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

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

The hon. parliamentary secretary has five minutes and 30 seconds remaining for questions and comments.

Questions and comments, the hon. member for Vancouver East.

[Jenny Kwan, NDP, Vancouver East, BC]

Mr. Speaker, it was interesting to note that the member was insinuating that New Democrats somehow did not understand what is contained in Bill C-23.

I wonder whether the member missed the parts where the bill actually increases the powers for U.S. border guards on Canadian soil in provision of carrying firearms, strip-searching, detention, and interrogation.

I wonder if the member missed the lack of provisions protecting the rights and freedoms of transgender persons during strip searches, and I wonder if the member missed the provision in Bill C-23 that provides for the invasion of privacy on Canadian soil with regard to the search of travellers' electronic devices and access to the digital universe.

Last, I would like the member to answer this question. Peter Edelman, who is the lawyer and member of the national immigration section of the Canadian Bar Association, said he is concerned about the application of the Canadian Charter of Rights and Freedoms. He asked how we can be assured that the U.S. CDP's pre-clearance officers will be subjected to the charter. The bill does not specify their status as agents of the state.

I would love to hear from the member in response to the issues I just brought to his attention. Perhaps he has not read the bill.

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

Mr. Speaker, I have gone through the bill's briefing notes and am familiar with the bill itself. I have been through it not on one occasion but one two occasions, where I have had some form of a debriefing of sorts or have had the opportunity to read through it.

That is one of the reasons I posed the comments that I did earlier after the member had spoken. When we listen to New Democrats speak to Bill C-23, we would be given the opinion that the sky is falling and that the infringement of rights will be overwhelming on Canadian citizens and permanent residents whenever they go to a pre-clearance venue. Nothing could be further from the truth.

At the end of the day, we are talking about a pre-clearance. Individuals who are going into the United States can go through the pre-clearance, which then precludes them from having to go through a clearance once they land on American soil. When we are on Canadian soil, the Canadian Charter of Rights applies.

New Democrats seem to be in fear of these bogus phantoms, which I do not believe they have been successful at being able to justify. I do not understand why they are voting against the bill going to committee stage. The information is there. It is within the bill. Canadians and permanent residents do not have anything to fear in regard to their rights. Their rights are in fact being protected.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I noted that the Parliamentary Secretary to the House Leader stressed the importance of the relationship that we have, the co-operation we have, with the United States, and I would totally agree with that. Constituents in my riding who are vacationing in the U.S. have reported back to me that the NDP's defamatory and disrespectful comments about the President of the United States have hit the media and are angering the U.S.

Would the member opposite agree that the NDP's attitude is most unhelpful with one of our most important trading partners?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is important that we recognize that almost $2.5 billion of transactions occur between Canada and the U.S. every day. Millions of Canadians go back and forth between the U.S. and Canada every year. It is important that we recognize that as a special relationship. We have that relationship with no other country, and the U.S. has that relationship with no other country. Canada benefits by it. The U.S. benefits by it. This legislation would further advance that special relationship.

The NDP's approach to the U.S. would have one conclude that it has a strong anti-U.S. element within its caucus. Just listening to the number of questions or presentations, whether on this legislation, other legislation, or question period, one would draw the conclusion that we should be concerned in terms of that anti-American feeling that those members may have given the importance of the U.S. to Canada.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I am pleased to split my time with the member for Peace River—Westlock today.

I rise to speak in support of Bill C-23, for several reasons. I will start with an overview of what the bill would do. I have had a lot of questions in my constituency about the bill.

Bill C-23 seeks to carry out some of the items that were part of the beyond the border plan, which former Prime Minister Harper and former President Obama put together. The agreement was put together to ensure that the long-term, positive relationship Canada and the United States have shared was strengthened over time through certain measures on the integrity of our borders and the management of the flow of traffic.

