Preclearance Act, 2016

An Act respecting the preclearance of persons and goods in Canada and the United States


Ralph Goodale  Liberal


Second reading (Senate), as of June 22, 2017

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This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment implements the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (the Agreement), done at Washington on March 16, 2015, to provide for the preclearance in each country of travellers and goods bound for the other country.

Part 1 of the enactment authorizes United States preclearance officers to conduct preclearance in Canada of travellers and goods bound for the United States and, among other things, it

(a) authorizes a federal Minister to designate preclearance areas and preclearance perimeters in Canada, in which preclearance may take place;

(b) provides United States preclearance officers with powers to facilitate preclearance;

(c) establishes that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;

(d) authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;

(e) allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained under Part 1; and

(f) limits the ability to request the extradition or provisional arrest of a current or former United States preclearance officer.

Part 2 of the enactment provides for the preclearance in the United States, by Canadian officers, of travellers and goods bound for Canada. Among other things, Part 2

(a) specifies how the Immigration and Refugee Protection Act will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters;

(b) authorizes the Governor in Council to make regulations adapting, restricting or excluding the application of provisions of the Immigration and Refugee Protection Act and that other Canadian legislation in preclearance areas and preclearance perimeters;

(c) prevents, as required under the Agreement, the exercise of powers of Canadian officers under Canadian law with respect to questioning or interrogation, examination, search, seizure, forfeiture, detention and arrest in preclearance areas and preclearance perimeters, as similar powers will be conferred under the laws of the United States on Canadian officers; 

(d) allows a traveller bound for Canada to withdraw from the preclearance process, unless the traveller is detained under the laws of the United States;

(e) deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada; and

(f) grants the Attorney General of Canada the exclusive authority to commence and conduct a prosecution of a Canadian officer with respect to an act or omission committed in the United States.

Part 3 of the enactment makes related amendments to the Criminal Code to provide United States preclearance officers with an exemption from criminal liability under the Criminal Code and the Firearms Act with respect to the carriage of firearms and other regulated items. It also amends the Criminal Code to provide for a stay of proceedings against a United States preclearance officer when the Government of the United States provides notice under paragraph 14 of Article X of the Agreement.

Part 3.‍1 of the enactment provides for an independent review relating to the administration and operation of the Preclearance Act, 2016.

Part 4 of the enactment makes a consequential amendment to the Customs Act, repeals the Preclearance Act and contains the coming-into-force provision.


All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.


June 21, 2017 Passed 3rd reading and adoption of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States
March 6, 2017 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.
March 6, 2017 Failed That the motion be amended by deleting all the words after the word “That”, and substituting the following: “the House decline to give second reading to Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, because it: ( a) neglects to take into account the climate of uncertainty at the border following the discriminatory policies and executive orders of the Trump Administration; (b) does not address Canadians’ concerns about being interrogated, detained, and turned back at the border based on race, religion, travel history or birthplace as a result of policies that may contravene the Canadian Charter of Rights and Freedoms; (c) does nothing to ensure that Canadians’ right to privacy will be protected during searches of their online presence and electronic devices; and (d) violates Canadian sovereignty by increasing the powers of American preclearance officers on Canadian soil with respect to the carrying of firearms and by not properly defining a criminal liability framework.”.
March 6, 2017 Passed That, in relation to Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, not more than one further sitting day shall be allotted to the consideration at second reading stage of the Bill; and That, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration at second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:50 p.m.
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Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I am also a lawyer, but the member does not have to take my word for it either.

I was very pleased to be at the table at committee, although, again, I would have rather had my rights restored to present amendments at report stage. However, I did present about 12 amendments on Bill C-23 at clause-by-clause in committee.

To zero in on what is wrong with the bill, it is the nitty-gritty areas, and I completely agree with my colleague's speech. If we look at what is called “traveller’s obligations” in the bill , when a traveller is in this pre-clearance zone, which is still Canadian territory, it is interesting that if the traveller chooses to withdraw, the traveller does not just have to answer questions from the pre-clearance officer for purposes of identification, but the traveller must also provide reasons to assist the agent in determining the person's reason for withdrawing. The person should not have to offer a reason for deciding, on Canadian soil, to leave a place where he or she is being made to feel uncomfortable for any reason.

Again, as the British Columbia Civil Liberties Association said:

We are aware of no sufficiently compelling justification to eliminate the right to withdraw in situations where there is no reasonable suspicion of an unlawful purpose on the part of the traveller.

I think we in this place agree generally that pre-clearance is a good and convenient thing for travellers, but is it worth taking the risk of reducing the charter-protected rights of Canadians? It is fine to say that the U.S. officers operating on Canadian soil will be trained on how to apply the charter, but it seems to me that U.S. agents on U.S. soil seem to be only dimly aware of their own Bill of Rights, and therefore, I do not think they are going to become experts on our charter.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:50 p.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, the member talked about the issue of cellphones. I had the opportunity to sit in on the ethics committee just last week when it was doing a study of privacy at the border. The Canadian Civil Liberties Association, the B.C. Civil Liberties Association, and even their American counterpart, the ACLU, were talking about how critical this issue is. The two Canadian associations represented on that panel both raised the issue of the language in Bill C-23 with regard to pre-clearance and the consequences that can have, given a future presidential executive order that might come down relating to the search of cellphones.

The fact is, the parliamentary secretary, on a media panel we did when the bill was first debated in the House, said that we need not worry because there is an internal departmental directive. I am sorry, but I am not going to protect Canadians' rights with an internal departmental directive. I want it to happen in the legislation that is tabled in the House of Commons. This leads us to another debate, which is the fact that we need to update our laws based on how we treat cellphones at the border, but that is a whole other discussion in and of itself.

Regarding the specific question as to the actual remedies that exist, charter rights and Canadian law are mentioned in the bill as applying, but if we cannot take the person committing the offence to court because of other parts of the bill, then we have no legal remedy. What good are those protections if we cannot actually have them upheld in court and have any sort of consequence on the American officer, in this case, committing the offence? It is not just me who is saying that, but it is what, among others, the B.C. Civil Liberties Association, told us in committee with regard to how the State Immunity Act plays out in this legislation.

Members do not have look to New Democrats, but they need to look to committee testimony from the independent witnesses and experts who specifically told us that this would be an issue. As I said, even my Conservative counterpart agreed with me. The Conservative public safety critic said that there would be no remedy, and he is a lawyer, so we can take his word for it, too.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 6:30 p.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-23 today. Since the last time this came up in the House, we have gone through the committee review process, and I would now like to share some of my thoughts.

I would like to begin, though, by reiterating why we, New Democrats, are opposed to Bill C-23. First, it grants egregious powers to American officers on Canadian soil. I want to make it clear that we recognize the benefits of preclearance, which is already happening. That is why we have to wonder why expanding a system that is already working very well means giving American officers all of these additional powers. We never did get an answer to that question from the minister or other experts who testified in favour of the bill.

