Preclearance Act, 2016

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


Ralph Goodale  Liberal


This bill has received Royal Assent and is, or will soon become, law.


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.

PrivacyOral Questions

December 5th, 2017 / 2:40 p.m.
See context


Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, our worst fears about Bill C-23 have been realized. A Canadian citizen has been subjected to profiling at the Ottawa airport. She faced intense questioning and had her smart phone searched without reasonable grounds by American border guards. Bill C-23 has not even passed yet, and already Canadians are being discriminated against on Canadian soil.

With President Trump's disregard for rights and privacy, how can the Liberals go ahead with giving more powers to American agents on Canadian soil?

October 3rd, 2017 / 9:30 a.m.
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Ralph Goodale Liberal Regina—Wascana, SK

There are several safeguards, including, number one, the nature of the information. It is very basic data, and it's data that people already share. If you're crossing into the United States, you show your passport. What this will add is the provision that this information will then automatically come back to the CBSA too. You've already told the Americans, so CBSA will have the data that would say this individual left Canada at this time at this border crossing. That's safeguard number one, the nature of the information.

Safeguard number two is the relationship we've developed with the Privacy Commissioner. In all of these measures, whether it's for this or Bill C-23 or Bill C-59, we have an ongoing dialogue with the Office of the Privacy Commissioner. He comments on areas where we could improve, where he sees problems, where he would like to see things changed, and all of that advice is taken very seriously in crafting both the law and the regulations.

There are privacy impact assessments that are required to be done. The ones that have been done so far on this initiative are already on the website. Once the legislation is passed and we actually have the legal framework, we will produce a new privacy impact assessment that will be made public to satisfy the requirements of the Privacy Commissioner. There will also be written agreements between the relevant Canadian departments and between Canada and the U.S., which will detail the way the information will be managed and safeguarded, what the privacy protection clauses need to be, and the mechanisms for addressing any potential problems. That will all be laid out in agreements governing—

October 3rd, 2017 / 9:20 a.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Okay. Thank you.

With regard to my next question, we had this same issue with Bill C-23. Of course, we recognize that regulation is part of legislation and that not everything can be done by legislative means. However, once again, the feeling is that there is a pretty large scope to the regulatory piece in here. It says that: (2) The Governor in Council may make regulations for the purposes of subsection (1), including regulations(a) prescribing the sources from which the information may be collected;(b) respecting the circumstances in which the information may be collected; and(c) respecting the time within which and the manner in which the information may be collected.

Why would that be left so large? That can significantly change the scope of how this information is being collected at the border.

September 27th, 2017 / 5:15 p.m.
See context

Executive Member, Privacy and Access Law Section, Canadian Bar Association

David Fraser

Sorry. Are you referring to Bill C-21 or Bill C-23, the preclearance act?

September 27th, 2017 / 4:35 p.m.
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David Fraser Executive Member, Privacy and Access Law Section, Canadian Bar Association

Mr. Chair and honourable members, we appreciate your invitation and are very pleased to be here today on behalf of the privacy and access law section, immigration law section, and commodity tax, customs, and trade sections of the Canadian Bar Association, as well as the Canadian Corporate Counsel Association and the ethics subcommittee of the policy committee of the CBA board, to present views on the privacy of Canadians at airports, borders, and travelling in the United States.

The CBA is a national association of 36,000 lawyers, law students, notaries, and academics. An important aspect of the CBA's mandate is seeking improvements in the law and the administration of justice. This is what brings us before you today.

My name is David Fraser. I'm an executive member of the privacy and access law section. I'll be representing the CBA sections that prepared our submissions to the committee on this issue, along with Cyndee Todgham Cherniak, who is here with me today. Cyndee is an executive member of the commodity tax, customs, and trade section.

Some information collection is necessary, and certainly expected, at the border; there is really no doubt about that. Our principal concern and the concern of the Canadian Bar Association is mainly about where the line is drawn and where the line is moving and how the fundamental principles in our charter may be left behind as this line is moved. We have commented in our document on both Bill C-21, related to Customs Act amendments, and Bill C-23, related to pre-clearance.

In Bill C-21, we're very concerned about open-ended discretion being given to the CBSA to examine people leaving Canada.

In Bill C-23, we're very concerned about what may be a general disregard of the charter and Canadian norms, when non-Canadian law enforcement officers are empowered to conduct invasive examinations in Canada. We're concerned about broad powers to interrogate those who choose to withdraw from entering the United States. We're concerned that U.S. officers can, for example, perform a strip search in Canada over the objection of a CBSA officer. We're concerned generally about a lack of accountability.

Obviously, electronic devices and the privacy of the contents are of great concern. As lawyers, we're seeing and hearing about searches of digital devices becoming much more commonplace. The CBSA is essentially using suitcase law, developed before the 1980s, to justify a massive intrusion into digital information.

The Customs Act provisions that are at issue were drafted before the 1980s, before laptops, before smart phones, and before thumb drives. In the meantime, the Supreme Court of Canada has said very strongly that all Canadians have an extremely acute privacy interest in the contents of computers, laptops, and smart phones. This has apparently fallen on deaf ears within the CBSA. People travel with a huge quantity of personal information, and the CBSA say that they can go through it legally on a whim. They say they don't, but the law, if applied as they say it is, would allow them to do it on a whim. We say this is likely unconstitutional and needs to be very closely examined by Parliament.