As my colleagues on the government side have said, it is important to note the volume of trade that occurs across this border on a daily basis. More than $2.5 billion worth of trade in goods, services, vehicles, etc., cross the border on a daily basis. That is why it is very important for us to maintain positive relations with the United States within a framework that respects the sovereignty of both nations and the rule of law in both nations and that also ends up being a positive experience for all involved.

It is important to go back to the beyond the border agreement when looking at the context of the bill. I would encourage anyone who has heard some of the myths about the bill to look at that agreement. Those listening today might look at this as a reaction to Trump or as a result of the Trump presidency, which I will get to later.

The original beyond the border agreement was actually negotiated under the Obama administration. It addressed things like addressing threats early, such as threats against border security, and facilitating trade. It addressed cross-border law enforcement, critical infrastructure, and cybersecurity.

Something worth noting is that there is a formal development and a statement of principle on privacy. Former Prime Minister Harper, as well as former President Obama, actually signed, in 2011, a joint statement on privacy principles. It is worth looking through it, because I know there has been some concern about privacy with regard to the bill. I feel that the principles included in that statement would be upheld by this, including things like maintaining all reasonable efforts to ensure the accuracy of information and the continued right to have access and to request the correction of errors, etc. I encourage people to read this particular piece of information, because it provides good context as to why this particular bill is quite sound.

I want to address some of the issues that have been brought to the attention of my office by some of my constituents. I will refer to some of the statements the public safety minister made in his introductory speech on the bill.

One misconception about the bill that has been put forward is that Canadian citizens would be subject to strip searches in a manner that they were not before. The current law allows a U.S. pre-clearance officer to conduct a strip search if there are reasonable grounds to suspect that a traveller is hiding something or carrying something dangerous. My colleague from Parry Sound—Muskoka said that should there be a wish to explore what “reasonable grounds” means, we certainly could look at it in committee. For that reason, I support the bill going to the committee stage.

The concept of a strip search certainly is not something anyone is excited about having happen, but it is worth pointing out that current law obligates U.S. officers to request that a Canadian counterpart conduct the search. This would remain the same. The only difference under Bill C-23 is that the U.S. officer could conduct the search if no Canadian officer were available, which would be extremely rare, and any such search would be subject to the same legal and constitutional protections that would apply to a search done by a Canadian officer.

In this very rare moment in the House of Commons, I agree with some of the comments put forward by the parliamentary secretary to the government House leader, in that part of the benefit of the U.S. pre-clearance system is that these searches and these processes would be done on Canadian soil. Therefore, Canadian law and the Charter of Rights and Freedoms would apply to Canadians. To me, this is a win-win.

I am a frequent visitor to the United States of America. My father is an American citizen. I enjoy having pre-clearance. I think this is a piece of legislation that is going to both protect my rights as a citizen of Canada and respect the sovereignty of the United States and its laws. It is going to ensure that the flow of trade, travellers, and goods continues in a positive way.

The Minister of Public Safety said that historical experience over the past 60 years indicates that any conflict in relation to these rules governing searches has “happened exactly zero times”. I think that is important to know. That is a good piece of information.

I am concerned, and certainly there are a lot of people who are concerned right now about some of the changes that have happened under the American administration. I watched a very good interview with officials from the United Nations last night about how, with regard to the safe third country agreement, there have been calls for it to be rescinded. However, the American legal system has not changed overnight. The American asylum system has not changed overnight.

The United States of America is probably one of the most vibrant democracies in the world, with one of the most thriving economies in the world. We are very fortunate to share a border with this country. That does not mean we should not be vigilant in terms of ensuring that Canada's sovereignty is respected, but I really do not see anything in the form or substance of the bill that oversteps that.

Going again through some of the myths about the bill, I know there has been a lot of talk about Canadian citizens being able to be detained by U.S. border officers. The public safety minister stated:

U.S. officers would not have the power to arrest or charge travellers in Canada. Rather, as is currently the case under existing law, a U.S. pre-clearance officer who has reasonable grounds to believe that a traveller has committed an offence must turn the traveller over to Canadian authorities as quickly as possible. With no exceptions, only Canadian authorities would determine whether charges would be laid.