The government's main argument, which we heard earlier in the parliamentary secretary's speech, is about the economic benefit of expanding the preclearance process, which would happen in more airports, train stations, and eventually, border crossings.

If that is the only argument in favour of doing this, we need to ask ourselves what justifies these additional powers.

Let us go through some of the powers to be given to American agents, on Canadian soil, through the bill and through the deal that was been signed by the Government of Canada and the U.S. administration.

First, there is the excessive powers of American agents in a situation where a traveller chooses to leave a preclearance zone. The minister assures us this is okay, that it simply has to do with the safety and integrity of these preclearance zones. We have police, CBSA officers, and other forms of security in airports already. Therefore, it is difficult to understand why an American agent would be given the power, on Canadian soil, to question a Canadian who chooses to leave the preclearance zone and, even in some cases, detain that individual under the vague language in the bill.

A Canadian would rightfully say that this seems reasonable, that if someone leaves the preclearance zone, it must be suspicious. That is not the case. We have seen some of the treatment Canadian citizens receive at the border. They are victims of American agents based on their religious beliefs, or the colour of their skin or their country of origin. This was testimony at committee. Who is to say that Canadians of certain origins might decide that an abusive line of questioning is not something they are willing to accept, so they decide to take their bags and go home. That would be sufficient reason to leave the preclearance zone. Unfortunately, under the bill, and under the agreement, that would allow the American officer, on Canadian soil, to potentially go all the way to detain them and interrogate them. We find that unacceptable.

The other very important matter has to do with strip searches, another issue raised by the parliamentary secretary. We can all agree that we give up some of our rights when we go through customs. For instance, we allow our luggage to be searched. Still, I have difficulty understanding why we should allow American agents to search Canadian citizens on Canadian soil.

The bill states that if no Canadian agents are available or willing to do the search, perhaps because they do not consider it necessary, an American agent may do it. The minister justified this by saying that it is nothing to worry about because in the 60 years that preclearance has existed, no Canadian agent has ever been unavailable or unwilling to do a search.

Just because the exception happens to prove the rule in this case does not mean that this legislation safeguards the rights and freedoms of Canadians.

Legislation cannot be drafted on the premise that the exceptions prove the rule. Our legislation must be robust and comprehensive in order to ensure that there are no potential loopholes that would allow the rights of Canadians to be violated on Canadian soil.

The other issue is with regard to the carrying of firearms. The bill, based on reciprocity found in the agreement, would exempt American agents from elements of the Criminal Code that would normally prevent an American agent officer from carrying firearms on Canadian soil.

The minister has assured us that there are memoranda of understanding that it is reciprocity, and that this would only happen in places where Canadian border officers are already carrying firearms. The example the minister gave was at Pearson airport where the Peel Regional Police ensures security. The American agents would not be carrying firearms because Canadian agents do not. It is the local police that ensure the security of the airport.

I asked the minister in committee if he could tell me, given the fact that the bill would specifically create these Criminal Code exemptions, if there was any other legal provision or protection beyond memoranda of understanding, which have no legal authority, and the agreement, that would prevent an American border officer from carrying a firearm. The response received was no response at all. There are no guarantees to say there is any legal remedy for an American officer that might be in said airport, for example, at Pearson, on Canadian soil carrying a firearm. That is not acceptable.

In committee, we identified a number of problems with the process. I asked officials from the Department of Public Safety a question in order to find out what regulatory changes would be made. The government is making regulatory changes to address the cases of people who are exempt from certain procedures. Take, for example, employees who work in a port and who would need access to a preclearance area to do their job every day. They would not be subject to American authority while at work, which is the least we could expect. These are the kinds of exemptions that the regulations would change.

In committee, we debated a bill that makes fundamental changes, yet no one was able to tell us what regulations would be changed. Everyone knows that regulations are not subject to debate in the House because parliamentarians do not vote on them. One fundamental problem with the changes made by the agreement and by Bill C-23 has to do with the minister's discretionary power.

I will give the department credit because it did provide a written answer to my questions. However, in the written answer, the department indicated that it was uncertain which regulations would be affected. We think it is unacceptable that we are not being given a definitive answer on this.

The government's main argument around all these issues around Canadians' rights potentially being violated by American border officers on Canadian soil is not to worry because Canadian law and charter rights apply. That is what the bill says, but what would the bill actually do?

In committee, witness after witness reminded us that, because of the State Immunity Act and how the bill is drafted, there really is no legal remedy. Even the Conservative public safety critic sitting on the committee, the member for Parry Sound—Muskoka, agreed that there is no legal recourse.

Why is that important? The protections accorded to us as Canadians by law and charter, if those rights are violated, what do we need to do? We need to go to court to uphold those rights. If we cannot bring the American officer to court, based on how this bill is drafted, then there is no remedy. Those charter protections are just words on paper and not given force of law and force of our constitutional rights. That is totally unacceptable to us.

A specific argument was raised both in committee and here in the House. The Liberals claimed they were bound by the agreement to enact certain provisions, and that they were sorry if some members did not like it. They added that the agreement was negotiated and signed under the previous Conservative government and under the Obama administration, and not under the current president, and we have to live with it.

It takes courage to say that this is a bad agreement. After the study in committee, where we heard from groups like the British Columbia Civil Liberties Association, various associations representing Canadians from countries targeted by President Trump's executive orders, and the Canadian Bar Association, we concluded that it was a bad agreement. It takes courage to tell the Americans that we will not allow the rights of Canadians to be jeopardized because of the presence of American agents on Canadian soil. I think that is the minimum we can do.

The Prime Minister himself actually said that if Canadians are subject to racial profiling or their rights are violated at customs, at least it will happen in Canada where they are protected by Canadian laws and the Canadian Charter of Rights and Freedoms.

What this really tells me is that we currently have a serious problem regarding how American agents are treating Canadian citizens at the border. The situation is completely unacceptable.

The previous government signed the agreement. The former public safety minister, now the member for Bellechasse—Les Etchemins—Lévis, signed the agreement with his American counterpart, but the Conservatives did not get the bill through the House to set up the legislative measures needed to implement the agreement. I gather from what they said in committee that the Conservatives felt there were problems with the agreement. They may not be as disappointed as us about the loopholes this will create, but even the Conservatives on the committee recognized that it would not be appropriate for an American officer to strip search someone on Canadian soil.

It is about time, when it comes to dealing with the Americans, that we have a government that understands that when we negotiate, we do not just give. We have to get something in return, and in this agreement, beyond the expansion of where pre-clearance takes place, all we have seen here is the government being really willing to roll over, and give all these new powers to American agents on Canadian soil.

The House resumed consideration of the motion that Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, be read the third time and passed.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 5:25 p.m.
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Erin O'Toole Conservative Durham, ON

Madam Speaker, I like the member for Beaches—East York for two reasons. I used to live in Beaches, and I like him and the neighbourhood a lot. I also like how he gives people in what used to be called the Langevin Block some headaches. I hope he continues to do that in the run-up to announcing his bid for the NDP leadership. Was I not supposed to say that?

