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

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

Madam Speaker, I know that the minister cannot tell us what she has discussed at the cabinet table. However, could she assure the House that in the agreements passed in the United States as part of the agreement the two countries would have, because there would be legislation, I am sure, appearing in the United States, if there were provisions for U.S. customs officials not to be prosecuted under the Criminal Code, Canada Border Services agents would have that same privilege in the United States?

[Bardish Chagger, Liberal, Waterloo, ON]

Madam Speaker, I appreciate the member's question, because it provides me with the opportunity to remind Canadians that pre-clearance for Canadians would take place on Canadian soil with Canadian laws. That means that U.S. border officials would have to comply with Canadian laws, which would include the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act. Canadians can be assured that it will be in their best interests.

The United States has already passed its portion of this legislation, so it is important that we get this legislation to committee. U.S. officials would comply with their rules on their side.

I myself like to represent Canadians--

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Order. It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Renfrew—Nipissing—Pembroke, National Defence; the hon. member for Selkirk—Interlake—Eastman, Foreign Affairs; the hon. member for Mégantic—L'Érable, Ethics.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, I am pleased to rise in the House today to speak to Bill C-23. I will be splitting my time with the member for Sherwood Park—Fort Saskatchewan.

The previous speaker, the Minister of Small Business and Tourism, made a comment to my good friend and colleague from Peace River—Westlock. She did not just imply, she said that every community in his riding would receive something that would allow them to have a great Canada 150 celebration. I am just waiting breathlessly for all the small municipalities and large ones in my riding, hoping they will get the same kind of treatment.

Bill C-23 is an act respecting the pre-clearance of persons and goods in Canada and the United States. Before I speak on the specifics of the bill, I would like to provide a bit of history and context about how Bill C-23 came to be.

In 2011, then president Barack Obama and then prime minister Stephen Harper announced the United States-Canada joint declaration, “Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness”. This declaration spoke of a shared approach to security in which both countries would work together to address threats within, at, and away from our borders.

Later that year, both governments released the beyond the border action plan, which built upon the initial declaration and implemented many of the items included in the agreement.

It almost goes without saying in this House and across Canada that the United States is Canada's strongest ally and economic partner. We share the longest and most prosperous demilitarized border in the world. In fact, the only thing standing between my riding of Bruce—Grey—Owen Sound and the east coast of Michigan is Lake Huron itself. While agriculture is the biggest industry in my riding, tourism is very close. It is huge. The bill would certainly help every aspect of tourism in my riding and many others.

About 300,000 people and $1.6 billion in goods and services cross our countries' shared border every single day. Over 100 million people live in the Great Lakes and St. Lawrence region alone, and account for about $6 trillion in economic activity.

The beyond the border agreement was negotiated and agreed upon in order to strengthen that special relationship between our two countries. Basically, the beyond the border agreement established a commitment between Canada and the United States to work together to enhance the security of Canadian and American citizens and support the flow of travellers, goods, and services across each other's borders.

As part of the beyond the border agreement, the previous Conservative government signed the agreement on land, rail, marine, and air transport pre-clearance, the LRMA. The LRMA updated the authorities for pre-clearance officers at border crossings to better reflect the current security environment as the previous pre-clearance laws had not been revisited in decades.

Put simply, pre-clearance allows border officers to carry out customs and immigration processes in the other country's territory. This allows border officers to use their time much more efficiently, and keep citizens of both countries safer.

This brings us to the bill. Bill C-23 is the Liberal government's attempt to implement the measures agreed upon in the LRMA. As I have said, the beyond the border agreement between the U.S. and Canada, including the LRMA, is an agreement that I support.

It is very nice to see the Liberals taking advantage of the good work done by the previous Conservative government. On that note, I think we need to really point out that there is a lot of bickering and back and forth goes on in this House, and it is actually nice sometimes to see work continue, even when there is a change of government. I want to thank the government for that.

I want to ensure that this agreement is implemented in a responsible way, though, that respects the rights and liberties of Canadian citizens, travellers, police officers, and CBSA officials. It is for that reason that I look forward to studying Bill C-23 with my colleagues on the Standing Committee on Public Safety and National Security.

I believe that our committee will provide a strong analysis of the bill and recommend amendments where or if necessary to ensure that it adequately reflects the spirit of the 2015 LMRA.

I would like to briefly outline the kinds of questions that need to be answered during the committee's study of Bill C-23.

Currently, there are eight Canadian airports and three terminals designated as pre-clearance and pre-inspection sites. Every year, these Canadian pre-clearance facilities process about 12 million passengers. One of these pre-clearance facilities is the Toronto Pearson International Airport, the fourth largest point of entry into the United States in the world.