It is very important to note that Canadian law applies in this situation, and at no point in time could the United States all of a sudden supersede our sovereignty and our law in this situation. This is ensuring that our processes are well aligned. Again, I want to emphasize too that there is a choice made by someone who is entering a pre-clearance area or trying to gain entry into the United States. Should there be reasons not to allow people into the United States that they are aware of, that is something they have to be cognizant of when they are choosing to enter another country.

People have written my office to say that under this bill, if they walk into the pre-clearance area, they can no longer choose to leave it. Again, that is a myth. I will have to take the public safety minister's word on this, but I did review the bill. I read the bill the same way he did. He said, “travellers wishing to withdraw from a pre-clearance area...would be entitled to do so, but they would be required to identify themselves and give their reasons for withdrawing”.

The reason given for this change is to ensure that people are not entering the pre-clearance area to case it. I actually agree with this provision. It seems very reasonable. As stated, as the law is written, there would be no ability to simply detain someone ad hoc. People would be able to withdraw, but they would have to give their reasons for doing so.

Arming of officers has also come up. This was the example the minister gave:

...U.S. officers in Canada would only be entitled to carry the same weapons as Canadian border services officers do in the same environment.... because Canadian officers do not generally carry firearms inside airport terminals, U.S. officers would not be authorized to carry firearms there either.

The bill would actually expand the pre-clearance process to a variety of other ports and entry points. This is a great thing. The U.S. pre-clearance system in Canada facilitates the flow of goods and services. Certainly as a traveller with family in the United States, this is something I support.

Again, looking at the broader macroeconomic picture of trade and a continued relationship with one of our major trading partners, this is a fantastic continuation of relationships that have continued over political flavours of administrations. In the United States we have seen that change, but also in Canada.

This is a law that shows the endurance of Canadian–American relations in a positive way.

With that, I support this bill.

[John Oliver, Liberal, Oakville, ON]

Mr. Speaker, I want to thank my colleague for dealing with some of the questions and myths that are circulating. I want to come back to one she mentioned. In my riding of Oakville, the issue of voluntarily withdrawing from the pre-clearance area and the belief that people could be detained and held and put through various searches have come up.

As I believe the member across has said, people would be able to withdraw from the pre-clearance area. The pre-clearance officer would be prohibited from imposing unreasonable delays. However, if the officers suspected that the person was probing to look for weaknesses at the border, they would be able to ask for ID and a reason for the withdrawal. I wonder if the member could elaborate on that point a bit and touch again on some of the myths that are circulating that are not true and that are weakening a very good bill.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, my colleague opposite raises a good point, especially when it comes to this bill and some of the rhetoric, especially around the change of the administration in the United States. In order for Canada and the United States to continue to have a mutually positive trading relationship, we have to focus on facts and not ramp up the rhetoric, when there really is no need to do so. Frankly, it lessens our ability to critically review serious issues when they do arise.

I have read this bill backward and forward, and I listened to the public safety minister's speech. I have spent a lot of time with my colleague from Parry Sound—Muskoka, who is our critic on this file. I followed, when I was in government, the development of the beyond the border agreement. To me, it is very clear that Canadian law supersedes any sort of issue.

I would encourage people who are contacting their MPs on this bill to review some of the speeches of the public safety minister, my colleague from Perry Sound—Muskoka, and some of my other colleagues and actually look at the form and substance of the bill itself. In no way would this give any rights to American border agents that would supersede or remove due process or the rights of Canadian citizens on Canadian soil.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, it is a rare day in the House when we agree with the government, and I would like to congratulate the government for completing some of the hard work that was done previously. I was wondering how this would directly affect my hon. colleague's riding.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, certainly the flow of goods and services between Calgary and ports of entry in the United States is significant. Calgary has always had a strong trading relationship, certainly in the energy sector, the forestry sector, and the agriculture sector. I know that there is quite a bit of traffic. If we think of something as simple as air travel, Calgary International Airport has just expanded, and that really highlights the fact that there has been a significant increase in traffic, both from the United States to Canada and vice versa. Therefore, just in that one little microcosm, this is going to be very important.

