We would be happy to return for questioning, if you like, by video or something. We would rather not fly back for the questions.
The law also insulates the United States from most claims. You can't sue Canada. What about the U.S.? Subclause 39(1) states that civil proceedings can be brought against the United States except if the U.S. is immune from such actions under the State Immunity Act.
The State Immunity Act tells us that the U.S. is immune from practically all civil litigation and any remedies in the Canadian court or tribunal unless someone has been killed or injured. In a case where someone's rights were violated by being detained unreasonably, in an instance of discrimination, or in being searched or strip-searched unreasonably, if that person is not injured or killed, there is no legal remedy under the charter, no remedy under the Canadian Human Rights Act, no tort remedy.
It's fine to say they will be bound by the charter and by human rights laws. Of course, we earnestly hope that these officers would do their utmost to respect those laws, presuming they are adequately trained to do so, which is another issue. However, saying that a government agency or a government-delegated agency is bound is never enough. It has to be backed up by a remedy to be effective, and the only power Canada has to ensure compliance is persuasion... the positive relationship. That isn't meaningless, but neither is it adequate as a mechanism to protect the fundamental rights of Canadians. It is very problematic for the crown, in short, to delegate coercive power to any third party, including foreign agents, while shielding both itself and the foreign government from liability for the exercise of that power.
We have a lot of concerns with this bill. That's an overarching one. We're not going to take them all up with you. I want to talk a little bit about strip searches before my colleague addresses you.
Strip searches are an area in which charter violations often occur in Canadian policing. According to this bill, strip searches can be conducted if there are reasonable grounds to suspect that the search is necessary in order to conduct pre-clearance, or that the traveller is concealing anything that's a danger to life and safety.
The minister stated that the changes with regard to strip searches are small changes. He said to you the other day that U.S. officers can conduct such searches only if a Canadian counterpart were not available, and that, generally, Canadians would conduct them. It would be exceedingly rare, I think he said, for a Canadian not to be available.
With great respect to the minister, that isn't the full picture. The bill gives U.S. officers the brand new power to conduct a strip search if no Canadian officer is available within a reasonable time. We don't take issue with the term “reasonable” here today. However, we are deeply opposed to these provisions: if no officer is available within a reasonable time, or if the Canadian officer doesn't arrive within a specified period.
Given that the pre-clearance officers can detain people, can restrain them if necessary to protect themselves, can use force if necessary to protect life and limb, we can imagine no justification for the U.S. being able to perform the search rather than simply waiting.
The fact that a Canadian officer may be waylaid on the way to the search, that the officer may be busy doing something else, that the officer may make an appointment and not be able to make it because something else comes up, should not be a reason for this Parliament to give U.S. officers the state power to performing strip searches.
In addition—and, incredibly, from our perspective—the U.S. officer also has the authority to conduct the search if a Canadian officer declines to conduct it. This gives us a situation where Canada, having been called and having shown up, says, “You know what? I don't think there are grounds.” Why on earth does this bill give American agents the power to conduct that search anyway, and then to do so in a framework where there is no remedy against them?
We know that Canadian police officers with the best of intentions and the best of training mess up strip searches frequently. There's a lot of case law on that. The courts have said that this is one of the most intimate violations that the state can perform. We confer the power on the state to do that in very limited circumstances. Our argument is that there is no circumstance under which Canada, the crown, ought to give this power to someone else. It is just too much of an imposition, and there's nothing to justify it. There's no reason why these American officers, in our view, could not wait.
I'll pass it over now to my friend.