This is an airport that I have used many times. Just last fall, I was part of a delegation to Washington, and many of my counterparts from government and opposition went through there. For anybody who went through this pre-clearance, there is no doubt about it, this is a huge advantage that speeds things up at both ends of the trip.

Bill C-23 would authorize the Minister of Public Safety to designate pre-clearance areas and pre-clearance perimeters in Canada in which pre-clearance may take place. However, before the bill advances, I would like to know whether the minister has already decided whether to designate new airports, terminals, land and rail services as pre-clearance areas. This is something we do not know yet. If he has, where will these new pre-clearance sites be introduced? If the minister has already made these decisions, he should inform the House. I also hope that he has consulted with those communities to ensure a smooth transition.

On that note, we all know that the unsafe injection sites were put into communities without any consultation or input. We just hope that the same kind of thing does not happen here.

Bill C-23 would provide the United States pre-clearance officers with powers to facilitate pre-clearance in Canada. I absolutely believe that this is a function that would contribute positively to our safety and security if implemented properly.

The bill gets into the specifics of what those American pre-clearance officers can and cannot do, and I believe our committee would have a great opportunity to ensure that those specifics are outlined clearly and directly. We have to make sure that we know exactly what these pre-clearance officials would have the power to do. I look forward to hearing from relevant expert witnesses on the matter.

Furthermore, Bill C-23 would authorize Canadian police officers and officers of the CBSA to assist United States pre-clearance officers in the exercise of their powers and performance of their duties and functions. Again, I believe that this new function is a critical component of the 2015 LMRA and Bill C-23. However, the government needs to grant these new powers responsibly. We must ensure that CBSA officials and police officers are confident that they not be asked to assist in exercises that they would not otherwise perform. Since 2015, law enforcement at the border has evolved considerably, and it is the government's responsibility to make sure that CBSA officials are comfortable complying with new duties.

It is also important to remember that the LMRA is an agreement between the United States and Canada. Provisions of Bill C-23 are applicable only if the United States passes the same legislation in both its Senate and House of Representatives.

According to the beyond the border agreement, the American equivalent of Bill C-23 has been promised to be passed in conjunction with Bill C-23. I know that the bill has been introduced in the American legislature, but given the new American administration, where does it stand? I am not sure. If the government is going to proceed with Bill C-23, we must have assurances that its American equivalent is safe and will pass the American legislature, and not be the target of any effort to rescind or weaken it.

As I said earlier, these are just some of the questions that I hope to ask during the public safety and national security committee's study. Given that the initial agreement that led to this bill was a product of the previous government, it should be a surprise to nobody that the bill has potential.

I strongly believe that a thorough study of the bill by the public safety committee would ensure that it contributes positively to the safety and security of all Canadians, as well as to the economic partnership and allegiance between our great countries.

I will be glad to take questions.

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

Madam Speaker, I appreciate many of the words the member across the way has put on the record. He emphasized how important it is that the committee have the opportunity to sit down and look through the legislation. If he listened to what the government House leader was saying earlier this afternoon, he will find that the government House leader was really encouraging that the bill go to committee.

It seems to me that this is a bill that, ultimately, the vast majority of Canadians would support. There is that special relationship between Canada and the U.S. and this is one of the ways in which we could take advantage of that special relationship, where both nations would benefit.

I wonder if my colleague from across the way would talk about the importance of the committee and, ultimately, getting it to committee given the fact that, from what I understand, the U.S. has been dealing with this legislation?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, my colleague is absolutely right. Getting this to committee and having a thorough observation of it is the right way to go. However, there is a bit of a history here. When bills come before my committee, that is the only one I can speak to, there is a real rush job. I hope that is not the case here, and that government allows the committee to take the necessary time it takes to go through it.

As I, and many others, have said in the House today, I support this bill in principle. I think it is the right thing.

A lot of Canadians, I do not believe, understand. If they have not gone through the pre-clearance they do not understand, and that is fair. However, for anybody who has, and I believe for any Canadians who actually investigate and see what this is all about, I would agree with the member that they would absolutely approve of this.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am sure my hon. colleague has listened to some of the many concerns expressed by the New Democrats about this bill; one of them being that, at present, when a Canadian seeking to enter the United States is being questioned by U.S. border authorities, if at any time the Canadian citizen decides that he or she does not want to enter the U.S. because they are not comfortable with the questioning or providing information they feel violates their privacy, they can turn around and choose not to enter the U.S.

However, under this legislation, it appears that because they will be under the control of the U.S. border authorities, Canadian citizens will not have that right to immediately break the conversation and choose not to enter the United States.