I have also been heartened to see more travellers from the United States coming to Calgary of late, specifically with regard to the announcement on the KXL pipeline. In the House of Commons, I would like to congratulate the new American president, President Trump, for making a very good decision on Keystone XL. This is going to be a very positive decision for North American energy security and job creation on both sides of the border.

In closing, if I may, it is important for Canadians, as well as Americans, to look at our relationship as something that is beautiful and pragmatic. It should be managed with respect in terms of looking at the facts contained in the bill rather than with hyperbole.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, the United States is based on the idea that people should be able to pursue life, liberty, and happiness or the enjoyment of their property. I would argue that in Canada it is very similar, if not the exact same.

Our country aligns significantly with our cousin to the south. One of the things that we need in this country is a very thin border with the United States. I can remember crossing back and forth over the American border with no documentation whatsoever. I was a young child back then, so I may not have even had any documentation. I think all my parents needed at that point was a driver's license, and they were across the border. They could come back weeks later, and it was fine.

Now we need to get passports to go to the United States. For me, that has been a significant barrier to going to the United States. I went to the University of the Fraser Valley, in Abbotsford, British Columbia. It is right across the border from Sumas, United States. I boarded in a house within sight of the border. We often crossed the border there.

Since the introduction of passports several years ago, the border lineups have increased dramatically. We see the effects of a thickening border across the country.

This bill works to reduce the thickness of the border. It works to streamline people crossing the border. It also makes it so that people are not running into problems in other countries on their holidays. I have not travelled abroad very often, but on my honeymoon I went to the Middle East and around the Mediterranean. For me, that was always a bit of a worry. We did not get screened and run through the whole border security until we got to the other country. Then, what would happen if we did not have the right documentation or something was out of order? We would have just been shipped back home, and the whole flight and the entire holiday would have been for naught.

The pre-screening, as it has been, and is now being expanded, allows people to have their paperwork checked right here in Canada. If there is in fact something wrong, they can turn around and go home to either get the right documentation or cancel their trip, whatever the case may be. However, they will not be stuck in another country, in limbo, stuck living in airport for an extended period of time.

My riding in northern Alberta, which I like to call the promised land, is a riding that attracts a lot of tourism. One of the things that draws people in is the northern lights. In northern Alberta, the northern lights are spectacular. I would encourage everyone to come and experience the northern lights. During the summer, people will probably not see the northern lights because there is nearly 24 hours of daylight.

The tourism industry is critical to northern Alberta, as it is to all of Canada. I would say that this new bill is going to improve travel to northern Alberta, particularly at a time when the Canadian dollar is worth less than the American dollar. Americans get a discount coming here. For people who are going to go on a holiday and have to choose between Canada and the United States, the Canadian holiday is at a discount. This would really encourage tourism in northern Alberta.

Northern Alberta has some great fishing that brings in a lot of folks from the United States, as well as hunting. I know the guiding and outfitting operations in northern Alberta are extensive. I would encourage anyone who is interested in that to come and check it out. A thinning of the border will make it easier for people travelling to northern Alberta.

In northern Alberta, we have developed some of the most amazing technology and expertise when it comes to oil development. Even in these times of low oil prices, we have been able to transport our technology and expertise around the world.

I have several cousins living in the United States who travel across the border on a regular basis. They have a big oil field company that is now operating all over the world. The ability for them to have the pre-clearance, the NEXUS card, the green card to travel back and forth between Canada and the United States means their quality of life is as good as it has ever been. They are contributing to Canadian society by being able to work around the world, particularly in the United States. They have big operations down in Colorado and up in Alaska. It is allowing them to take knowledge, expertise, and technology that they developed in northern Alberta, and to bring it to other places that can benefit from these innovations, from their expertise, whether that be in Colorado, or up north in Alaska.