We also have concerns about information sharing, in that the devil is in the details: questions about information sharing between administrative agencies and law enforcement, between one law enforcement agency and another, between federal and provincial agencies, between private companies and governments, and vice versa. We think this needs to be scrutinized very closely, particularly as this information is moving around at a rapid pace. Then you overlay on top of this information sharing between governments, which of course is becoming even more common and something we need to be very concerned about.

My colleague Cyndee will introduce the balance of the issues that we've addressed.

Customs ActGovernment Orders

September 26th, 2017 / 3:55 p.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, I thank my colleague for his speech. Since he knows a lot about how Parliament and the legislative process work, I would like to ask him a question. There have been a number of bills on important issues such as national security. Most recently, we examined Bill C-23 on preclearance at the border. Like Bill C-23, Bill C-21 contains provisions that give the minister a lot of discretionary power over regulatory changes that will be made after the bill is passed. Looking back, when Bill C-23 was being examined in committee, public officials were asked for a list of regulatory changes that would be made to implement the provisions of an agreement with the United States. However, they were unable to provide us with a comprehensive or even a definitive list.

Does my colleague agree that the legislative process requires accountability and transparency, and that this is an unacceptable way of doing things? We understand the need for regulations, but when they are used to circumvent the legislative process, that can cause problems.

Customs ActGovernment Orders

September 26th, 2017 / 3:30 p.m.
See context


Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, I would like to come back to the matter of the information that will be shared.

A problem that we are seeing more and more of, and not just with this bill, is that the Liberal government has a tendency to legislate using regulations. For example, in the bill currently before us, the government gives the minister a certain amount of discretion through regulation. That allows the minister to change not only the type of information that is collected but also the manner in which that information is obtained, the parties from whom it is obtained, and the circumstances under which is it obtained. That is a serious problem.

In committee, we asked Public Safety officials about Bill C-23, which is essentially a companion to the bill in question. They said that they were unable to tell us what type of regulations would be changed because of this bill.

Is the member not worried that the government is making legislative changes, while leaving a big asterisk next to some parts saying that it will make more changes later, at the minister's discretion, through regulation? Is that what accountability and transparency are all about?

Privacy ProtectionOral Questions

September 19th, 2017 / 2:35 p.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, the Privacy Commissioner is worried that American customs will subject Canadians to intrusive searches of their electronic devices. Searching an iPhone is not the same as searching a suitcase. It is looking directly into people's private lives.

Could the minister stand and finally confirm once and for all that Liberals will stand up for Canadians' rights at the border, rather than playing right into President Trump's hands by giving more powers to American agents on Canadian soil with bills like Bill C-23? Let us not hear this talk about respecting the law, because the law is completely silent on this issue. Maybe we can get an update on that, while we are it, to protect Canadians' privacy.

Customs ActGovernment Orders

September 18th, 2017 / 6:10 p.m.
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Pierre-Luc Dusseault NDP Sherbrooke, QC

Mr. Speaker, I am very pleased to welcome you back to the House along with the rest of my colleagues. I would also like to welcome this session's new pages, who will be with us for the next few months.

I am pleased to speak to a bill that will definitely have an impact on my Sherbrooke constituents. My colleague from Windsor—Tecumseh mentioned that her region is on the border. Sherbrooke, which is in the Eastern Townships, is too. We have three neighbouring states: Vermont, Maine, and New Hampshire. The fact that our neighbours to the south are so close to us is part of our everyday reality. Some of our communities even straddle the border. We hear some good stories sometimes about communities where there are houses or libraries right on the border between both countries. A lot of people have dual citizenship because of this.

My constituents are quite concerned about this issue. For one thing, lots of people cross the border, and for another, there is a lot of trade between Sherbrooke and the United States. Many of our businesses depend on the U.S. market. They are very concerned because they are so close and their business depends heavily on what is going on in the United States. That is why trade issues in general are really important to my community, especially now that we are talking about renegotiating the trade agreement between our two countries and Mexico. While I was in Sherbrooke this summer, I heard a lot of people talk about the negotiations under way and the upcoming third round of negotiations with our partners, which will be happening here in Canada. They want to protect their trade with the United States. If possible, they would like to grow that partnership. This issue got a lot of people talking this summer.

The main focus of Bill C-21 is people who are crossing the border. The matter of goods has already been addressed rather thoroughly in Bill C-23. Bill C-21 completes the circle in a way, even though there are a lot of problems with the bill. We are talking here about people, individuals, who are crossing our borders. I am therefore pleased to talk about this issue not only because I live in a border area but also because I care a lot about personal information and privacy, and I am sure that many of my constituents care about this topic too.

From 2012 to 2014, I had the honour of serving as chair of the Standing Committee on Access to Information, Privacy and Ethics. I was therefore quite aware of privacy issues. I often had discussions with the Privacy Commissioner. These are the subjects I am most interested in.

What worries me the most about Bill C-21 is the issue of privacy. In Canada, year after year, agreement after agreement, we agree to share more and more information, not only with Canadian governments but also with foreign governments. Information sharing is becoming increasingly common. Of course, it is governed by written agreements. Information sharing is not done randomly, but it is becoming increasingly common. Bill C-21, which we are discussing today, is about sharing even more information with foreign countries, in this case the United States.

There is good reason for Canadians in particular to question the protection of privacy in the United States. I mention this mainly because of the infamous presidential order that was recently signed in the United States and that we have heard so much about over the past few months.

The title of the January 2017 executive order was:

Executive Order 13768, entitled Enhancing Public Safety in the Interior of the United States.

The order excluded people who are not citizens or permanent residents of the United States from the protections provided by the Privacy Act regarding personally identifiable information.

