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

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I thank the hon. member for his comments on this, but I simply do not understand his position, and he incorrectly portrays the NDP position. We are not opposed to expanding pre-clearance, we are simply asking the question, when pre-clearance has functioned all this time, without granting what I would call extreme powers to the officials in the United States, why do we need those extra powers? Why do we need to say that American agents can detain Canadians? Why do we need to say that they can carry firearms? This has been working perfectly well without these provisions.

When the member says that they operate under Canadian law, that is simply not true. They do not apply Canadian law. They have no training in Canadian law. They know virtually nothing about the Canadian Charter of Rights and Freedoms. Simply saying that is true does not make it so.

Why do we need these new expanded powers for American officials at the border, especially at a time when gay and lesbian Canadians and Muslim Canadians are having a difficult time getting into the United States?

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, being from a part of our country that relies a great deal on tourism, travel, and trade, with British Columbia abutting Washington State, I talked about our history of 60 years of pre-clearance. This has been a great exercise for both nations to be able to have that travel and trade between our citizens.

We find those U.S. guards do fall under our legal system, our charter, our Bill of Rights, and our Human Rights Act. I am sure the member's experience has been one where the facilitation of being able to cross the border with ease, having that pre-clearance, has allowed for much travel and trade, and is something that we want to expand.

We find with this expansion and the reciprocity that we have with the United States, because they have already moved on their act, we want to allow that to happen so that—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

It is questions and comments. It is not time to make a speech, I am sorry. I am sure that the conversation is quite interesting, but we have to allow other members to ask questions.

Questions and comments, the hon. member for Red Deer—Lacombe.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Madam Speaker, I appreciate the comments from my colleague across the way. It looks like there is going to be a little co-operation in the House on this, given the fact that this legislation goes back a number of years and has crossed many different administrations.

My concern going forward is not necessarily so much in the text of the legislation, although I will have some concerns addressed in my speech in a few minutes, but the apparent disjointedness when it comes to the policies of the U.S. administration versus the new Canadian administration when it comes to marijuana legalization, when it comes to refugees and dealing with cross-border issues, and the implications of Bill C-23 being passed at this time.

We have come to this point because of confidence building measures. We are adding more destinations, more terminals, and more facilities to the list, as the member aptly points out, but at a time when the Canadian policy seems to be completely disjointed from the U.S. policy.

Can he expect, going forward, that an implementation that is based on good faith between two countries will not cause some issues?

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, the member is quite right. Because of our longstanding relationship with the United States, the reciprocity that is within the act that they have passed, and what we are trying to do here, there is a clear understanding of our laws and American laws, and how pre-clearance has benefited both nations.

Canadians who go through pre-clearance are covered under our laws. U.S. law enforcement understand that at the border. This is the way we can now expand on our pre-clearance. This will bring substantial benefit to Canadians to be able to travel and trade in the United States.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, I will be splitting my time with the member for Red Deer—Lacombe.

It is great to speak to Bill C-23, the preclearance act, 2016. It is nice to see that the Liberals are following through on a Conservative initiative, which was to expand pre-clearance. It really is a tribute to the very productive relationship prime minister Stephen Harper had with former president Barack Obama, when they signed the beyond the border agreement. We know Bill C-23 fulfills one of the requirements of that beyond the border agreement.

Already, Canadians have been able to benefit from pre-clearance and facilitate trade, tourism, and the movement of business people back and forth across our great border. We can add an additional number of airports and railway stations beyond the eight airports we currently have in Canada where pre-clearance already takes place.

Last year alone, 12 million Canadians went through pre-clearance when travelling to the United States. This is significant. Our airlines want this. More airports and train stations want to capitalize on this. We look forward to having a fulsome debate on the legislation in the House, but also having appropriate hearings at committee to ensure the bill addresses the needs of all stakeholder groups, that all the concerns regarding some of the extra powers being granted to U.S. border agents at pre-clearance stations are addressed, such as detention authority, and that other concerns around refugees and immigration are thoroughly sought out.

