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

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Mr. Speaker, I am pleased to continue our second reading debate about Bill C-23, legislation that gives 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 a boon for business, for the economy, and for ordinary travellers. 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 the support of voices of key partners for the expansion that this bill would allow, from business, from chambers of commerce, from the tourism industry, from municipalities, and from governments and ordinary Canadians alike.

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 and travel benefits while protecting Canadian rights and that it is on the right track to continue through the legislative process.

We also heard concerns from some members. Many of these concerns have already been addressed, both during the debate in this 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 the technical briefings provided to parliamentarians last year.

However, to ensure the clarity on some of these issues, I would like to focus my remarks today on two specific topics: travellers' rights and the reciprocity between Canada and the United States.

First, with respect to rights, everyone knows that both Canada and the U.S. set and enforce their own rules with respect to who or what enters their country. For Canadians, undergoing U.S. customs and immigration procedures while still in Canada ensures that Canadian legal and charter standards apply to that process. That is a distinct advantage over entering the United States 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 want to withdraw from a pre-clearance site in Canada and not continue to the U.S., they would be able to do so under Bill C-23, just as they can under the current pre-clearance arrangement. The only adjustment would be that American officials could ask the travellers to identify themselves and give their reason for withdrawing in order to avoid illicit probing of pre-clearance sites.

The alternative is to go to the U.S. and submit to examination by U.S. authorities on U.S. soil. At that point, a traveller cannot withdraw from the process at all because they are already in the United States.

I have heard some members argue that travellers are already protected in this way under the current pre-clearance arrangement and so no change is needed. The problem there is that we only have pre-clearance right now at 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 them. With Bill C-23, we can begin expanding pre-clearance so that more Canadian travellers can enjoy its benefits and protections.

Here is another point about travellers' rights that is important to clarify. U.S. pre-clearance officers would not have the authority to enforce the U.S. criminal laws or make arrests in Canada.

If a U.S. pre-clearance officer has 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, 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 it could apply to Canadians flying out of airports such as Billy Bishop in Toronto or Jean Lesage International Airport in Quebec City, which are not currently covered. It would also be applicable for the first time to Canadians travelling by other modes of transportation, beginning with train routes in Montreal and B.C.

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

Next I would like to address some of the questions we have heard about reciprocity.

It must be stressed that the updated and expanded approach to pre-clearance we are discussing is absolutely and fully reciprocal. There are no authorities conferred on the border officers of one country that would not be conferred on those of the other. Each country retains primary jurisdiction over most criminal offences that might be committed by its officers in the course of their duties, while the host country retains primary jurisdiction for the most serious crimes. As such, fears that the bill constitutes the ceding of our sovereignty are misplaced. Rather, Bill C-23 implements a mutually beneficial agreement that imposes the same obligations and confers 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. 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. That means U.S. officers operating in Canada will have to abide by the charter as will Canadian border officers in the United States.

It cannot be stated enough that more than 400,000 people flow across our border every day. Close to $2.5 billion in two-way trade moves between our countries each and every day. It is 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. That is the backbone of the bill before us today.

The legislation would ensure that more Canadians would have access to the protections provided by pre-clearance, while making cross-border travel and trade easier, more profitable, and more secure.

I encourage all members to support Bill C-23.

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons and Minister of Small Business and Tourism]

Mr. Speaker, this is important legislation and it will benefit many communities across the country. Small businesses in my riding will benefit by being able to pre-clear goods and services.

I would like to hear the member's comments on the tourism industry and the benefits tourists will see with pre-clearance.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Mr. Speaker, the government House leader is keenly interested in tourism and supporting tourism in our country. Tourism alone, including 12.5 million overnight travellers from the U.S., accounted directly for $35.5 billion of Canada's GDP and over 600,000 jobs. It is this pre-clearance that encourages tourism, that makes it easier, and makes those travelling have a pleasant experience. This is absolutely vital to improving tourism and making the travel experience easier and more enjoyable.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, I thank my colleague for her speech on Bill C-23.

I have had an opportunity to speak several times now about the time allocation motions moved by the Liberal government. This is the twelfth time allocation motion, and yet, the discussions on this bill were going very well. A number of my colleagues had an opportunity to discuss this, because this is a bill that we, too, on this side of the House, are very familiar with.

Does my colleague think that rushing the passage of Bill C-23 was the right thing to do?

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Mr. Speaker, I consider the debate that has gone on in the House to be very thorough and has provided an opportunity for many members to engage in this wholesome debate. We do have an agenda where we want to ensure that legislation is carefully considered, and this legislation has been carefully considered.

We have a lot of work to do. Our government wants to provide change. That is what the government was elected to do. In order to do that, we need to ensure we have the time to bring forward all legislation and provide the changes we promised in the election.