I will answer for the benefit of my friend in Winnipeg North, who has been a good friend the last few weeks. I have quoted him at length, not from this Parliament but the last one. I know he does not like that, so I will answer the question. The answer is no, because I wanted to join the Canadian Armed Forces.

However, I did think in the last Parliament that we should have modernized our approach to cannabis, and I was on the record about that. I and the former Toronto police chief, now a member of this place, had some good debates on that question.

The member has raised a good point. The only way that Canadians can assure themselves of their privacy protections and protections against search and other things granted in Bill C-23 is to withdraw from preclearance, which means not to go to the United States. It is in the bill.

As I said, this was an example of three things that were rushed that day in Washington, and we should take more time to get it right.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 5:05 p.m.
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Erin O'Toole Conservative Durham, ON

Madam Speaker, I know it is the end of the sitting and I am happy to rise to debate Bill C-23. The ability for me to speak on it is a privilege.

My friend, the member for Scarborough—Guildwood, seemed to end the sitting a little early. He was already changing into Hawaiian shirts for the summer. He did not have his tie on. I have a lot of time for the member for Scarborough—Guildwood, particularly his concern for our men and women in uniform. I know he has been advocating on some mental health reforms, which have had him at odds with the Minister of Veterans Affairs sometimes. I respect him for doing that. I will chide him, but I will also compliment him. He also attended the Highway of Heroes Durham Light Armoured Vehicle launch in Durham last year, and that was an honourable thing to do. When he is appropriately attired, he is a very good member in this place.

Today, I want to take the time I am privileged to have to talk, for a moment, about the importance of the Canada-U.S. relationship. It has been commented on throughout the history of Canada. In many ways, we can look to Canada as a country of evolution as opposed to revolution, as one historian said. We certainly both had our roots in the British influence, although of course Canada had two founding nations in France as well. We have the parliamentary democracy in our system of government that we owe to that time. Then Canada evolved with Confederation, which we will be celebrating on July 1, recognizing 150 years of the Dominion of Canada.

Then the statute of Westminster, which kind of cut the cord with the mother country, so to speak, allowed us to emerge following the Great War. Our independent actions were celebrated, quite rightly, in France in April, with the 100th anniversary of Vimy Ridge. Canada very much earned its place on the world state through the blood, sweat, and efforts of our forebearers.

No relationship is more important to us than the U.S. relationship.

Each prime minister has brought their own approach to it, but I do not think any of them would say it is not the most fundamental relationship of which the Prime Minister needs to think.

In fact, the father of the current Prime Minister is quite famous for his quote, which he delivered in Washington. with respect to the U.S. relationship. He said that Canada “is in some ways like sleeping with an elephant...where we feel every twitch and grunt.” That is true. When the American economy stalled in the years of the great recession, it really took the leadership of Stephen Harper and the Conservative government to ensure we were not pulled into the depths of the global recession and the great recession the Americans saw in the United States. I am very proud we did not see that disruption, with hundreds of thousands of people permanently displaced from the workforce. In Canada, we saw a net job gain in excess of a million jobs at the end of the recession.

At times, our policies are similar. At times, we collaborate. Many times in our great history of two countries, we fought alongside one another.

I had the honour as an MP on the veterans affairs committee, to visit the Canadian Cross of Sacrifice in Arlington National Cemetery, some of the most hallowed ground in the United States. Mackenzie King erected a Cross of Sacrifice to the hundreds of Americans who died in the Great War, fighting with Canadian units. We recognize that in both the First World War and the Second World War, Canada was in the war faster than the United States, despite attempts by the government to suggest we had 150 years of peacekeeping in our past. We were in those conflicts alongside our allies and alongside our values before our friends in the United States and their own sons and, in some cases, daughters came to Canada to help the war effort.

We have a proud history as friends, as trading partners, as collaborators, as people who fought and bled together.

In all of those things, along with familial ties, and I am sure a lot of us in this chamber have relatives living and working in the United States, create a bond that is precious. Therefore, the relationship between Canada and the United States of America is critical.

Conservative governments throughout our history, particularly the Harper government and the Mulroney government, took that relationship very seriously, a relationship of equals, fighting for deals, fighting for agreements that were in our national interest. We can get along with a friend, an ally, a neighbour, but we can also fight for our own interests.

The reason I have this long prologue to my speech is because Bill C-23 represents probably the most one-sided ineffective deal I have seen in my four years in politics. I bring to that experience from my time in the military and the private sector.

The relationship between Canada and the United States, under the current Prime Minister, has been a one-sided relationship with two U.S. presidents now. This has been the history of the Liberals. We saw the antagonism under the Chrétien government, with officials from the Prime Minister's Office having to resign for publicly criticizing a U.S. president. One of the Liberal members from Mississauga made inappropriate comments about a head of state. We have seen that relationship frayed and abused under the Liberal governments, and this is a perfect example.

I will use Bill C-23 as the example of that erosion because it comes out of the Prime Minister's trip to Washington last March. On that day, as he is apt to do, the Prime Minister issued a tweet from Washington, which stated, “There is no relationship in the world quite like the Canada-US relationship.” I would agree.

Months later, the Prime Minister introduced President Obama in this chamber, the then president of the United States, before he left office. He embarrassed many of us in the House when he then referred to the two of them as a “bromance” and that these speeches would be an example of “dudeplomacy”. I hope Hansard can get that right. It is an anagram using the words “dude” and “diplomacy”. It is unbefitting for the Prime Minister of Canada to introduce the then president of the United States in our House of Commons that way. It was the same podium where Winston Churchill spoke and gave the “Some chicken! Some neck!” speech in the midst of the Second World War. To now have a Prime Minister who uses such laughable and immature terms shows why our relationship with the United States is fraying.

With that bromance in mind, how did Canada fare under the current Liberal government and President Obama? Within months of the Liberals assuming office, the president cancelled Keystone XL, a pipeline that would have ensured that Canadians got the fair world price, or a more, for our resources. It was a project championed by Canadian industry, by people who get their hands dirty in the oil sands in Alberta. Corporate Canada wanted to fund and finance it so our resource could be refined and we could have multiple options to get a better world price. He cancelled that deal because he knew the new Liberal Prime Minister would simply accept that.

Ironically, the change in politics in the United States has led to a president who is re-evaluating that deal, because Keystone has virtually zero impact on climate change. That assessment is from the U.S. State Department.

Therefore, Obama knew that he would receive silence from the Prime Minister with respect to a decision that hurt our economy and particularly hurt the province of Alberta, which we know is suffering terribly at the moment. Therefore, we lost Keystone under the bromance.

What else did Canada get? President Obama praised the Prime Minister's carbon tax scheme and carbon pricing across the country. However, we certainly did not see President Obama introducing a carbon tax regime in the United States. Therefore, by praising the ill-informed move of the Canadian Prime Minister, President Obama allowed the Prime Minister to put Canada and our North American integrated economy at a disadvantage. The manufacturing facilities in the auto sector and other industries in southern Ontario compete against U.S. plants for business.