The Privacy Commissioner of Canada, Daniel Therrien, invited all federal ministers involved, including the Minister of Public Safety and Emergency Preparedness, probably the minister most involved, who also happens to be this bill's sponsor. He invited federal ministers to ask their American counterparts to tighten the rules around protecting the privacy of Canadians.

In the letter, the commissioner pointed out that Canada should be included in a list of countries targeted by the American Judicial Redress Act. It has to do with rules that exclude non-Americans from the protections provided under the law regarding how federal agencies use personal information. The commissioner indicated that Canadians enjoy certain protections regarding their personal information in the United States, but those protections are relative, since they are based on purly administrative agreements and are not given force of law.

The Privacy Commissioner of Canada certainly sounded the alarm in January 2017. Now here we are a few months later, debating Bill C-21. We need to be really cautious about this new order, which allows Americans to shirk their obligation to protect the privacy of Canadians to the same degree that they protect the privacy of Americans, their own citizens.

It is therefore deeply troubling to see that American federal agencies can treat Canadians' information differently from that of their own citizens. This discrepancy is extremely concerning, as it seems to put our fellow Canadians' data at risk. The worst part is that if this information ends up in the hands of a foreign country, such as the United States, there are very few options for recourse.

If we give information to the Canada Border Services Agency and this bill is passed, the Agency will have to hand over that information to the Americans. The Americans will then have the information in their possession, but it could fall into the wrong hands. These things happen. We have seen many cases of hackers successfully accessing data that is valuable to organized crime groups. Such data is considered extremely valuable because it can sometimes be used to scam ordinary people who think they are doing the right thing by answering phone calls or emails that seem to come from a government agency. This data is highly valuable to scammers. As a result, many Canadians may be alarmed to learn that foreign governments that use different protection systems may be getting access to more and more of their personal data.

I am very concerned about that; it is the main reason for which I must oppose Bill C-21, as several of my NDP colleagues did earlier today. What worries me even more is the fact that this information is now in the hands not only of American federal agencies, whose protective measures are less effective than the ones we have in place in Canada, but also in the hands of a president who made an executive order that is even better known—the one that bans persons who have travelled to certain target countries, mainly in the Middle East.

This raises more concerns about the way this information may be used by the American government, and by its president, who issues directives to his government and to its security agencies.

It is truly worrisome when we see stories like that of my friend Yassine Aber, an athlete at the University of Sherbrooke, who simply wanted to go compete in the United States. I believe this happened last May. Unlike his six or eight colleagues, he was arrested. He was arrested because of his name and he was questioned for a number of hours before being told to go back home.

Some of the questions, referenced already in the House, were on his religion, his parents' religion, places he had travelled to, and on his friends in Sherbrooke. They even searched his phone to access information, photos, and his social networks. It is very worrisome that the government wants to give even more information to the Americans through Bill C-21. We can all agree that the Americans do not seem to make good use of the information they have. They seem to use it only to discriminate based on race, religion, or gender.

My time is up, but I would be pleased to answer my colleagues' questions if they want to know more about why the NDP is against Bill C-21.

Customs ActGovernment Orders

September 18th, 2017 / 5:05 p.m.
See context


Erin O'Toole Conservative Durham, ON

Madam Speaker, the government introduced this bill in June of last year and then let it sit. There has been no substantive discussion of these changes to the Customs Act. It is certainly clear that the government now wants to maybe prorogue the House or rush a few bills through to try to somewhat enhance its legislative record. It is particularly shocking given that we are going into the third round of the NAFTA renegotiations that this important bill that the government said was critical to enhancing trade between Canada and the U.S. and that was introduced well over a year ago is only being substantively debated now.

In my remarks, I am going to touch on elements of Bill C-21. Also, in my role as an MP from southern Ontario concerned about the auto industry and our exports, and as the shadow critic for Foreign Affairs, I am going to talk about my concern with how the Liberal government handles the U.S. relationship. It is an important one. As I often say, the U.S. is our closest friend, our neighbour, biggest trading partner, and our strongest ally. I fear how the relationship with the United States has been steadily eroded under the government, regardless of what political stripe is in power in Washington. I will attempt to demonstrate that today, not just through rhetoric but through examples.

Bill C-21 is probably the most comprehensive change to the Customs Act in Canada for individuals. That is because the broadest interventions by Canadian officials at our border would be permitted by the changes to section 94 of the act, under which a border official could ask Canadians to answer “any questions” related to the Customs Act or any other act of Parliament. If Canadians were paying attention to this debate, they would be startled by that. Any questioning on any benefit, tax issue, or anything else could be part of the enhanced questioning at the border as a result of this bill. There has virtually been no debate or discussion of that for well over a year. That is what Parliament is for: it is to have the discussion.

What this bill would then do is allow Canadian authorities to share all of that information with our friends in the U.S. Having been part of the last government and a big supporter of the beyond the border initiative, as we can see from speakers today, the Conservatives are inclined to support this. However, so far we have had little debate. The Liberals are not being open with Canadians or the provinces on how that information will be safeguarded, how personal and private information will be safeguarded when needed. We already have serious problems removing children from no-fly lists, where double names and issues not related to public safety and security make it impossible for young children or, in some cases, veterans to remove themselves from lists. People should be concerned about how information is collected, shared, and stored. That is what Parliament is for: to debate these things so that Canadians will very much know what their government is doing.

The result of Bill C-21 would be an entry-exit data tracking system with sharing with the United States, basically amounting to a common entry-exit system between Canada and the U.S. This has been talked about within the confines of the beyond the border initiative. It has been talked about both in the previous government and the Liberal government.