I wonder if he has any concerns, in that regard, about this bill?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, no, I do not have the same concerns. It just comes across as more of the NDP “the sky is falling” type of rhetoric. However, with regard to the comment about whether Canadians should be able to turn around and decide that rather than leave that area and go on to the U.S., if they are uncomfortable, of course, they should not have to. They should be able to stay here. I see nothing in the bill that would say otherwise. While we are on the committee and going over it, I will certainly be watching that.

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

Madam Speaker, although not directly related to the bill, I notice it has come up in discussion, both by this member and previously in question period. I just want to talk about Canada 150 and the plans for across Canada. I heard the member talking about wanting to see something in his riding, and of course we are still waiting for some great support in ours. Hopefully, we will get some answers soon on that.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, I mentioned that at the start because the minister, our good friend across the way, indicated to the member for Peace River—Westlock that every community in his riding would receive some kind of Canada 150. I certainly want that. I am sure every member here does. We will hold the minister to that. As I said, we wait with bated breath for that funding to come through.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I do not know if it has been mentioned in the House yet, but I think we are all very excited about the announcement today that NASA has discovered seven new planets, some of which may be inhabitable.

I know many people are thinking about this and the scientific and research opportunities. I know the Prime Minister is probably thinking about the vacation opportunities associated with that. However, this time he will have to clear it with the Ethics Commissioner first.

Speaking of vacations, we have a bill in front of us that deals with pre-clearance. It is no surprise that this is a big priority for the Prime Minister.

This is important legislation, one that we are pleased to support. It will help to facilitate effective travel between Canada and the United States. Obviously we know and understand the importance of the close relationship between our two countries and the impact of facilitating greater exchange, greater travel involving individuals and hopefully, as this framework develops, more effective pre-clearance procedures for goods. We see this as a positive opportunity for enhancing and strengthening that relationship.

We are pleased to join the government in supporting this bill.

I do not want to give the government too much credit, and sometimes I am in danger of doing that, because most of the heavy lifting and the important work was started under the previous government. I will talk to that in a few minutes.

To underline the importance of our relationship with the United States, and other members have mentioned this figure already, $2.4 billion in goods and services are exchanged across the border every day. In the U.S., that relationship is particularly important. It does not necessarily get the same press or play in the American discussion perhaps as it does here, but that economic relationship is very important for the Americans. We are seeing a realization of that, and a lot of advocacy within the United States, as well as by Canada, for maintaining the strength of that relationship between our two countries. Most Canadians are already very well acquainted about the importance of that relationship and the benefits that come from it.

When there is a close relationship with another country, there is a co-operative dimension and there is also a competitive dimension. There is the co-operative dimension in so far as we all prosper together through greater exchange, but there is also a competitive dimension in that we try to attract investment to come to Canada.

A greater facilitation of that relationship through the pre-clearance measures discussed in the bill enhances that co-operation. However, in the midst of that, we need to be mindful of the things we can do which will make Canada more competitive.

The context of the bill is that the former prime minister, Stephen Harper, negotiated a beyond the border agreement with the former president, Barack Obama. This was an important agreement which was designed to facilitate that relationship, facilitate travel, and really the deepening of relationships between the two countries through different kinds of shared procedures. There are different aspects to that beyond the border agreement.

One of the important ones was this pre-clearance measure, which is a commitment as part of that agreement and is now being fulfilled through the legislation. We can very clearly see that this is the implementation of that part of the agreement signed by the previous administrations in both countries.

We are encouraged that the government is at least carrying forward and fully implementing the good work undertaken under the previous government. We really appreciated the importance of that relationship. We appreciated it when it came to the exchange of people and of goods, when it came to security co-operation, and when it came to economic exchange as well.

In addition to what has been said already in the House around the bill, the opening up of pre-clearance is done in the context of this agreement in a reciprocal way. We are facilitating pre-clearance for Canadian travellers going to the United States, but also making it easier for travellers coming the other way.

Canadians will be familiar with the concept of pre-clearance. Every time one travels to the United States by air, one encounters American officials who will do a screening process in Canada rather than on the other side of the border, as happens if one is travelling to certain other countries. That makes travel much easier.

Bill C-23 would open the door through different measures to facilitate that more effectively. It would update the pre-clearance system to ensure that reciprocal exchange would continue. It would reduce the cost associated with crossing the border, and that can have economic as well as cultural benefits. In general, it will facilitate the opportunity for Canadians and Americans who want to travel and visit each other's countries. It makes Canada more competitive, as well, by making it easier for us to attract travellers coming from the United States. These are some of the many advantages associated with the bill.