The Bakken shale deposit in Saskatchewan does not end at the Canada-U.S. border. Therefore, if there is going to be an input cost for carbon at a plant in Windsor, because of the Prime Minister and Kathleen Wynne plan, and there is not in Michigan mere kilometres away, where do members think the new vehicle will go?

I had the honour of being legal counsel for Procter & Gamble in Brockville. I was very proud that. For many years, every Swiffer pad members used in their homes was made there, in Canada, by people in Ontario. However, these plants are integrated. Of course, consolidation of manufacturing is now happening at an American plant and it has announced the closure of the largest employer in Brockville.

The U.S. president at the time, Mr. Obama, watched as the Liberal Prime Minister put Canada's economy at a competitive disadvantage.

The third issue is defence. Mr. Obama mentioned that in the chamber as well, asking Canada to step up more to meet our NATO requirement, which is 2% of GDP. In the last two weeks, the government released, with great fanfare, a defence policy, but it is fantasy. The Liberals' first two budgets cut $12 billion from defence. However, if we trust them, sometime before 2026, they will put more money back in.

I judge people not by their words but by their actions. I had quoted Mark Twain for the Liberal government. “Action speaks louder than words but not nearly as often.” The government has platitudes aplenty, but very little action when it comes to supporting our Canadian Armed Forces and supporting our manufacturing and resource sectors.

That brings me to Bill C-23. I am glad my friends on that side are still listening at this point. Hopefully they will see I am right.

Why do I call this the worst deal in Canadian-U.S.?

Some members agree with it and some do not, but the Prime Minister's signature promise was to legalize marijuana. Therefore, this preclearance bill should have anticipated that move. However, I will tell people why this is the most comprehensive change to customs agreements between Canada in the United States.

We are giving the Americans the ability to have American officials search Canadians on Canadian soil, and I wish I were kidding. In clause 5, definitions, of Bill C-23 are frisk search and strip search. I am sad to say this late in the sitting, but in clause 23 is a monitored bowel movement. Therefore, it is an unprecedented, literally, level of access and powers, five enumerated grounds of powers for U.S. officials on our soil, including the gathering of biometric data.

What did we get in return?

The United States and its Immigration and Customs Enforcement Agency, ICE, did not even agree to remove one simple question on preclearance: “Have you ever smoked marijuana?” The Prime Minister could not even get that one question removed from the U.S. preclearance. Why is that important? Because, despite Colorado and some of the U.S. states, if a Canadian answers “yes” to that question, he or she can be banned from the United States. Therefore, people will be losing jobs, and we are already hearing of that, at a time when the government is legalizing marijuana.

The Liberal government seems to forget its evidence-based decision-making, which the Liberals talked a lot about in opposition, including my friend for Winnipeg North. It is bad for the public's health. The Canadian Medical Association has criticized this decision. It is also bad on public safety and customs.

Canadians may think it is all fine because the Liberals are legalizing marijuana, but the Americans can still ask them that question, and they can then be banned from travel to the United States.

I was intrigued when the member for Yukon rose in debate here, because the other disaster of the March 10 agreement in Washington was what the Prime Minister did to our Arctic. With zero consultation with the Inuit and first nations of our north, the Prime Minister unilaterally agreed with President Obama to restrict 10% of our waterways and 17% of our land mass in the Arctic from development. Today is National Indigenous Peoples Day. I guess he missed the duty to consult there. President Obama asked him to do it, and he gave a cursory phone call to territorial and aboriginal leaders mere hours before he pledged to give away their right to determine their destiny.

I heard about it when I was in Yukon. I know my former colleague, Leona Aglukkaq, was outraged by the Prime Minister's acting in that fashion. Right now the Prime Minister has not even been to Yukon. He has been to private islands and all over the world, but he has not been to Yukon, and we have no cabinet representation from our Arctic. That was another disaster from the March 10 agreement in Washington.

The Prime Minister and President Obama also talked about the Paris accord, but as I said before, although President Obama praised the Liberal carbon tax, he certainly did not emulate it, and we are now falling further and further behind when it comes to competitiveness on a North American basis.

Bill C-23 is the culmination of a one-way relationship: the Americans get what they want, and under this Prime Minister, Canada accepts. With Bill C-23, the Liberals could not even get the Americans to take one preclearance question out of the ICE questions they can ask Canadians. They could not even get one question removed, but they are prepared to allow American officials to search our people on Canadian soil and they think that is fine.

The relationship between our two countries is critical, but it is also critical to look at it as a relationship of equals. So far, all that I have seen the current government achieve in Washington is a state dinner, tickets for family and friends, and lots of photos. In fact, if we look at the tweets, the public safety minister was more impressed with tours of the Oval Office in Washington in March than he was in securing a deal in Canada's interests. At a time when we are seeing our auto and resources industries falling farther and farther behind, with marijuana becoming legal, people feel they can just voluntarily tell an American official that they have smoked marijuana. They probably do not know that they could lose their ability to travel for work because the Liberals could not get that one question removed.

Finally, the most egregious element of that day in Washington that led to Bill C-23 was the mistreatment of our Arctic and the lack of respect for our Inuit and first nations. The Prime Minister, who talks about healing the relationship as being central to the current government, gave a courtesy phone call to territorial leaders minutes before announcing that he was restricting their ability to be the masters of their destiny over their traditional lands and their traditional waterways.

I am glad my friends on the government side have listened intently. I hope they can reflect on these elements and how critical it is for Canada to have a mature foreign policy with our friends in the United States. I hope they can come back in the fall and rein in the Prime Minister and tell him that we want deals that are not just good for Canada, for our workers, for our first nations, and for our aboriginal people, but we want to make sure that our friends in the United States take us seriously. It is more than just tweets, photos, and state dinners; it is about getting a result that is good for Canada.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 5 p.m.
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David Graham Liberal Laurentides—Labelle, QC

Madam Speaker, luckily I am already wearing a tie.

One of the major federal issues in my riding concerns the Mont-Tremblant international airport, in La Macaza. This airport is a port of entry with no customs service on site.

In 2008, a motion to concur in a committee report on the matter was unanimously agreed to by the House; it concerned the airport in the community of La Macaza. The motion, moved by my predecessor, Johanne Deschamps, on June 17, 2008, sought to waive the customs charges at the airport. These charges, which do not apply to the largest international airport, can run over $1,000 per airplane, because officers have to come in from Mirabel for each flight.

Bill C-23 finally provides a solution that will allow more international flights to land in our region, which is supported just as much by tourism as by the forestry industry. By eventually having Canadian preclearance services throughout the United States, we will have the opportunity to have a port of entry that we will really be able to use.

I would like my colleague, the member for Ajax, to give us an idea of the process and the timeframes involved in reaching agreements that will allow tourists to visit the Upper Laurentians by having international flights service the Mont-Tremblant international airport in La Macaza directly. This would also be a boon for the Aéro Loisirs flight school and aviation as a whole.