At this stage, the Conservatives will be supporting the bill to get it to committee. It will hear from experts and stakeholder groups, and, ultimately, to see whether amendments are required or whether the bill addresses the concerns being raised.

Currently, Vancouver, Calgary, Edmonton, Winnipeg, Toronto, Ottawa, Montreal, and Halifax airports have already benefited for years from pre-clearance. That goes back to an agreement signed in 2001, the Agreement on Air Transport Preclearance Between the Government of Canada and the Government of the United States. The legislation was updated in 2012. Things continue to change and evolve, so now it is again time to expand, and it will happen in four different parts.

It is important to note that Québec City Jean Lesage International Airport, Billy Bishop Toronto City Airport on the island, Montreal Central Station, and the Rocky Mountaineer will be added to the legislation, all places that can utilize the pre-clearance program. We often talk to stakeholder groups at the airports and train companies to ensure any concerns they have as to costs, because they have to bear out those costs, will be more than compensated for by increasing ticket fares and ensuring they get the extra volume of business by having pre-clearance.

There are four parts to Bill C-23. Part one is United States pre-clearance officers conducting the pre-clearance of Canadian travellers here. Part two would allow Canadian officers in the U.S. to conduct pre-clearance. Part three, which I have heard concerns about from constituents in my riding, is that American border services officers will be given exemptions from criminal liability by an amendment to the Criminal Code. There are concerns around that and how they will use those powers in the pre-clearance areas that will be dedicated to the United States in Canada. Part four would make consequential amendments to the Customs Act and repeal the existing pre-clearance act.

Canadians should remember that we have a special relationship with the United States. Currently only six countries have this pre-clearance arrangement and 15 airports around the world have U.S. border guards conducting pre-clearance in those countries. Out of those 15 airports, eight of them are in Canada.

We do have a special relationship. By expanding this because of the relationship between Canada and the United States, and the negotiations between former prime minister Stephen Harper and former president Barack Obama under the beyond the border initiative, we are moving forward.

I know the Minister of Public Safety has alluded to the fact that this pre-clearance may be expanded to include cargo traffic and shipments of containers and other commodities, so we can move quicker in ensuring that our trade relationship with the United States continues to expand.

As we know, $2.4 billion of goods cross the border between Canada and the United States every day. Canada is the Americans' largest customer, buying over $338 billion worth of goods and services in 2015. That is an amazing number and we have to protect it

For my riding of Selkirk—Interlake—Eastman, Manitoba, the United States is a critical partner. It is critical from the standpoint of moving our goods and services, and of moving vehicles and transportation equipment. Winnipeg has a couple of bus companies that move their buses back and forth over the border all the time. New Flyer Industries actually builds parts of its buses in North Dakota, and parts in Winnipeg. The buses move back and forth over the border numerous times.

We have Versatile tractors and its tractors are in demand in the United States. Plus, we use a lot of minerals and natural resources, chemical products, and electronic equipment that go back and forth all the time.

We can also never forget about the food industry, the beverage industry, and the agriculture industry and how important that trade is to Manitoba and indeed all of Canada.

The pre-clearance of passengers is important to our tourism industry. Over 20,000 jobs in Manitoba are tied to the tourism industry. We are talking about a total of $1.6 billion worth of tourism in Manitoba every year, and 6% of that comes into the Interlake region. People come up for hunting, fishing, and enjoying our beautiful lakes, like Lake Winnipeg and Lake Manitoba. Those visitors come here because it is easy to come and it is affordable. Therefore, 6% of all tourism spending happens in Manitoba and 12% of the visitors come to the Interlake region where I live, and we are very proud of that. It is critical to our economy and to employment opportunities.

