Good afternoon, Mr. Chair and members of the committee. My name is Michael Greene. I'm a former national chair of the immigration law section of the Canadian Bar Association. I'm currently a senior adviser. I've been practising immigration law for 30 years, and I also teach immigration law at the faculty of law, University of Calgary.
In 1999, I appeared before the predecessor of this committee on the current Preclearance Act, so I'm familiar with the process and what's evolved with the legislation.
I thank you for the invitation to present the CBA's immigration law, criminal justice, and commodity tax sections' views on the implications of Bill C-23. We're an association of 36,000 lawyers, law students, notaries, and academics. An important part of the Canadian Bar Association's mandate is seeking improvements in the law and the administration of justice. It's that perspective that brings us to appear before you today.
We have submitted a written brief to this committee. Today I will just focus on parts of that and what we consider probably the most serious concerns. It would be wonderful to be here for questions, but I will be running out for an airplane somewhere around 5:30. I don't know how long you will be going anyway. I'd love to answer questions, but we'll see how it goes.
At the outset, we'd like to make it clear that the CBA supports the concept of pre-clearance areas and the need to modernize the legislation to allow for expansion to land, sea, and rail crossings, and to permit Canadian pre-clearance areas in the United States. We recognize that the pre-clearance areas do offer a convenience and help to facilitate the free flow of goods and people across our mutual border.
However, we believe that the proposed bill goes too far in granting unnecessary and what we believe are unjustifiable powers to foreign officers operating on Canadian soil, and to Canadian officers operating on foreign soil, and I'll get into that.
We recognize that the government is in a difficult position. The agreement that this legislation is based on was signed in March 2015, and the U.S. has already enacted their legislation. It is difficult for us to go back and renegotiate the bill. At the same time, we know there's a lot of pressure on Parliament to hold their noses and pass the thing rather than risk getting a worse bill if it were renegotiated. We get that. We try to make recommendations with that in mind, but at the same time there are some serious concerns.
We were concerned when the bill first came out a year ago. Those concerns were greatly magnified with the outcome of the U.S. presidential election and how things could work in operation, given some of the pronouncements that were made during the election campaign. We understand that members of this committee have met with Secretary Kelly, and also that he has made some statements before his own committees that suggest he is warm and friendly to Canada. That's encouraging, but it doesn't take away some of the concerns we have, because they depend on the legislation and not the man.
The new U.S. administration is very inward looking. It is preoccupied with security. The changes they're proposing in the U.S. are to greatly enhance the security features of the U.S., to give greater enforcement powers, to increase the number of officers, but also with very little concern for individual rights or freedoms, with the sole exception, of course, of the right to bear arms.
It's in that context that we must remember that the bill will grant significantly enhanced powers to U.S. officers who owe their allegiance to a foreign government and not to Canada. These officers are trained in the United States, they report exclusively to U.S. authorities, and have a primary mandate to carry out the U.S. government's directions to identify and exclude potential threats to U.S. security. They also seem to have a more aggressive style than their Canadian counterparts, and we expect that this will only get worse as a top-down cultural change occurs within the Department of Homeland Security. We've seen it happen in Canada before with the CBSA, so we know that kind of cultural shift can happen, and it can be very hard to reverse.
Given the setting, we are not confident that a few hours' training by CBSA will be enough to instill respect for Canadian cultural values and constitutional rights in our pre-clearance areas. That is why we think it's very critical that we get the legislation right.
The main thing I want to talk about is the right to withdraw, but it's more than just the right to withdraw. It's the whole nature of the process. Under the current Preclearance Act, a traveller has an unqualified right to withdraw at any time in the process. It's entirely voluntary. It recognizes it's Canadian soil. We had this battle in 1999, and I think it was resolved and it was clarified, and the 1999 bill makes it very clear that Canadian law applies and a traveller can withdraw at any time. It uses language such as, “If the traveller chooses to answer any question...the traveller must answer truthfully. If the traveller refuses to answer any question asked”, they may be asked to withdraw. It is entirely voluntary. At any time you can say you don't want to do this anymore.
The proposed provisions of Bill C-23 would gut that legislation and change the pre-clearance process to one where foreign officers can compel answers to questions and can detain anyone who refuses to provide answers or information. It's not a minor change. It's a fundamental shift in the nature of the pre-clearance process. We believe it represents a significant surrender of Canadian sovereignty, which has been proposed without meaningful justification. The combined effect of clauses 31 and 32 effectively turns the U.S. pre-clearance areas into U.S. territory. The problem is not that they are applying U.S. laws, because it's quite clear they're applying Canadian laws. It's that they are applying a Canadian law—that is, Bill C-23—which we think gives them too much power.