Let me tell everyone what the current Minister of Public Safety, who is responsible for our border, said about this in the House of Commons in February 2011. He said the following when asking the Conservative minister of the time a question:

If we have a common entry and common exit system, does it not follow that Canada no longer has sovereign Canadian control over immigration and refugees? Canadians need to know what is at risk.

Certainly, the most experienced member of the Liberal government had concerns in 2011 on this exact system, that there was basically no debate on it, but now is being rushed through the House of Commons. I would like him to come to the House and describe how the provisions in the government's arrangements with the U.S. has satisfied the concerns he had at that time. That is his duty as a parliamentarian, particularly now that he is charged with this file. So far, I have not heard the concerns he expressed in 2011 addressed in this place.

It is interesting that this is happening in the context of a government that has actually relinquished its sovereign control over our border, to use the his language, “sovereign control”. The Liberals had relinquished it when the Prime Minister said that anyone can come into our country without respecting our sovereign control over our border, and without respecting our well-established, world-recognized fair systems for refugees, asylum claims, and immigration. Perhaps the largest failure of the government has been on the sovereign control of our border. Therefore, I hope the Minister of Public Safety will come to the House and let us know how the concerns he had years ago about a common exit system has been addressed within the confines of thousands of people coming from the United States into Canada illegally.

As I have said constantly, it is okay for a country to enforce its laws. This is a basic element of sovereignty. It is okay for a country to say that it will have a rules-based system with respect to claiming asylum, refugees, and immigration issues. It is fair. In fact, it was a previous Liberal government that put into place the safe third country agreement with the United States to ensure we had a rules-based system on both sides of the border. However, so far in this debate, I have not heard from any government member how that is addressed in Bill C-21, at a time when it is fair to say our border is in crisis. Therefore, since the Minister of Public Safety, as an MP in 2011, expressed concern then about sovereign control over our border, perhaps he should be in the House and perhaps the bill should have been debated a few months after it was introduced and not well over a year later.

However, I am not done with the hon. member, my friend, the Minister of Public Safety. In his supplemental on that same day in February 2011, here is what he said the government of the day should be achieving in return for a common exit system. He said:

Could the Prime Minister at least guarantee minimum gains for Canada? For example, will he get rid of U.S. country of origin labelling? Will there be no more buy American policies? Will we get hassle free access for durum, beef, pork and softwood? Will passport requirements be removed? Will Canada be exempt from the patriot act? What are the guarantees?

I am probably not delivering it with the gusto he did that day. He is experienced in gusto. However, what he was saying was that the beyond the border initiative should be a partnership with our friends in the United States. It should be two countries working together on areas of mutual interest and for Canada to make these changes, we should see that our national interests were being addressed in the United States concurrently.

If we look at the member for Regina—Wascana, as he was at that time, with his list of demands, those were the issues, minor irritants between Canada and the U.S. Fortunately, my friend who has retired from Battlefords—Lloydminster worked very hard on the rules of origin and issues related to beef, which are some of these issues we have with our closest friend.

However, it was clear the Minister of Public Safety wanted something in return for a common exit system. He wanted to see Canada's interest being advanced with our friends in the United States.

Is that happening now? I would say it is not. I sadly have to remind my friends in the House that when our Prime Minister introduced President Obama right in that spot, he introduced his bromance, his dudeplomacy friend. I have said countless times how embarrassed I was that day for our leader to introduce the leader of the free world, as the U.S. president is often called, in such terms. Quite frankly, it was immature.

How did that bromance benefit Canada beyond the state dinner, the media coverage, and magazine spreads from that state dinner? President Obama cancelled the Keystone XL pipeline within months of the new Liberal government.

We have Bill C-21 and Bill C-23 on border and pre-clearance changes. We are changing and legalizing marijuana, which will affect thousands of Canadians going to the U.S. The pre-clearance bill impacts that. The Liberals could not even get the U.S. Immigration and Customs Enforcement to remove one question from its pre-clearance. We could not even get a question removed from the ICE screening in the United States, yet the U.S. is getting Bill C-21 and common entry exit. The Minister of Public Safety demanded that Canada's interest be advanced concurrently with such a radical move.

While the Conservatives support the beyond the border initiative, we support getting wins for Canada. Regardless of who is in the White House, our friends in the United States will respect us if we come there for a win, not just for a state dinner. In fact, the day he was in Washington, and I have mentioned this before because my friend from Yukon was part of the debate as the last session wrapped up, our Prime Minister committed to freezing between 10% and 20% of the land mass and the ocean mass in the Arctic from any development or any work on that land without even consulting first nation leaders or territorial leaders.

He basically, with one stroke of a pen, or a tweet, blocked off northerners from developing their own economy. In the age of reconciliation, he gave a courtesy phone call to territorial leaders one hour before the event with President Obama.

I think people can understand why I am concerned. In the last two years we have been on the losing end of our most important relationship. As we are days away from the third round of NAFTA renegotiation, people can understand why I am concerned. The very fact that we are debating this in September 2017, when the bill was introduced in June 2016, just before the House rose, and there is virtually no debate, shows that the government is not putting the priorities of Canadians, with respect to trade and our friends in the U.S. as a priority.

I would remind the House that it was only 2011 when the Minister of Public Safety basically had an itemized list of wins he was expecting the Conservatives to have before ever supporting a common entry and exit system in beyond the border. We should hold him to the same list.