It is a good day when the member for Winnipeg North and I can agree on something. It is a rare opportunity. I appreciate us coming together on something like this, and to see them doing the hard work for which we laid the foundation. It is much appreciated. I was not here in the last Parliament, so I cannot take any credit for it, but I am part of the party that did do that hard work. I know my colleague from Foothills was here, and he can probably attest to the great work that was done previously.

The new locations are going to be welcome here in Canada. Coming from northern Alberta, I use the airport in Edmonton, where we have a pre-clearance facility, which I have used. The border security agents who work there are an intimidating bunch, but they typically make our travels through there quick and efficient. I would expect them to be an intimidating bunch. They are there to protect the border. That is their job. I appreciate the fact that we have Canadian border security agents doing that on behalf of all Canadians every day to ensure that Canadians remain safe. That is an important part. They need to be thanked for their hard work today as well.

Nations are decided by fairly arbitrary lines on the landscape, but it does give us a level of security that we need to protect. It also allows us to have jurisdiction that allows us to create the quality of life we have right here in northern Alberta.

With that, I would like to thank the Liberals for doing such great work on the bill. I did have an opportunity to read through it. I have not seen anything that jumped right out at me. I request the NDP to stop saying the sky is falling, and support the bill as well.

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

Mr. Speaker, I agree with my colleague entirely that tourism is an important part of Canada's economy. My family and I grew up in the tourism industry on the Cabot Trail in Nova Scotia.

However, the change in Bill C-23 is worth a critical examination. We need to be very clear that the pre-clearance that has happened to date has not created concern, but this bill adds additional powers to U.S. security officials on Canadian soil. I have not yet heard a single rationale from anyone who supports Bill C-23 as it now stands, unamended. The member will know how much I like the word “amendment”.

The bill, unamended, is not one I can support without what might be described as tweaks or amendments to ensure that anyone attempting to enter the U.S. from Canada in a pre-clearance facility has the absolute right to leave and say, “I'm going back. I'm getting out of this place. I don't want to answer anymore of your questions. Thank you very much.”

That is not clear in Bill C-23, and that is my concern. Why the change? We have had pre-clearance working just fine without Bill C-23. We can expand it to more airports, to train stations, or whatever. Why on earth do we need to give U.S. agents on Canadian soil more powers?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I will confirm that somewhere on the Internet it does say that amendment is the member for Saanich—Gulf Islands's favourite word in this place.

I was reading through the bill earlier and pre-clearance withdrawal seems clearly laid out. However, I will defer to my colleague on some of these things because she is a lawyer and I am not and lawyers typically trip over words that I find quite benign. From my perspective, it seems logically laid out. If at any time an individual wants to leave the area he or she just has to state the reasons and then leave. That to me seems very logical.

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

Mr. Speaker, as the member pointed out, pre-clearance has been taking place for almost six decades and that is a positive thing. Airports in Winnipeg, Halifax, Toronto, Vancouver, Edmonton, and Calgary already have pre-clearance and the economic benefits are overwhelming. A person flying out of Toronto airport, for example, without pre-clearance can fly into 20-some U.S. airports. As a result of pre-clearance, a person can fly into 50 U.S. airports.

Could my colleague across the way reinforce the importance of pre-clearance and the benefits for Canada and the U.S. by expanding it?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I did address this extensively in my speech today. It is what I like to call thinning of the border. Pre-clearance makes it easier to cross back and forth across the border and when it is easier, people do it more often and there are benefits from that.

I will outline my most memorable experience with pre-clearance and it happened when I was on my honeymoon. It was not between our country and the United States but between Greece and Israel. I was on a Greek cruise ship which made port in Israel. Officials came by in the morning asking to see our passports. There was a pre-clearance place on the cruise ship so the border security guards went through our passports right on the ship, while we were cruising. When we arrived at port we had already been pre-cleared and could just walk off the ship right on to our tour bus. That made the entire visiting experience that much better. That also drives tourism. If we had gone through the regular channel, all passengers on the ship would have been required to line up at border security point and it could have taken several hours to get through.