Those in our party particularly understand the importance of our relationship with the United States, our trading relationship, security relationship, and other aspects to that relationship. We sometimes see that appreciation from the government. Other times and in other ways we do not see appreciation of that.

The Prime Minister was recently in Washington meeting with the new President. However, we note that for the second time, he went to Washington and did not bring along our natural resources minister. Co-operation around supporting our energy sector and finding access to export markets for it is very important. Hopefully, three times is the charm, and the government will finally take seriously its responsibility to promote our energy sector in the context of that relationship.

The failures around softwood lumber are well established. The previous Conservative government was able to get a deal on softwood lumber almost immediately after taking office, because we made it a priority. It does not seem to be a priority for the Liberal government when it comes to resolving it.

Also, I was disappointed that immediately upon the successful election of the new President, the Prime Minister said that it was no problem, that we would renegotiate NAFTA. What we needed to hear were clearer statements and an appreciation of the value of NAFTA for Canadians and a willingness to defend the trade that came with it.

The government should also look at being more supportive of the trans-Pacific partnership. It further opens up trading opportunities throughout the Asia-Pacific region and really solidifies and creates opportunities for deepening the trading relationships that already exist in North America.

I mentioned other forms of co-operation between our two countries. The security co-operation we see through NORAD and NATO is critical for our country's interests. I would argue that NATO is one of, if not the most important force for global peace and stability. Canada needs to make clear arguments about the importance of NATO. It also needs to be willing to make investments in NATO and our military to reflect our obligations to our security commitment. We need to have a long-term plan to get to 2%. In fact, the government's first throne speech talked about creating a leaner military.

I talked about those co-operative aspects and facilitating the partnership. There are also those aspects where we need to think in a little more competitive way. The Americans are reducing their taxes, at least there is an intention to do so, and they are not imposing a carbon tax. The presidential candidate for the Democrats, Hillary Clinton, was not proposing a carbon tax either. What the government is doing by imposing a carbon tax and looking at all kinds of ways of raising taxes and imposing new taxes on Canadians hurts our competitiveness in the context of this relationship.

We know the Canada-U.S. relationship is very important. This bill moves forward in facilitating pre-clearance, and we see that as a positive. However, there are some real gaps in what the government is doing in that relationship. We ask it to do better, to appreciate the importance of co-operation, and take some of those next steps that are needed.

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

Madam Speaker, I am glad to hear the member and the Conservative Party will be supporting the legislation.

At times, we on this side of the House recognize there are a number of actions that we have taken which have come out of some of the earlier beginnings of the Conservative government, and it is important for us to acknowledge that. Traditionally, we have demonstrated the very special relationship between Canada and the U.S., whether with respect to trade or on the issue today. The biggest winner out of all of this is Canada's middle class, and those aspiring to be a part of it. Canadians as a whole will benefit from the pre-clearance.

Could the member expand on some of the economic benefits of the pre-clearance, particularly from a tourism perspective, and how he believes the legislation will enhance that?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I was briefly worried that we might go half an hour without the middle class being mentioned in the chamber.

The bill certainly has a positive impact with respect to all Canadians, however, we can divide them up. It facilitates opportunities for Canadians to travel. It responds to some degree of recognition by the government of the importance of our relationship with the United States.

As I said in my speech, we are supporting the legislation because we feel it is good legislation. However, there are other areas we need to talk about when it comes to that relationship. One is looking at expanding the mechanisms for the pre-clearance of goods and trade. We also need to ensure we are making the investments needed in our armed forces to ensure NATO remains strong, and that there is confidence that everybody is investing the necessary amounts with respect to that. Those are some of the additional things.

However, I am pleased to support the bill.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Madam Speaker, I am proud of our position in the NDP, which stands in firm opposition to Bill C-23. It is not only a reflection of our party principles, we are also echoing the major concerns Canadians are bringing forward with respect to racial profiling and the profiling of trans Canadians, and everyone who is concerned about privacy rights.

Therefore, my question is not only for the Conservatives but it is for the Liberals as well. Given what is in Bill C-23, how can we, in good conscience, accede such power to the Americans rather than stand up for privacy and Canadian human rights?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, perhaps the member has read different legislation than the one I have been looking at. Let us be clear as to what pre-clearance is. It allows for people travelling to the United States to be cleared on the Canadian side of the border before they travel as opposed to the alternative, which is to travel to the United States and be cleared there.

For example, if we were travelling to the United States, we would have to go through a clearance process administered by American authorities. Perhaps the member has some concerns about the way in which that process happens, and she is welcome to raise that. However, I am not sure how that fits into the question of pre-clearance versus the alternative, which is still clearance. It is just a matter of where that happens and how arduous that process is.