Let us switch to this Parliament, because that is too much from 2011. Really, the only substantive contribution I have seen before the debate this week to debate over Bill C-21 has been from the MP for Orléans who is charged with the American relationship. He is the Parliamentary Secretary to the Minister of Foreign Affairs and is tasked in that role. He is a friend of mine. He is a retired general. I think the logic was to have him leverage some of those relationships to build on the American relationship.

What did that member list as the five priorities he saw as the lead with the United States? He mentioned Bill C-21 and border security as one of his issues. He predicted a thinning of the border, as he described it.

With the events in Quebec and Manitoba in the last eight months, a disappearance of the border might be a better description. What the member described as a thinning of the border he put as a priority and Bill C-21 was brought forward.

What were his other issues? Regulatory co-operation was one. We support a regulatory co-operation council. I spoke in Washington on that as parliamentary secretary. We will support the government on streamlining regulations to allow the same approach to pesticides and a whole range of issues, from our farmers right through to producers and distributors.

The member's second priority was energy security and environment. That is interesting, because under the member's government, the U.S. cancelled Keystone XL. The new administration appears to be bringing it back, following the science and the fact that there are going to be jobs on both sides of the border and access for our goods.

The government has been weak in that area, as I mentioned, border security in Bill C-21 and NORAD. In the last few days we have heard testimony at defence committee about North Korea's capabilities in the last few months. My friend from Scarborough—Guildwood shares some of my concerns with respect to that regime, yet the Prime Minister has closed the door to modernizing NORAD with respect to ballistic missile defence. This at a time when we know that the capability of the North Koreans could cause intense and incredible harm to North America. We heard our own generals say in that construct that the way things stood now there was nothing that said the U.S. would need to respond if Canada was threatened because we had opted out of that option, and the Prime Minister has already closed the door. The member for Orléans, who has listed this as a priority, should remind the Prime Minister of that.

The government's fifth priority was empowering women entrepreneurs as the member listed it.

All five issues are important but I have not seen them advanced by the government in any meaningful way since its election. That causes me great concern.

On September 23, we will be hosting our friends from Mexico and the United States for the third round of NAFTA renegotiations. I had a good talk with the Minister of Foreign Affairs today. She knows how much respect I have for her. I am glad she is in that role in the Liberal cabinet.

However, I am concerned that the government's list of priorities going into these negotiations does not mention rules of origin for the automotive industry. U.S. free trade in many ways grew out of Brian Mulroney's work on NAFTA and U.S. free trade before that, but I would remind my friends that it grew out of the Auto Pact from the 1960s.

My dad worked in the auto industry, including at Ste-Thérèse, which is why I was born in Montreal. The auto industry has been integrated on a North American basis, a Canada-U.S. basis in particular since the 1960s. That is how free trade started on this continent, yet the auto industry was not listed as a priority.

Softwood lumber, our perpetual irritant with the U.S., was not mentioned as a priority in that speech. Our Conservative government was able to secure a deal on softwood lumber but so far the Liberals have had trouble with this issue.

Our resource industry writ large, the largest employer of indigenous Canadians, was not listed as a priority. Mexico has put its resource industry as a priority. We have listed a range of other important issues, but we have placed them as priorities when in the past they have been side agreements negotiated after rules of access, export, and everything else was negotiated.

With a government that has seen the erosion of Keystone XL, has seen the NAFTA agreement put forward for full renegotiation, has seen a U.S. government increasingly getting what it sees as a priority with Canada, including intellectual property changes, a whole range of things, we do not see Canadian interests being advanced with our friends and most important ally. That is concerning and it should concern the millions of Canadians, who rely on trade with the United States, about their future. It should concern Canadians that when the threat is evolving and NORAD is being modernized we are not part of those discussions.

In 2011, it concerned the Minister of Public Safety and Emergency Preparedness that a common exit system would be negotiated without clear wins for Canada. I do not see those wins. I do not see the debate. I would like to see the government put Canadian priorities forward for a change.

September 18th, 2017 / 4:35 p.m.
See context

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

If a Canadian arrives on U.S. territory and seeks entry, there is no recourse.

The Standing Committee on Public Safety and National Security has, however, proposed an amendment to Bill C-23, which is currently before Parliament and would give Canadians in a pre-screening area access to a border management administrative mechanism, if not access to a court. In my opinion, that is not sufficient, but it is an improvement to the original version of the bill.

September 18th, 2017 / 3:55 p.m.
See context

Daniel Therrien Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Thank you very much, Mr. Chair, for the invitation to appear before you today on your study of the border.

Privacy rights and the border must be considered in context, and an important element of context is that trade is, of course, important to Canada. This means that smart controls for border goods and data, as they move across borders, are required.

One topic of discussion flagged for your current study relates to screening and searches by Canadian border services officers. As you know, the powers of border officers are quite broad. They may question travellers, collect biometric information for identification purposes, as well as examine, search, or detain any goods.

As for searches of the person, they may also conduct pat-down searches and frisks, take X-rays or body scans, and they may even demand strip searches or body cavity examinations. All searches of persons require reasonable grounds to suspect some legal contravention, particularly the concealment of goods or of anything that would present a danger to human life or safety.

For their part, electronic devices have historically been considered as goods by the CBSA. Paragraphs 99(1)(a) and (c) of the Customs Act allow for examination, opening, and taking samples of goods without grounds. These provisions apply to materials both entering and leaving Canada. In addition, under existing charter jurisprudence, greater latitude is given to state authorities at the border to enforce sovereignty and territorial integrity and to regulate immigration.