As I mentioned earlier, there are concerns about some portions of the bill, including the exemptions being provided to the United States border guards under the Criminal Code. There are some concerns over how Canadians who may enter into a pre-clearance area may have difficulty returning if they change their mind or get rejected by the U.S. border services. Are there proper provisions to deal with things like strip searching? Are there proper refugee protection claims, and for flagpoling, which happens at most border crossing, where permanent residents who need to leave the country to renew their permanent residency can often drive to the border and do what is called flagpoling, where they turn around, come back in, and reapply at the Canadian border office?

That may not be possible through pre-clearance facilities. It needs to be looked at by the committee, and we expect that to happen.

Ultimately, the rights of law-abiding Canadians and the safety of law-abiding Canadians have to be protected under Bill C-23. The one thing we want to see studied at committee is how Bill C-23 will come together with Liberal policies and what has recently happened, such as the legalization of marijuana, which the government is intent on doing.

Matthew Harvey received a lifetime ban from the United States because he admitted to a U.S. border guard that he had smoked pot. If he can get a lifetime ban for that, how much is that going to affect other Canadians who are now going to be facing similar questions, knowing the Liberal government wants to legalize marijuana in this country?

[Lloyd Longfield, Liberal, Guelph, ON]

Madam Speaker, I am from Manitoba as well, which is a great place to travel to. There is a lot of back and forth travel between our countries.

Could the member comment on the advantages of having a quarantine area within our country under Canadian laws should there be any problem versus a quarantine area in the United States if there are problems and how its laws would apply in that case?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, the bill will be critical to trade down the road. It is important to the movement of people between our two great nations, Canada and the United States. Everything we can do to facilitate that is in our best interest.

There is rhetoric about re-opening NAFTA, about which all of us should be concerned. However, this legislation is a signal to the Americans, a signal to the U.S. administration in Washington, that we want to continue to do business, we want to continue those close relationships between Canada and the United States in the best interests of both our countries.

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

Madam Speaker, my colleague, the member for Selkirk—Interlake—Eastman, quite accurately raised the nature of the concerns. I have not heard anyone say that the bill should be defeated, as was suggested by an earlier Liberal speaker. It is a question of getting the balance right and finding ways to protect Canadians, permanent residents in Canada, who find themselves at the border.

We have heard many stories, including some from colleagues in the House, who have been turned back at the U.S. border in ways that were unreasonable and demeaning. We also know that the current approach of the new administration is to talk about extreme vetting without being able to define it. I do not think we have had anyone suggest that we would actually put every U.S. border agent through a law course to understand the Canadian Charter of Rights and Freedoms.

I wonder if my hon. colleague would agree with me that the bill could be more easily strengthened by ensuring every Canadian or current resident has the absolute right to leave the pre-clearance area if they choose to do so.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, one of the questions the government will have to answer when we get the bill to committee is whether the rights of permanent residents, and all Canadians for that matter, will be protected in pre-clearance.

This is where the study will be need to really drill down on the legality on the charter rights of all Canadians, whether they are citizens, landed immigrants or permanent residents, so they can have full access to all charter rights.

This is where it comes down to the exemptions under the Criminal Code being offered to U.S. border agents. We really need to study that in more detail, but overall the bill meets the need of what Canada wants, which is more pre-clearance operations across the country so our airline companies, our railways, those who do business, those who tour around, have the opportunity to leave for more destinations. This is good for Canada and it is good for business with the United States.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, I was really interested to hear that Rocky Mountaineer was one of the pre-clearance opportunities. That is important. Imagine getting on a fantastic touring train and then having to stop for clearance issues. This will make for a much more pleasant and seamless experience.

Does my colleague have anything to add about the importance of the tourist experience?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, Rocky Mountaineer is a Canadian icon. It is a beautiful railway. To make it easier for Americans to come here and for Canadians to go on their spur into the United States from Canada and if we can facilitate that movement of people, will be very beneficially, not just to the company but to all tourism in the region.