My response is, yes, we have had very wholesome debate, over three days of debate, and it has been very worthwhile. We are ready now to move on with the vote on the legislation.

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

Mr. Speaker, it is a pleasure for me to rise today to speak to Bill C-23 and to argue in support of the reasoned amendment by my colleague, the member for Beloeil—Chambly. His amendment instructs the House to decline to give second reading to the bill because of several important reasons, which I will be happy to explore later in my speech.

I also want to note that it is very unfortunate we are conducting this debate today under a time allocation passed by the Liberal government earlier today.

The tone of this debate on the legislation has heated up considerably over the past few days during which it has been debated. In particular, there have been some misleading and grossly exaggerated statements from Liberal members of Parliament. There has been a general mischaracterization of the NDP's concerns, combined with over-the-top and fiercely partisan attacks, which have at times sunk this debate to a new low.

I hope to raise the tone of this debate with reasoned arguments against letting Bill C-23 pass at second reading.

Let me make one point perfectly clear. The New Democrats are in favour of measures that will facilitate fluid movement across the U.S. border, but not at the expense of human rights, respect for privacy of Canadians, and Canada's sovereignty.

I support pre-clearance as it currently operates. In fact, I have used the service several times in my life at the Vancouver International Airport when travelling to the United States, and it certainly works well as it currently exists.

I understand that pre-clearance is an important part of the Canada-U.S. relationship and to the free flow of trade and travellers between our two countries, but the provisions contained in Bill C-23 are too problematic for me to give my support.

Bill C-23 neglects to take into account the climate of uncertainty at the border following the discriminatory policies and executive orders of the Trump administration. Canada and the United States signed the agreement on land, rail, marine, and air transport preclearance on March 16, 2015, under the previous Harper government.

Bill C-23 was introduced by the Minister of Public Safety and Emergency Preparedness on June 17, 2016. There was little fanfare at the time, as Parliament was more consumed by Bill C-14's progress through the Senate, and we were certainly all looking forward to the upcoming visit of then President Obama and his address to the House of Commons, which I think we can all agree was a tremendous speech.

The times have changed dramatically since that time, and they provide an even starker contrast to the reasons why this bill is so problematic. The Liberals are moving ahead with the agreement signed under Obama's presidency as if everything was simply business as usual. However, we must take into account the change in U.S. leadership.

The legislation was problematic before the inauguration of President Trump, but recent discriminatory orders and invasions of privacy now leave no doubt about the potential dangers and abuses that will result from the agreement. This is a president who excels at making statements with no empirical evidence to back them up. The most recent example is his shocking allegation that former President Obama ordered wiretaps on his phone during the election.

This man has little understanding of what a warrant is, of the checks and balances of the United States system, the constitution, and he has undermined the judiciary of the United States on repeated occurrences.

The U.S. customs and border protection agency is the largest federal law enforcement agency of the United States Department of Homeland Security. It is an extremely powerful arm of the executive branch of government, but it is now headed by someone who I do not think is fit for that office.

Agencies take their cue from the people at the top. This is a fact. Bill C-23 is proposing to give more power to foreign agents that are lead by an administration that routinely uses fear, lies, and personal attacks on its political opponents to advance its agenda. I cannot, in good conscience, support such a bill.

The third point I wish to address are the increased powers that Bill C-23 would provide for U.S. officers on Canadian soil, provisions regarding carrying of firearms, the power to conduct strip searches, detention, and interrogation.

In particular, I feel strongly that it is unacceptable to see officers of a foreign country who are in a position of authority bear and ultimately use firearms in the performance of their duties on Canadian soil. As is provided for in the summary of the bill, part 3 of the enactment makes related amendments to the Criminal Code to provide the United States pre-clearance officers with an exemption from criminal liability under the Criminal Code and the Firearms Act with respect to carriage of firearms and other regulated items. Bill C-23 would violate our precious Canadian sovereignty by increasing the powers of American pre-clearance officers on Canadian soil with respect to carrying firearms and by not properly defining a criminal liability framework.

There are those within the Liberal and Conservative ranks who dismiss this concern or see it as simply irrelevant. In fact, repeated speakers from the Liberal Party have used rather poor reasoning, in that U.S. agents would only be granted firearms if their Canadian counterparts were similarly armed in the same area. This sidesteps the issue and avoids the question as to why this measure is necessary.

I fully realize that with the combined Liberal and Conservative support for the bill, it is most definitely going to pass second reading. The troubling thing for me is that not one Liberal or Conservative MP has bothered to raise any concerns about this erosion of Canadian sovereignty.