At the same time, though, the Supreme Court has found in many other contexts that searching of electronic devices is extremely intrusive. Therefore, while the law is not settled, I think it is clear that Canadian courts would find that groundless searches of phones, of cellular devices, were unconstitutional even at the border.

The idea that electronic devices should be considered as mere goods and therefore be subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. This may well be why Canada's policy is more nuanced than what the Customs Act may allow.

Under CBSA policy, specific grounds need to be satisfied, namely that “evidence of contraventions may be found on the digital device or media”. I think that policy is wise, but it should in my view be elevated to a rule of law in the near future.

Another border issue of note concerns Bill C-23, which is now before the Senate. Bill C-23, the pre-clearance act, 2016, would implement the 2015 agreement on land, rail, marine, and air transport pre-clearance between the Government of Canada and the Government of the United States. This would provide for pre-clearance activities on the part of the Canadian and U.S. customs officials to take place at various points of entry on both sides of the border.

I've raised concerns about U.S. announcements to search the electronic devices of any and all aliens who seek to enter the U.S. These searches will be at their discretion and without specific legal grounds other than generally to protect homeland security.

Bill C-23 establishes that U.S. pre-clearance officers in Canada are subject to Canadian law as they perform their duties or exercise any powers. The Canadian government reminds us that this would include the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act. However, these protections are somewhat hollow, as they would be severely limited by the principle of state immunity, meaning that they could not be enforced in a court of law.

It should be noted that under Bill C-23, searches of persons, including relatively non-intrusive pat-down searches, require “reasonable grounds to suspect” in order to be carried out by U.S. officers in Canada. In my view, searches of electronic devices can be much more intrusive than these frisk searches.

As I recommended in the context of the study of Bill C-23, border searches of electronic devices should require reasonable grounds to suspect, the same threshold that applies to searches of persons.

This past spring, I informed you of my correspondence with the three appropriate ministers regarding the executive orders of the new U.S. administration, issued earlier this year. Measures like these clearly have a material effect on the privacy of many citizens, given the scale of tourism and business travel to the United States.

One order would specifically exclude non-U.S. citizens and lawful permanent residents from certain privacy protections.

Upon review, I have concluded that, while Canadians have some privacy protection in the United States, that protection is fragile because it relies primarily on commitments or administrative agreements that do not have the force of law, for instance the Five-Eyes Agreement and the Beyond the Border Agreement with the United States.

I have therefore called upon our government to ask their U.S. counterparts to strengthen privacy protections for Canadians. This could be done, for example, by adding Canada to the list of designated countries under the U.S. Judicial Redress Act, which would extend some of the protections conferred by the U.S. Privacy Act to Canadians, as they are in place for citizens of several European countries.

We have also asked the government for assurances that the protection afforded by Canada-U.S. administrative agreements will continue despite the order and to be advised of any changes that may adversely affect the privacy of Canadians. We understand that the findings have now been compiled and a response is forthcoming.

Let us turn now to the information-sharing agreements with the United States.

Generally speaking, we have spent considerable time on border issues and information-sharing in the past several years, in particular, the Beyond the Border initiatives with the United States. To date, we have provided feedback on close to fifty separate privacy impact assessments (PIAs) on just these programs alone. Through these exchanges, we have made a series of recommendations to the CBSA and various other federal departments implicated in expanding information exchange and other border-related processes.

Overall, we have been pleased with the level of consultation and the improved quality of privacy analysis undertaken by agencies involved with border security.

That said, we still have concerns over issues such as retention periods applicable to data collected from travellers and the risk that data collected for border purposes is then used for secondary purposes.

Both of these issues were found to be problematic from the point of view of European law, in a recent judgment of the European Court of Justice on the Canada-EU API/PNR Agreement.

In closing, as people, goods and data move across borders more frequently, it is important that Parliament ensures that we have the appropriate rules in place to respect individuals' privacy. The importance of the rules has been recognized historically in relation to the search for persons. In my opinion, it is time to extend these safeguards to electronic devices.

Thank you for inviting me and I look forward to your questions.

Customs ActGovernment Orders

September 18th, 2017 / 1:50 p.m.
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Erin O'Toole Conservative Durham, ON

Mr. Speaker, the member mentioned a critical item. We have Bill C-21, Bill C-23, and a number of preclearance and customs acts before this place. We have thousands of illegal crossings of our border, yet we have seen no major funding initiative from the government to either empower what it intends to pass with Bill C-21 and Bill C-23 or any plan or funding to handle the significant illegal entries happening in Quebec and Manitoba. As our colleague, our shadow minister for immigration, has been saying, not having a plan is a failure.

Now we see tremendous changes to the preclearance and customs exchange of information yet no plan to fund that. I would ask the hon. member her thoughts on that lack of funding at a time when our border and changes to it are in crisis.

Customs ActGovernment Orders

September 18th, 2017 / 11:50 a.m.
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Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, first, I would like to join the minister in expressing my condolences to the family of our esteemed colleague Arnold Chan. His death was a great loss to everyone in the House, regardless of their party. We stand in solidarity with the Liberal caucus and Mr. Chan's constituents, family, and friends at this difficult time.

We are here today to talk about Bill C-21, which the government introduced in June 2016. The government is very enthusiastic about this bill. It is now September, and we are finally talking about it, so we can see how enthusiastic the government is about this bill. Perhaps the purpose of the bill is to pander to the Americans during the NAFTA negotiations. Who knows.