This is also a great help to a region such as ours that relies so heavily on the airline industry, like other similar airports and communities across the country.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 4:35 p.m.
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Ajax Ontario


Mark Holland LiberalParliamentary Secretary to the Minister of Public Safety and Emergency Preparedness

Mr. Speaker, it gives me great pleasure to rise again to speak to Bill C-23. I had an opportunity to illuminate many of the great benefits the bill would bring to Canadians in my speech at second reading.

I want to begin my comments by thanking all the members of the Standing Committee on Public Safety and National Security for their work. It is evidenced by the fact that our government adopted all of the committee's amendments, including the NDP amendment for a five year review. There is an excellent relationship between the committee and our ministry in making sure we have the most effective bill possible. It has been a pleasure to work with the committee members, and I want to take the opportunity now at third reading stage to thank them.

It is appropriate that we are speaking to Bill C-23 on the eve of summer. Many Canadians are getting ready for their travel plans, visiting family, or taking a vacation. One of the things they do not want to deal with on vacation is long lines, hassles, and problems getting to where they want to go.

Pre-clearance would help us facilitate the movement of goods, services, and people, making sure people are avoiding long lines, and that they can expand the number of destinations they can go to. In fact, some 12 million passengers each and every year in the airline sector alone already use pre-clearance. Some people may use pre-clearance, and not even realize they do. People flying out of Pearson have the opportunity to go through customs before landing on U.S. soil, which not only accelerates the opportunity for them to get to work, see family, or start their vacation, it also means they get to have that process happen on Canadian soil. I will get back to that in just a moment.

On the range of airports, it means there are a vast number of airports that suddenly open up to airline passengers as if they are domestic travellers. If people want to go to Nashville, for example, in the absence of pre-clearance, they will be in for a lot of transfers. With pre-clearance, they get to go there directly, roughly doubling the number of cities they can travel to as Canadian citizens. That is certainly a big benefit as a traveller.

The other point, which is incredibly important, is that often in this debate, we have a discussion in abstraction about whether or not there will be issues with moving pre-clearance on this side. Aside from the fact that it has already been happening for six decades, there is the point that someone who is already travelling to the United States gets to have that process happen on Canadian soil. The great benefit of that is that individuals have the opportunity to have the full protection of the Canadian charter, the Canadian Bill of Rights, and Canadian law, generally, so that if something were to happen that they did not agree with, there is the opportunity in the process to have that protection on Canadian soil.

It is important to look at this in conjunction with the work we are doing on oversight, more generally, to ensure as we look at our oversight mechanisms more broadly, when someone does have problems, CBSA has independent oversight. Members can see what is proposed with oversight more generally with Bill C-59, which was tabled just yesterday. It was the largest update of our security intelligence framework since the creation of CSIS. It would put in place rigorous and effective oversight, both in the form of a security and intelligence review body, but also in the form of a committee of parliamentarians. I was very pleased to see the Senate adopt BillC-22 without amendment yesterday. It will allow us to bring forward that committee of Parliament.

Therefore, it can be seen that we are looking at oversight, and making sure that the laws and powers that are extended have rigorous oversight. Of course, one of the great advantages of having pre-clearance happen on Canadian soil is the leverage. If something were to go wrong, there is the opportunity to have discussions bilaterally with our U.S. neighbours to ameliorate that.

There have been some questions about different elements of the bill. For example, if people walk into a detention area, they have to explain why they are there. Some people have taken issue with that, saying there should not be unnecessary delays. Of course, that is exactly the language of the bill. One should only be detained for a limited period of time, and it should only be to ascertain necessary information. Some people have asked, why? Very importantly, we could imagine that if somebody walked into a detention area, was just looking around, casing out a pre-clearance zone, and then made a decision to leave, we want to know why they were there, why they showed up. Asking questions in that regard is extremely important.

I spoke to many of these matters when we were at second reading. I want to come to the testimony we heard at committee. The committee had an excellent opportunity to hear from a very wide array of witnesses as to the economic and other benefits that would come as a result of Bill C-23.

We are all aware of the aspirations of the Jean Lesage and Billy Bishop airports. It is important to enumerate and talk about some of the other witnesses we heard from in terms of the benefits of this bill. In conjunction with that, technical briefings were provided to parliamentarians by Public Safety Canada and the Canada Border Services Agency that expanded upon some of the concerns, and I hope answered them.

I would like to go to the individuals from a variety of sectors such as tourism, Canada-U.S. trade, airports, and others. They told the public safety committee how pre-clearance would benefit their businesses. On that basis, I am going to begin with the tourism industry.

Rocky Mountaineer, one of the sites included in pre-clearance expansion, spoke to committee about how the current customs process works at their station in Vancouver, B.C. With routes that run between Vancouver and Seattle, Rocky Mountaineer currently uses post-clearance customs and immigration processes.

For example, on a southbound journey, U.S. customs and border protection officers conduct customs proceedings on arrival in Seattle. It can take 30 to 45 minutes to clear an entire train upon arrival. With pre-clearance, passengers would be cleared as they arrive to the train station, similar to the experience they go through at one of the eight Canadian airports with pre-clearance operations, some of which I was referring to earlier. Instead of a large group of people arriving simultaneously to be cleared, passengers could be managed as they arrive, and check in for their trip. It would be a more comfortable and manageable experience for passengers, and much more efficient for customs and immigration officers. That is the primary goal of Bill C-23 more broadly, to make the traveller experience more efficient, while maintaining security standards at the border.

As the Business Council of Canada pointed out during its testimony to committee, travellers seek out the path of greatest convenience and least resistance in air travel. It is not just the convenience factor, but there is a major economic benefit to the changes being talked about today. As Canadians or others are contemplating what kind of travelling they may want to do this summer, or any point in the year, they are going to choose the options where they are least inhibited, and are going to be dealing with the least number of headaches. Helping facilitate that is only in our best interest, particularly when we are thinking of foreign visitors who may be attempting to travel in and around North America.

Pre-clearance would give Canada a competitive advantage. It would increase the number of destinations Canadians could travel to directly. I gave examples earlier, and Reagan airport in Washington is another great example. Without pre-clearance facilities, a traveller from Ottawa would not be able to fly directly to Reagan because it does not have customs and immigration facilities. I gave the other example earlier of Nashville.

Once travellers would be pre-cleared in a Canadian airport, they would arrive in the United States just like any other domestic travellers in the U.S. It would let them step off the plane immediately, make a connection, head to a meeting, or begin their vacation, all because they were able to pre-clear at the start of their travels in Canada.

The Business Council of Canada further stated that our country has a great desire for increased trade investment in tourism, and expanding pre-clearance would give a tremendous competitive advantage. It is worth noting that, in an age when there is so much competition for trade and commerce, anything we can do to eliminate obstacles and red tape, and move people, goods, and services in a better fashion is only to our advantage. Where we do not put it in place, we have a competitive disadvantage that is incredibly inhibiting. What we heard in testimony is how important it is to have pre-clearance go through to make sure we continue to have a strong competitive advantage.