A lot of people make that trip on the Rocky Mountaineer right out to Vancouver rather than going on the spur down into the United States. It is a better utilization of the entire company infrastructure, and that will benefit everyone who has any relationship with Rocky Mountaineer.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Madam Speaker, my colleague from Selkirk—Interlake—Eastman mentioned all the opportunities for tourism in his great riding and he talked about hunting and fishing, but he did not mention the Crown Royal plant there. I thought that was what most people went to Gimli for, but perhaps I am giving away my secret travel plans.

All that aside, it is great to see colleagues in the House today having a bit of bipartisan co-operation on a matter as significant as this. This is an issue where most common-sense folks are looking to their parliamentarians, to their elected people, and to the government to do things to make their lives easier.

As members of Parliament we all travel a lot. Some of us travel a lot more than the everyday average Canadian does, but there are lots of Canadians who travel for purposes of work or for leisure on a daily basis. I have seen statistics somewhere that at any point in time there are half a million people in airplanes around the world. It just goes to show the sheer volume and magnitude of the importance of some of these kinds of agreements.

Of course, the arrangement between Canada and the U.S. is just astronomical. We share just under 9,000 kilometres of border with the United States. There are no other two countries in the world that share this kind of an arrangement or have this kind of opportunity. It has been mentioned by many in this House already the enormity and vastness of the trade and the like-mindedness of the cultures. Although we as Canadians like to separate ourselves and remain distinct, and we are, we have far more in common with our American cousins than we have differences, despite some of the differences that we do have.

It is important that we maintain that relationship. It is important because not only is the United States one of our closest friends and allies, it is obviously our closest neighbour and we have to continue to build that trustful relationship. The United States is our best trading and commerce partner. It is not any secret at all that north of 70% of all the goods and services that are exported from Canada go to the United States. We rely on the United States' consumer marketplace in order to keep our economy healthy and strong here at home. One of five or six jobs here in Canada actually depends on our ability to export goods and services, so this is absolutely critical and vital.

While this particular agreement does not deal specifically with cargo, this is the precursor. At a major airport, whether at the Calgary airport, here at the Ottawa airport, Toronto airport, or other major airports, when travelling to the United States, the only pre-clearance that I am aware of and have used is to pre-clear U.S. customs on Canadian soil. For Canadians watching right now and wondering what this debate is about, it is about clearing U.S. customs on Canadian soil and about Canadians clearing Canadian customs on U.S. soil at various points of departure and points of entry. That way, when we land in our respective countries, we are already there and we can just walk straight out the door of the airport or train terminal or whatever it happens to be and go about our business. That is why these agreements are so important.

The impetus for these things started long ago. Various administrations come and go in Canada and the United States. Sometimes there is a thickening of the border and sometimes there is a thinning of the border, but I can go back to the previous prime minister, Stephen Harper, and the agreement that he made with then president Barack Obama, in order to work on some of these initiatives in 2011. I would encourage members of Parliament who have not done so already to get a NEXUS card. I remember when Stockwell Day was here and he was the minister, he did a great job working with U.S. counterparts so that we had that trusted traveller program. That trusted traveller program is absolutely critical for anybody who travels on a regular basis. For people who do not have a NEXUS card, I can assure them that if they get one they will see the immense benefits. That is just one aspect, for those folks watching right now, where they do not need a passport per se. If they are going to the United States on a regular basis, they simply need to get that NEXUS card and for any land or air crossing they can just show their NEXUS card; it is as good as a passport for getting into the United States and getting back home to Canada. The process is sped up because they are trusted travellers going through security and through customs. It is absolutely fantastic. With these kinds of things, we have an opportunity to build upon the trust that we have between our two countries.

Now we come to Bill C-23. The current Liberal government has put this bill forward. The bill has obviously some good intentions in it. I have some concerns, but those are matters for debate. I applaud the government for moving ahead with this. It is important that we facilitate the movement of goods, services, and people back and forth across the borders.

Bill C-23 is about moving people, though, people and the stuff they have with them. This is not actually about moving massive goods and freight and cargo between the borders. This is pre-clearance of individuals and the items they have with them at that particular point in time. It is very important that folks understand what that is.

