in the future.

Can the hon. member give us an idea what that may look like, and roughly the time schedule before we see that before committee?

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4:10 p.m.
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Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Mr. Speaker, I appreciate the hon. member's question, and I also appreciate working with him on the trade committee.

I am not privy to any firm schedule, but I share his enthusiasm for seeing cargo treated in a manner that would make sure that businesses on both sides of the border are able to tap into both markets. It would ensure that small and medium enterprises are able to create the jobs and create the growth that they do for our economy.

I look forward to working with the hon. member to make sure that we can get that framework in place. I share his enthusiasm that sooner is probably better.

Preclearance Act, 2016Government Orders

March 6th, 2017 / 4:10 p.m.
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London West Ontario

Liberal

Kate Young LiberalParliamentary Secretary for Science

Mr. Speaker, I know my hon. colleague and I will agree that a secure, well-functioning border is essential for Canada's economic prosperity. There is no question.

I have to wonder why the opposition is so worried about this pre-clearance. I wonder if the hon. member could tell us what would happen if we did not have the pre-clearance. How would Canadian travellers deal with going across the border?