Billy Bishop Airport also spoke specifically to this advantage. It has worked extensively to bring pre-clearance to the Toronto Island Airport over the last several years, and would work to implement pre-clearance facilities at its airport with the passage of Bill C-23.

I have had the opportunity to meet with the folks who are responsible for Billy Bishop, and they are ready to go. They foresee enormous economic benefits, not only for that airport, but for the entire greater Toronto region, and of course for the Canadian economy.

Billy Bishop welcomed 2.7 million passengers in 2016 alone, generating $2.1 billion as an economic impact per year. It is a huge amount, and that is before it has pre-clearance. It is the sixth-largest departing airport for U.S.-bound passengers, and the ninth-largest airport in Canada. Expanding pre-clearance to Billy Bishop will promote speed, access to increased destinations, and efficiencies, all without compromising security or safety of the border. In fact, from my earlier comment earlier, it would enhance them. It would make sure that Canadians are getting their pre-clearance done on Canadian soil under the full protection of Canadian law.

Toronto Pearson International Airport is the original example of the benefits of pre-clearance, as the original airport to be granted pre-clearance. As the Greater Toronto Airport Authority testified before committee, each new link or flight route is an opportunity for trade and jobs, something I do not think anybody in this House wants to stand between.

Toronto Pearson has become the fourth-largest air entry point into the United States. It pre-cleared six million passengers last year alone. It has had a 30% increase in pre-clearance traveller growth in the past five years. Quite simply, these numbers demonstrate the undeniable need for expansion and pre-clearance. If we see the benefit and impact of pre-clearance at Pearson, and we imagine Billy Bishop and all the other locations that are contemplating pre-clearance, and we magnify that increase in travel and that increase in commerce, it is not hard to get to a very significant number and the billions of dollars in increased activity for our economy.

The Tourism Industry Association of Canada spoke to these benefits as well. It noticed last year that $91.6 billion was generated from tourism revenues in Canada alone. Over 627,000 Canadians are employed in the tourism industry. It is a massive number of people who are counting on us to have a regime that works for them, and facilitates movement of people, goods, and services.

As Canada's tourism industry grows, we must ensure that we are doing all we can to modernize, and expedite the flow of people and products across our border with the United States. Not only does pre-clearance attract tourists, but it can attract the air service, and allow airports to offer enhanced connectivity in an incredibly competitive global industry. It is a huge boon for both travellers and airports.

Canadian airports connect and manage over 133 million passengers each and every year. Of those, 9.8 million are tourists to Canada. In 2015, 12 million travellers were pre-cleared in Canadian airports to travel to the United States. The expansion of pre-clearance to additional airports, and other modes of travel, such as rail, will build on the success of pre-clearance operations. The economic and traveller benefits cannot be overstated. As we heard from many in the tourism, airport, rail, and Canada-U.S. trade industries, these changes are absolutely vital. Bill C-23 would ensure that more Canadians have access to pre-clearance, while making border travel and trade easier, more profitable, and more secure.

Perhaps in the closing time that I have, I can go over some of the concerns that have been raised, and how we think those concerns can be fully addressed. One of the concerns that was raised, both during the committee proceedings and outside of them, was the ability for officers to conduct strip searches of travellers in Canada.

The rules governing searches by U.S. pre-clearance officers will be almost the same under Bill C-23 as they are right now. A U.S. officer will still have to ask a Canadian officer to conduct a search involving the removal of clothing. The only difference is that in a rare circumstance that a Canadian officer is unavailable, the U.S. officer would be able to conduct the search. Any search by an officer of either country would be subject to the Charter of Rights and Freedoms. It is important to note just how rare a circumstance that would be, that a Canadian officer would not be present, but also how important, that if there were not a Canadian officer, that search could still take place.

Sometimes individuals have something on their person that could represent an immediate risk and danger to officers, and if officers are unable to conduct that search, it could put them at great risk, so it is something that cannot be deferred or simply held back.

Some people have asked what protections would exist for a transgender traveller being strip-searched by a U.S. officer. I can say that CBSA has policies in place allowing exceptions to the rule that strip searches must be conducted by an officer of the same sex as the traveller. For instance, in the case of a transgender person, searches of this nature by U.S. preclearance officers in Canada would be conducted in accordance with CBSA procedures and Canadian human rights jurisprudence. U.S. officers would be provided training to ensure that their conduct met these standards. This is yet another benefit of undergoing U.S. border procedures on Canadian soil.

I think I have explained why people have to identify their purpose when they arrive in a preclearance zone, so I will not talk about that any further.

Some people have questioned the term “unreasonable delay”. They have suggested that “unreasonable delay” of someone in a preclearance area is overly vague. Liberals would disagree. The concept of reasonableness is used widely in legislation and case law and usually means that other people in the same situation would reach the same conclusion or behave in the same way.

With respect to officer authorities, it has been used to refer to generally accepted standards. In fact, when the existing preclearance law was being debated in 1999, the NDP at that point argued in favour of adding the word “reasonable” to the section on the use of force as a way of limiting officer authorities. Certainly the NDP, in 1999, agreed that the term was specific enough to provide the protection and coverage required.

Others have questioned whether Bill C-23 would entitle U.S. officers to carry guns in Canadian airport terminals. The answer is no. Let me be very clear on this point. American officers would carry the same weapons as Canadian border officers in the same environment, without exception. Canadian border officers carry firearms at land, rail, and marine ports of entry, so U.S. preclearance officers would do the same. However, Canadian border officers do not carry firearms in airport terminals, so neither would Americans.

The same principle of reciprocity would apply to Canadian officers conducting preclearance in the U.S. One of the important tenets of the agreement reached with the Americans is the element of reciprocity. We would never see U.S.border officers with guns or comporting themselves in ways that would not be applied in the U.S. under similar circumstances.

It is worth mentioning that our hope and aspiration in passing this bill is that not only would preclearance be vastly expanded to include more locations across Canada but that we would see the same economic benefits and the benefits of the rapidity of travel we saw at YYZ . However, we hope, and have every reasonable expectation to believe, that the Americans will themselves also engage in preclearance in the opposite direction, which would have tremendous economic benefits and is something we would open by adopting Bill C-23.

The last question put to us was the question of permanent residents of Canada being denied entry by Canadian preclearance officers in the U.S. That is not a concern. In almost all cases, permanent residents would be treated exactly the same way in preclearance areas as they would be at any other entry point in Canada. The rare exception would be where there was a major issue of inadmissibility, such as serious criminality. Such individuals would still come to Canada, subject to the usual admissibility rules, at an ordinary point of entry. They just would not have the benefit of preclearance.

I hope I was able to outline for the House the tremendous benefits we have before us with Bill C-23. We need to get moving on this so we can help our tourism industry, trade, and Canada more generally.