There are a couple of concerns I have with the legislation. One, as has been brought up by others, is that there seems to be, and I hope that the question that I have will be answered, a Criminal Code exemption for U.S. customs officers in Canada when it comes to basically immunity for any charges under the Criminal Code of Canada. I do not know why we would acquiesce to that request. I can only assume that request came from the U.S. administration. If it was a request that we actually had of the American administration as well, so that there would be reciprocity, so that Canada Border Services agents in the United States working at pre-clearance destinations there would have the same kinds of protection provisions, I suppose I would be okay with that. I need to know if that is actually the case or some American administrators and legislators would be making those decisions down there. I am hoping somebody on the government side can answer that question to make sure that we actually have that reciprocity.

The other concerns that I have go directly to the larger policy issues between the two administrations. We have seen a marked shift, I will call it a bromance for lack of some better terminology. The short-lived friendship between former president Barack Obama and our current Prime Minister of like-minded political ideologies is in contrast I think quite sharply now with the new administration and some of the things that we are seeing from U.S. President Donald Trump.

I am not here to debate the policies of Donald Trump, but suffice it to say that the policies of Donald Trump and the policies that are going to be put forward when it comes to immigration, when it comes to legalization of marijuana, when it comes to dealing with criminals, and so on, are going to be markedly different between the U.S. administration and the Canadian government. These are going to be issues that are going to cause friction. That friction, in most cases, manifests itself at the border. We need to make sure that we are looking after Canadian interests at that border.

I do have concerns when that fellow my colleague from Selkirk—Interlake—Eastman was talking about, Mr. Harvey, admitted or confided truthfully, and we should be truthful when we are talking to a border official, that he was a marijuana user and was put on a lifetime ban from travelling.

That seems to be a bit of a difficult conundrum. If Canada is going to pursue a policy where not only is it decriminalizing, with the legalization of marijuana, but it is going to fly completely in the face of what the U.S. administration policy is going to be there, notwithstanding several states in the United States have legalized marijuana. We are not talking about crossing into Colorado, we are talking about crossing into the United States in a pre-clearance zone in a Canadian airport.

Now imagine a Canadian citizen inside a Canadian airport inside a U.S. pre-clearance zone being basically detained by American administration authorities because he has admitted to a U.S. customs agent that he has legally, after supposedly the law is changed by the current Liberal government, which I am expecting will happen sometime in the near future, said to that U.S. customs official, “Yes, I use marijuana because it's legal in Canada now”. That is a problem because that is illegal or could be deemed illegal or a problem for that Canadian citizen in a Canadian airport in a U.S. pre-clearance area being detained for admitting to doing something that would potentially be completely legal in Canada. This is a problem. This is very much a potential problem. I think Canadians at home watching right now need to know that, whatever legal activities that we do here in Canada that might be different from the policies in the United States, Canadians, especially those still in Canada even though they might be in a U.S. pre-clearance area, should have the full protections of the Canadian Charter of Rights and Freedoms and be able to excuse themselves from that travel and not get themselves into any further predicaments.

When it comes to the issue with refugees, policies that the current federal government is going to have versus what the current administration in the United States has are markedly different. They are night and day different, from the messages that are being sent.

These kinds of issues will cause issues at the border. We are seeing already a migration of people coming across the Canadian border from the United States at non-disclosed or non-border crossing areas. That is in current violation of Canadian legislation. If we have these kinds of grievances and issues where we have differences in domestic policy that affect the thickening of our border, then we need to be sure that in Bill C-23 all the provisions that are there provide the protections that Canadians citizens are going to need.

I will close there. There are concerns about this piece of legislation. However, I do applaud the government for bringing it forward. I hope it will listen to folks at committee, go through the process, and amend the bill if it needs to be amended.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Madam Speaker, in Saskatchewan we have no resources right now to get a NEXUS card. You talked at length about people—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I would remind the member to address the questions to the Chair because I certainly did not talk at length.