With respect to a traveller who now wishes to withdraw, the only limit contained in here is that in subclause 32(3), which says, “A preclearance officer may exercise the powers set out in subsection (2) only to the extent that doing so would not unreasonably delay the traveller’s withdrawal”.
In his committee appearance a week ago, the minister assured the committee that the “unreasonable” test would be sufficient, because it's quite common to use reasonableness in Canadian law. However, we don't believe it's sufficient protection. First of all, “reasonable” is not a scientific term. It does not have a black and white definition. It's very open to contextual interpretation. The courts struggle with it on a daily basis. A problem here, unlike with criminal law, is that there's very little opportunity for these matters to come before the courts. The act specifically says that you cannot take a decision to Federal Court, and you're very limited in criminal and civil remedies. There are virtually none. The only way it could be tested is if a person is charged with obstructing or refusing to answer, and they defend that charge on the grounds that an unreasonable delay occurred.
We don't believe there are going to be a lot of charges under this bill. We think it will create a framework to create a process that is coercive and intimidating. That's going to be the real problem, the experience that travellers will have. We don't think we're going to see courts interpret what's reasonable.
The other thing to remember in terms of reasonableness is the mandate is different. Our reasons for wanting pre-clearance legislation are not the same as the Americans' reasons. We want it to facilitate the free flow of goods and people. The Americans want it to expand the border outwards so they can stop bad guys before they get onto American soil. It's a totally different motivation. When we consider something is reasonable or unreasonable, we don't want an unreasonable delay because we don't want to interfere with that free flow. They want to protect American security. That's their number one mandate. When they interpret an unreasonable delay, and they're trying to protect American security, you can expect they're going to want to ask more questions than a Canadian officer would.
If a U.S. officer, for instance, suspects somebody is border probing, which is the supposed rationale for these provisions, they're not just going to want to accept the person's explanation that they want to leave the area because they think they left their iron plugged in. They're going to want to get deeper into it. A border prober is not going to give you the honest answer when you first ask; that's going to demand further examination.
Under the new administration in the United States, we've already seen media reports of Muslim Canadians being subjected to hours and hours of questioning about their religious beliefs, their religious practices, their associations, and their opinions of the new U.S. president. I think you've had this brought to your attention already.
To illustrate how this could unfold and the problem with the legislation, there is the interplay of clauses 31 and 32. I'll admit that we did not cover this very effectively in our brief. It's something that came to our attention after our brief, figuring out the interplay.
I want to ask you to imagine the scenario of a Canadian Muslim traveller going through a pre-clearance area and being subjected to extreme vetting—which we know is on the table now—about their religious practices, beliefs, and associations. Feeling abused, the traveller announces his intention to withdraw. The officer, who has not finished his interrogation, announces that he wants to explore the traveller's true reasons for withdrawing—perhaps suspecting he is a border prober. The officer believes the questioning is not unreasonable because of their security mandate. However, the traveller thinks it is unreasonable and after several questions says, “I'm not going to answer any more. I think this is an unreasonable delay. I want to leave.”
At that point, the officer announces that he has reasonable grounds to suspect that the traveller has committed an offence under an act of Parliament by not answering the questions truthfully. That brings in section 32, which gives the officer the right to detain the individual. Under the wording of section 32, the officer then is able to question the traveller, collect information from the traveller, and examine, search, and detain goods of the traveller. Goods have been interpreted by the courts and by the CBSA to include electronic devices.
So you can see this situation where the person says, “I don't want to answer any more of your questions.” We're not talking any longer about unreasonable delay, because that's off the table. The officer is now saying, “I have reasonable grounds to suspect that you've given me an untruthful answer. I don't really believe it's the unplugged iron. I think it has something to do with your associations.” At that point in time, there doesn't seem to be a limit on the questioning that can take place.
That is a major concern. There does not appear to be any recourse for that traveller. They risk getting charged. What we think is going to happen is that people are going to submit themselves to intense questioning just to not have a bad experience and not be kept out of the United States forever.
The rationale offered for this is the so-called fear of border probing. Border probing—I'd never heard this term before. What is it? In our opinion, after fair consideration, we think this is a solution in search of a problem. Border probing is apparently when somebody comes through an area, then tries to surreptitiously evade being questioned or identified by simply turning around and leaving. But that's not the way pre-clearance areas work. The very first thing that happens when you go into a pre-clearance area is that you give them your passport. They scan that passport, and they have you already. You're identified. You're not surreptitious. There's no surreptitious leaving.
Even if you could leave, what is it exactly that's being probed? Hundreds of thousands of travellers every year cross through those borders. The border probers aren't going to see anything more than you or I see when we go to the United States.