Preclearance Act, 2016Government Orders

June 21st, 2017 / 4:35 p.m.
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The House resumed from June 20 consideration of the motion that Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, be read the third time and passed.

Business of the HouseRoutine Proceedings

June 21st, 2017 / 4:10 p.m.
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Waterloo Ontario


Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, I am seeking unanimous consent for the following motion. I move:

That, notwithstanding any Standing Order or usual practice of the House:

(a) if Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, is concurred in at report stage later this day, when debate on the said Bill collapses at third reading, all questions necessary for the disposal of the Bill at that stage be put forthwith and successively without further debate or amendment, provided that, if a recorded division is requested, the bells to call in the members shall ring for not more than 30 minutes;

(b) Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), be deemed read a third time and passed on division;

(c) Bill C-25, An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act, be deemed read a third time and passed on division;

(d) a message be sent to the Senate to acquaint Their Honours that the House disagrees with the amendments made by the Senate to Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017, and other measures, because these amendments infringe upon the rights and privileges of the House;

(e) when the House adjourns today, it shall stand adjourned until Monday, September 18, 2017, provided that, for the purposes of any Standing Order, it shall be deemed to have been adjourned pursuant to Standing Order 28 and be deemed to have sat on Thursday, June 22, and Friday, June 23, 2017; and

(f) when, at any time the House stands adjourned until and including Friday, June 23, 2017, a standing committee has ready a report, that report shall be deemed to have been duly presented to the House upon being deposited with the Clerk.

Public Safety and National SecurityCommittees of the HouseRoutine Proceedings

June 16th, 2017 / 12:10 p.m.
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Pam Damoff Liberal Oakville North—Burlington, ON

Mr. Speaker, I have the honour to present, in both official languages, the 12th report of the Standing Committee on Public Safety and National Security in relation to Bill C-23, an act respecting the pre-clearance of persons and goods in Canada and the United States.

The committee has studied the bill and has decided to report the bill back to the House, with amendments.

June 15th, 2017 / 5:05 p.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Let's talk about a specific example related to Bill C-23 and to the fact that this is not stated in the law.

Based on the protection afforded by the Canadian legislation, it is possible to conclude that if there were an American presidential decree, and if the Canadian law remains silent on this point, travellers would not be protected from searches of their cell phones, for instance. Is that correct?

June 15th, 2017 / 3:50 p.m.
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Meghan McDermott Policy Officer, British Columbia Civil Liberties Association

I'll begin by discussing preclearance and the thresholds for searches.

Currently, electronic devices are considered goods in the context of the Canadian border and in preclearance areas at Canadian airports, and there are no statutory safeguards to protect them from arbitrary search by border agents. Preclearance areas are those designated zones in some Canadian airports where U.S. agents have been empowered to process U.S.-bound travellers.

Bill C-23, an act respecting the preclearance of persons and goods in Canada and the United States, was introduced last June and is intended to repeal and replace the existing act from 1999. Bill C-23 contemplates that preclearance areas will be expanded beyond airports and could be established at rail, marine, and land border crossings. It expands the powers that U.S. agents have and, in our view, unjustifiably limits the rights of travellers in the preclearance areas. We've expressed our concerns with this bill in testimony to the committee on public safety and national security, and we'll make our written submission available to this committee as well. Under both the existing and the contemplated preclearance law, a traveller cannot be arbitrarily strip-searched. An agent must have reasonable grounds to suspect in order to have the legal authority to detain the traveller for a strip search.

The OPC has recommended that an identical threshold for the searching of digital devices be written into Bill C-23. In a letter to the committee on public safety, the OPC asks that “Bill C-23 be amended to place border searches of electronic devices on the same footing as searches of persons and therefore their performance should require reasonable grounds to suspect.” The BCCLA endorses this position, as well as the OPC's further recommendation to make a consequential amendment to the Customs Act to similarly protect the privacy of Canadians who are returning home through Canadian borders. We agree with the OPC that “the idea that electronic devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.” Interestingly, the interim policy documents of the CBSA do appear to acknowledge that it is not appropriate to classify digital devices as “mere goods”. A CBSA operational bulletin from 2015 does not provide for suspicionless searches, but rather states that searches may be conducted if there are “a multiplicity of indicators” that ”evidence of contraventions” may be found on the digital device. We support the OPC's call to codify this policy through legislative amendments. The law should require a border agent, whether CBSA or American, in a preclearance area to have reasonable grounds to suspect that a contravention of law has occurred before they may lawfully search an electronic device. Such legislation would provide legal clarity and transparency to Canadians while also giving existing policy the force of law. It would also support the recognition by the Supreme Court of Canada that the search of electronic devices is an extremely privacy-intrusive procedure.

Finally, I have just two short points. The first is about solicitor-client privilege. This is a matter that the Canadian Bar Association flagged for the committee on public safety, and it applies to ordinary border crossings as well as preclearance areas. Neither we nor the CBA can tell whether Canada has a defined policy about claims of privilege over documents or electronic records on our digital devices. As this privilege is fundamental to our legal system, we want the government to shape a policy that recognizes solicitor-client privilege and entitles travellers to make this claim of privilege over physical or electronic information when they are crossing the border.

Secondly, we'd like to draw your attention to our recommendation to curtail the powers of U.S. officers to strip-search travellers in Canada under Bill C-23. Last month at the committee on public safety, we strenuously objected to conferring any power on U.S. preclearance officers to perform strip searches in preclearance zones in Canada. Under current law, a U.S. agent has no legal authority to strip-search anybody in Canada. If he or she has reasonable grounds to suspect that a strip search is necessary, a Canadian agent must agree that such grounds exist, and only then can they perform that search. We maintain that only Canadian officers should have the power to perform strip searches in Canada, and only in limited circumstances, according to law.

That concludes our prepared remarks. We look forward to your questions.

June 15th, 2017 / 3:35 p.m.
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Brenda McPhail Director, Privacy, Technology and Surveillance Project, Canadian Civil Liberties Association

Thank you very much to the committee for inviting the Canadian Civil Liberties Association to speak on this important topic.

The CCLA, as you know, is an independent national and non-governmental organization that has fought for civil liberties in Canada since 1964.

I'm going to focus on three topics today, the first at some length and the others very briefly. First is the need to update laws and policies regarding device searches at the border in a way that reflects the heightened privacy expectations that adhere to these devices. Second is the great need for public transparency and accountability regarding the way current laws are being interpreted at the border, and the policies and procedures in place regarding particularly privacy-invasive searches, and, very briefly, the need to ensure that the new preclearance act, Bill C-23, maintains or enhances privacy protections for Canadians and travellers on Canadian soil and does not diminish them.

I'm not going to speak at any length to President Trump's executive order excluding non-U.S. citizens from privacy protections under the U.S. Privacy Act, but I do want to just note that CCLA agrees with the concerns reflected in the Privacy Commissioner's letter of March 8, and we share his call to our government to ask the United States for improved privacy protection for Canadians under that act.