It is important to understand the context here. The minister, in answer to my question, and the member for Laurentides—Labelle in his comments talked about the bill as though it was a piece of stand-alone legislation, when in actual fact it is part of an information-sharing agreement between the Canadian and American governments. We can look at the measures set out in the bill, but they are part of a broader agreement and broader operational practices that are beginning to be implemented for our services at the border.

Things are very different now, and if we take a big-picture view of border issues, Canadians are clearly concerned. The same issues come up over and over. Take cellphones, for example. There is a glaring lack of protection when it comes to cellphone searches and what we call the briefcase law. People surrender a certain degree of privacy at the border. That interpretation of the law is fine if we are talking about someone seeing our unmentionables in a suitcase, but a cellphone that contains vast amounts of information about an individual is something else entirely. That is just one of the concerns we have about the border.

Things have changed now that Donald Trump is in office. In recent months, there has been discrimination at the border. Everyone knows that. The minister says that, statistically, fewer Canadians are being turned away at the border than in previous years. That is not an acceptable answer when people are being subjected to degrading treatment by U.S. border officers who ask them questions about their religious beliefs, their country of origin, and the colour of their skin.

This context is extremely important for understanding where our concerns for this bill are coming from. The minister tells us not to worry, that it is basic information that will be shared, information that is found on page 2 of one's passport. In reality, subclause 92(1) of the bill states that:

the Agency may collect, from a prescribed source, in the prescribed circumstances, within the prescribed time and in the prescribed manner...

It goes on to describe what the Agency is authorized to do. The key phrase I want to draw to the attention of the House is “the Agency may”. It is left to the discretion of border services whether to keep the information or not. At a place like customs, where discrimination is on the rise because people are judged by their destination and their origins, this is quite problematic. This could lead to increased profiling. God knows that there is too much of that already at the border.

Let me go back to the agreement that led to this bill.

The entry/exit program is only just beginning and will grow. Despite the enthusiasm that Liberals and Conservatives might have for it, we are going down a very slippery slope here. Before we continue, someone needs to put on the brakes because what we are seeing here is further integration at the border. That might seem great if all that we are considering is efficiencies, but we want to consider people's rights at the border, but that is lacking in the conversations that are happening.

Where does it end? When we talk about the context that I described with regard to cellphones and the lack of legislation as to what people's rights are when they are asked to unlock their cellphones and provide that information, and when it comes to the profiling that is happening at the border, that also applies to what new tools we have brought into place. The current U.S. President has floated the idea of using biometrics at the border. Will that end up becoming part of this kind of entry/exit agreement on top of the biographical information that would be provided? We do not have answers to these questions.

The fact of the matter is that any information that is being collected and shared will lead us down a path that we have seen before, because, quite frankly, as I said in my question to the minister, some of the most egregious human rights violations that Canada has been a part of, even if by proxy, have happened because of the sharing of information. That is something we are doing more and more in a post-Bill C-51 world, which, by the way, was a bill that the Liberals supported. That is the reality that we have to take into account when we consider increasing the amount of information we are sharing. It is not only biographical information, but also about where people are going to and coming from. While that might seem fine for someone who is not being profiled at the border, there are certainly many law-abiding Canadians who know what the experience is like, who because of where they are going to or where they are originally from; because they might be dual citizens and because of the country from where other citizenship is from; because of the colour of their skin and their religious beliefs, suddenly that basic biographical information being collected and shared with the U.S. government takes on a whole different context despite the fact they are law-abiding Canadians. That is very troubling, and even more so when I hear the minister talk about the fight against radicalization.

Certainly it goes without saying that we all agree that radicalization is an issue that needs to be tackled. Here, I would add that we are still waiting to hear more about what the government is going to do with its grassroots approach to taking on the fight against radicalization. We have not heard much about that in a little while, but that is a sidebar.

The reality is that when I hear things like that and the Conservative member who just spoke, and this bogeyman that is raised of how we are going to go after terrorism, there is a code there and we know what that leads to at the border and the treatment that people go through afterward. That is not something we want to see happen. Sure, we can have faith in our CBSA officers, the men and women who do extraordinary work despite limited resources because of successive Liberal and Conservative governments, but we are also looking at what the U.S. is going to do with that information. That is where the danger lies.

President Trump has signed an executive order explicitly stating that persons who are not U.S. citizens are now excluded from the protections offered by United States privacy legislation.

That is extremely dangerous, considering that the Canadian government is rushing to partner with the U.S. government to increase the amount of information it shares with the Americans.

Given that the President of the United States says he may consider torture acceptable and given that Canada has a ministerial directive in place allowing for information to be shared with countries that engage in torture, we are facing a big problem. I am not saying that this is exactly what the bill says, but the upshot of this bill is that we will be sharing more and more information.

It is a very slippery slope, since we keep sharing more and more information with other countries, including the United States. Even though the U.S. is an ally, the statements coming from the current administration are cause for concern and make the idea of sharing information about public safety and national security extremely troubling.

In a post-C-51 world, the accountability procedures are wholly inadequate. Let us look at the facts. An article published by the Toronto Star in August said the following:

CBSA has quietly started receiving and sharing some information with the U.S. government.

That means some information sharing was already allowed even without this bill being passed. The bill will just settle things for good.

The risk is that this may be done more covertly, without proactive transparency. At the end of the article, it says that Canada Border Services Agency plans to update the privacy assessment once the bill comes into force.