The Liberals like to call themselves the party of the charter, but not one of them has addressed Canadians' concerns about being interrogated, detained, or turned back at the border based on race, religion, travel history, or birth place, as a result of policies that may contravene the Canadian Charter of Rights and Freedoms. The Liberals have also failed to speak up about the lack of provisions protecting the rights and freedoms of transgendered persons during strip searches, in spite of the government's support for Bill C-16.

The Conservatives like to wrap themselves in the flag, and they talk a good game when it comes to protecting our border and our sovereignty, but not one of them has stood to address the fact that we would be giving more powers to agents of a foreign government on Canadian soil.

The final point I want to make is that Canada Border Services agents and the RCMP are filled with great men and women, who do their job in a most capable way every day. They are required to take the oath of allegiance before they can assume their duties as uniformed officers. Allegiance is given to the crown and other institutions that the sovereign represents within the federal and provincial spheres, including the state, its constitution, and traditions. On the other hand, U.S. customs and border patrol agents give their oath of allegiance to the United States Constitution and promise to faithfully discharge their duties in the office that they are about to enter, which is fully an institution of the United States government. This is the crux of the problem. United States officials operating on Canadian soil owe their allegiance to a foreign government, and yet we are prepared to give them powerful new measures, such as carrying firearms on our sovereign soil.

I think that borders matter and that they certainly need to be treated with respect. Also, sovereignty matters and precedents matter. Therefore, I think this is a slippery slope. If we pass Bill C-23, if we allow agents of a foreign government to operate on our soil in this matter, what more demands will be presented at a future instance from the United States government?

All I ask hon. members to do is pause and think about the wishes of their constituents. Did their constituents send them to this place to pass legislation to give agents of a foreign government the power to carry firearms on Canadian soil? This is a real sticking point for me, and I know from the correspondence that I and many of my colleagues have received that this is a major concern. We will certainly be raising it at every opportunity that we can.

[Kate Young, Liberal, Parliamentary Secretary for Science]

Mr. Speaker, does the member not agree that it is better for Canadians to be questioned on Canadian soil than on American soil?

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

Mr. Speaker, at the beginning of my speech, I said that New Democrats support pre-clearance. We know that eight Canadian airports currently have pre-clearance operations, and, as I stated in my speech, I have used them. Having the ability to be pre-cleared on Canadian soil is a good thing, but this bill goes beyond that. If we were simply expanding the service to include other airports without all of the powers that the United States is demanding, we would look at that in a favourable light.

The member across the way has failed to address the concerns I presented in my speech, and indeed no member of Parliament on the Liberal side has addressed my concerns about U.S. agents carrying firearms. I would love to hear a plausible explanation as to why that is necessary. I am still waiting after an entire day's debate.

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I thank my hon. colleague for his excellent speech.

He said that a number of improvements still need to be made, because several concerns are still being raised. The problem we have with the Liberal government is that we are having a hard time trusting it when it comes to committee work.

We saw some concrete examples just recently. For instance, the government completely ignored the results of all the hard work done by the committee that was examining electoral reform. It also ignored the work of another committee that was studying a bill on health.

How could we possibly trust this government, especially after it imposed a time allocation motion on this bill today? It is limiting debate as well as the work we can do in the House of Commons to improve the bill and better understand it.

After so many examples to the contrary, can we really trust the government when it says that the bill will be improved upon in committee?

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

Mr. Speaker, my colleague from Drummond raises an excellent point. Let us go through the examples.

We can look at the clear recommendation that was made by the committee on electoral reform. We can look at the clear recommendation that was made by the Standing Committee on Justice and Human Rights on Bill C-201. We can look at the clear recommendations that were made by the public safety committee with respect to Bill C-22. In each one of those instances, the committee did its due diligence, listened to the experts, and presented its recommendations to the House, only to have the government completely ignore the evidence and recommendations and proceed along a predetermined path.

Therefore, my friend raises a valid concern. In every instance, the Liberals tell us to trust in the committee process. I have trust in it, but I have no trust in the government following the recommendations and hard work that those committees do on behalf of the House.

[Marc Garneau, Liberal, Minister of Transport]

Mr. Speaker, I want to ask the member if he is clear on the notion that U.S. customs officers in airport terminals will not be carrying weapons. They must comply with the same rules as the host nation, and customs agents in Canada do not carry weapons. I want to make sure that he understands that. I would like to hear if he does.

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

Mr. Speaker, in response to the minister, I am absolutely aware of that fact, and nowhere in my speech did I make that allegation. What I was pointing to—

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

You did.

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

No, I simply did not. What I was pointing to was part 3 of the bill, which gives U.S. customs officials the power to carry firearms if Canadian officials carry firearms. My question with regard to this specific provision was why it is necessary. Why are the Liberals ceding our sovereignty to U.S. agents? Why are they writing it into the bill?

[Some hon. members]

Oh, oh!