This study is both timely and extremely badly needed in light of the stories we've all heard about individuals facing intrusive and humiliating questions about religious faith, ethnic origins, sexuality, and political beliefs at both sides of the border, Canadian and American, and conversely the rhetoric we're hearing about extreme vetting that plays on pervasive fear of terror and “the other”.

I'm going to speak about law in principle for the most part, but I want to stress at the outset that the reason we need to think long and hard about how to improve privacy at the border has to do with the cost to individuals and to public trust from failing to do so.

The CCLA runs a public inquiry line, and on that line border questions have increased dramatically in the last six months. We've had calls from Muslims and Christians, and men and women of different skin colours and different sexual orientations, and they're all afraid of the same thing. They're afraid they are going to be subjected to privacy-invasive searches or questions when they cross the border. Some of them are afraid to travel at all.

We can't do much about how Canadians are treated at the United States border, but we can and we must address the problems that exist at our own. I would go further and suggest that the time is right for Canada to take a global leadership position regarding rights respecting border security laws, policies, and practices.

It is widely believed that borders are special zones in which privacy rights are reduced because of the compelling duty to protect state sovereignty and the populace. We don't disagree with that duty or with the need for effective border security that follows from it, but it is important to note that “reduced” expectations of privacy cannot and should not ever mean “non-existent”, and we argue that to be genuinely effective in the best sense, security must be both rigorous and rights-respecting in equal measure.

This is particularly true in relation to searches of electronic devices, including cellphones, laptops and wearables. We're living in a world where the tools that we increasingly use to navigate our daily lives, sometimes by design and often by default, contain, create, and connect information about us that is profoundly personal and sensitive. We have to quit trying to fit these technologies into a legal and regulatory structure created at a time when both these devices and the quantity and quality of information they can contain was inconceivable.

I know this committee has heard very similar variations on this theme in relation to its studies of the Privacy Act and PIPEDA, and it is similarly and urgently relevant here for this study.

I would argue that it is entirely possible for us to do better. When it comes to law enforcement outside the border context, we are actually in a small way starting to figure out how to address dealing with these devices, the information they store, and the potential for even seemingly insubstantial bits of information to have privacy implications. It's a work that's still very much in progress, but there has arguably been some advancement. In particular, we've recognized that the privacy-invasiveness of an electronic device search requires a clear framework under domestic law to ensure that the search itself is reasonable, that it's conducted in a reasonable manner, and that it's otherwise charter-compliant, usually by requiring prior judicial authorization—a warrant—and adequate grounds on which to base the search.

There is no compelling reason why we can't develop clear laws that allow us to do the same at the border, even taking into account its unique context. The current practice of CBSA is not sufficient. CBSA agents conduct warrantless searches of electronic devices with no defined threshold for grounds, based on largely unexplained interpretations of legislation that originally meant to apply to carriages and cars and boxes and bags. Nor has the manner of such searches yet faced a meaningful public or judicial scrutiny.

Information that is collected from devices searched or detained by CBSA is taken without public knowledge about what it will be used for; whether, how, or for how long it will be retained; and whether, how, or with whom it could be shared. Many individuals, from members of the business community to journalists, researchers, doctors, and lawyers, also have professional obligations to maintain the confidentiality and integrity of their data. The present law is entirely unequipped to deal with that reality.

There are also current constitutional challenges coming forward in the lower courts relating to device searches. While the trend up until now seems to have been to settle and make them go away, at some point these questions will have to be dealt with in the court. They should be dealt with, I would argue, by our lawmakers. It's long past time we updated the Customs Act and other legislation that applies in the border context to recognize the distinction between a bagful of underwear and a device that contains or provides access to our most intimate, personal conversations, our political musings and affiliations, our religious faith, our financial records, our commercial secrets, our health information, and many more types of information.

We also have to note in this context that certain groups—for instance, Muslim individuals, or individuals perceived to be Muslim, which are not always the same thing—have demonstrably been subject to greater scrutiny at the border, perhaps even more so since the U.S. executive order popularly known as the “Muslim travel ban”. Any measure that gives border officials powers to conduct invasive searches or that allows for continued ambiguity, uncertainty, and unchecked discretion in these matters runs the risk of disproportionately affecting these groups.

It's also impossible to talk about device searches without at least touching on related topics of compelled password disclosure and forced access to social media credentials. These practices truly highlight the illogic of treating electronic devices as equivalent to any other good that crosses the border. While it should remain within the purview of CBSA, of course, to detain devices, get a warrant, and conduct a forensic search on reasonable grounds, individuals shouldn't have an obligation to participate in that process.

We know from a 2015 interim document that was released via an access request that the CBSA believes it has the power to impose penalties on travellers who decline to provide a password for a given device. CCLA would argue that, at least in some cases, compelling that disclosure of a password that exists only in an individual's mind could interfere with the individual's charter rights to silence and against self-incrimination. This is in addition to the other privacy rights clearly at play.

Currently Canada doesn't ask for social media passwords or credentials that would allow them to access data stored remotely, and there's no legislative authority that would justify such a request. We simply want to warn against ever moving in that direction, because it would be both ineffective and likely to raise serious constitutional issues.

Social media is a place where people can and do play with identity, which would render the information profoundly unreliable. Of course we know—social science tells us—that people who think they're being watched change the way they behave and the materials they feel free to look at and explore and learn from and study. This means that such scrutiny could also have a profoundly chilling effect on other fundamental freedoms that we value, including freedom of association and freedom of expression.

The second topic I'd like to mention very briefly is the need for greater public transparency and accountability in the way in which our current laws, including the Customs Act and the Immigration and Refugee Protection Act, are being interpreted at the border, especially as they pertain to privacy-invasive searches and questions. I mentioned that we have access to a small number of policy documents. They actually reside on the website of our friend the BCCLA. However, a couple of documents received from an access request in 2015 hardly fulfills the requirement for public accountability or transparency. We don't even know if they're complete, accurate, or up to date. In contrast, if we look at our neighbours to the south, they actually have proactively published their policy documents about this kind of search, a privacy impact study that they conducted, and statistics regarding the electronic searches they conduct. There's no reason we can't do the same.

For an ordinary person at a Canadian border, it's difficult, even impossible, to evaluate whether the way a search has taken place meets constitutional standards. In other words, those scared people I was talking about at the beginning have no way to figure out if the way they're being treated at the border is lawful and fair if they have no access to the policies and procedures that are supposed to have been followed. Of course, with no independent oversight of CBSA, although there is hope that this will change, it's extremely hard to seek recourse.

In my last six seconds, I'll ask you to please take a look at Bill C-23 for its privacy implications, particularly in regard to the ability of American officers to perform strip searches if a Canadian officer declines to do so. It opens up a very dangerous territory. Borders require special consideration not just because they're zones where we need security, but also because they're the first place where people coming into Canada interact with what we hope is a free and democratic country. We need to show them who we are by making sure that our policies and laws at the border reflect our values.