It is far from reassuring that we are talking about doing another privacy impact assessment after the bill is adopted. In that spirit, the role we have as parliamentarians is to protect Canadian safety, but also their rights, and their right to privacy more specifically. As far as this bill is concerned, we should look at how much is left up to regulation in the bill. For example, under “Regulations”, the bill states:

The Governor in Council may make regulations for the purposes of this section, including regulations

(a) prescribing the information that must be given under paragraph (1)(a);

(b) respecting the conveyances in relation to which information must be given under subsection (1);

(c) prescribing the persons or classes of persons who must give the information under subsection (1);

(d) respecting the circumstances in which the information must be given under subsection (1); and

(e) respecting the time within which and the manner in which the information must be given under subsection (1).

Those are all things that the Governor in Council can do through regulations. That essentially means, for the people listening at home, that those are things that the minister can decide to do all on his own, without a proper vote in the House of Commons on a piece of legislation. That is extremely troubling. If we go back to the debate on Bill C-23, which is the sister legislation in the context of this more integrated border with the U.S., in committee, I asked public safety officials which regulations would be changed, as that bill also opened the door to all of the regulatory changes that could potentially change the scope of the bill. That certainly concerned New Democrats. I will give the Liberals credit. They got back to us and provided a list of regulations that may change, but the list was not exhaustive.

As parliamentarians voting on a bill and trying to protect Canadians' rights in the context of sharing more of their information with the American government, especially under the current circumstances or regime, if I can use that term, it is extremely troubling that there is so much latitude allowed for regulatory changes. We certainly understand that there is a place for regulatory changes in the way that our government functions, but when it comes time to prescribe what information is shared, who is sharing it, and how they are sharing it, which is the core of the issue with this bill, that cannot be left out of the accountability process, which obviously includes debate in the House and study at committee.

When I was in Washington with the Standing Committee on Public Safety and National Security, I learned about some new tools, such as digital fingerprinting and facial recognition, that the U.S. may begin using at its border. Those things are still in development, but they are getting to the point that the U.S. government will be looking to deploy them.

The minister is trying to reassure us by saying that he is in constant contact with his American counterpart, but people at Homeland Security envision using exactly those kinds of tools in the context of this information sharing agreement. We could very well see a higher level of integration. In the statement on greater integration of border operations that came out of the meeting between the Prime Minister and President Trump in Washington, they talked about the possibility of our border officials hosting American border officials.

Forget about all of the problems that co-locating two agencies from two different countries could cause, if only in terms of collective agreements and working conditions. Let us just talk about training. The minister took the time to point out that officials would be trained to protect Canadians' privacy and would always act in accordance with the law. I am not questioning the work that is going to be done, but when we debated Bill C-23, which would allow American officials on Canadian soil, we asked Public Safety and Emergency Preparedness officials what the plan was for delivering that training while ensuring respect for the Canadian Charter of Rights and Freedoms, privacy laws, and even Bill C-23 itself, and we were not remotely satisfied with the answers.

The minister can be as reassuring as he wants, but it takes more than that. We need something tangible that truly outlines the process that will be put in place for protecting people's privacy. Even if the process is clearly spelled out to us, in an agreement like this with a bill like this, given the way in which Canadians' information will be shared with the U.S. government the minister must admit that the information will not enjoy the same protection in American hands, even if we have the best men and women working as Canadian border officers and the best legislation in place and if we are making every effort to protect people's privacy.

The minister can reassure us all he wants, but, as he so often says, the Americans can do what they want. That is reason alone to not only oppose the bill, but, as I said, to also rethink the agreement.

As I have said time and again, we are seeing a troubling tendency with the new information related to the public safety file globally, whether it is the Justice Noël decision related to illegal collection of metadata by CSIS; the Privacy Commissioner reporting last week that the RCMP has illegally obtained information from cellular phones six times in the last year; racial profiling at the Canada-U.S. border; people being asked to unlock their cell phones and provide social media passwords at the border, without clear legislation in that sense; or whether it is the fact that two years in we still have not seen any changes to Bill C-51. We finally tabled a bill in the dying days of the last sitting of the House, which does not go nearly far enough.

It is a troubling tendency we are seeing that is undermining the confidence and trust that Canadians have in their national security agencies and in the approach that successive Conservative/Liberal governments have had. There is a lack of understanding that rights and security are not a zero-sum game, and that the word “balance” implies that there is sacrificing of part of one or the other. We need to do both. Unfortunately, that is not the report card that the government can have.

We look at a bill like this, at these kinds of agreements more broadly, as we decide to share more and more information with a U.S. government that is being led by a president who has opened the door to the use of torture, and has removed privacy protections on information, not only for his own citizens but even more importantly for non-Americans. For Canadians, in that specific context the government cannot ignore it. Whether it is trying to fast-track this bill that was tabled in the House in June 2016, maybe to make nice for NAFTA negotiations, the fact is, it is about time that the government started to hit the brakes on this willy-nilly sharing of information.

I want to end on one piece. If the government is so proud of this agreement, if it really thinks it is doing the right thing, I have one question to ask. Unfortunately, I will not get to ask it, so I will ask it rhetorically. Why is it that on the first day back in the House of Commons, after a great summer of work that we all spent in our constituencies, that we are hardly going to hear any Liberal speakers? The minister has spoken, and there will maybe be a handful more speakers. However, it is mostly New Democrats and Conservatives who will be carrying the debate.

Maybe my Conservative friends can tell me what is so great about this bill, because, sadly, I do not think I am going to hear about it from the Liberals. They have certainly not made the case for it. The “just trust me” approach by the minister is not good enough when it comes to protecting Canadians' rights and privacy.