Thank you very much.
My name is Jean-Pierre Fortin. I'm the national president of the Customs and Immigration Union. I represent over 10,000 members across the country who are mainly front-line officers in different Canadian airports and all of those working at land borders also.
We have about six places where we would like to raise concerns with regard to the Bill C-23 legislation. Part 1 of Bill C-23 authorizes a federal minister designated by the Governor in Council to designate pre-clearance areas and pre-clearance parameters in Canada in which pre-clearance may take place. Part 1 also recognizes the authority of a U.S. designated officer to perform pre-border clearance activities and stipulates that Canadian law, including the Charter of Rights and Freedoms, applies to their activities in Canada.
Part 2 confirms that reciprocal authority and responsibility will apply to CBSA officers performing border pre-clearance in the U.S. The bill also references the possibility of other public officers as designated by the U.S. The CIU is unclear as to what is intended by this and how, if at all, such designations will be made, on what grounds they will be made, and with what authorization or restrictions. It would be helpful if this were clarified.
Secondly, on provision of assistance to U.S. officers, part 1 also authorizes CBSA officers to assist U.S. officers in the performance of duties in Canada, but clauses 35 and 36 appear to create distinctions between police and border services officers' authority, as referenced in subsection 163.4(1), the authorization under the Customs Act regarding Criminal Code enforcement. This needs to be clarified, and there should be an extension of the designation of those officers by CBSA.
Issues have been raised regarding the actual requirements of U.S. pre-clearance officers to notify and involve a CBSA officer should they wish to conduct a strip search of a person travelling into the U.S. While that requirement is expressly articulated in subclause 22(2) of the bill, subclause 22(4) authorizes the U.S. officer to conduct a search if no CBSA officers are available or if the CBSA officer declines to do so. The CIU believes that this provision should be removed from the bill, especially as Bill C-23 expressly notes that Canadian laws apply to all actions taking place in the pre-clearance area, and that other U.S. authorities do not.
On clauses 9, 10, and 11, should a strip search be required in the pre-clearance area in Canada, it should be under the authority of Canadian officers exclusively. Clarification should be obtained from the minister, including whether the government will secure memorandums of understanding with U.S. authorities on this issue. This could be expressly required if they were included as preconditions in the original designation of a pre-clearance area by the minister, clauses 6 to 8, and by the Governor in Council regulations that are authorized under clause 57.
Third, on a traveller's ability to withdraw, clause 29 of the bill expressly articulates the right for a passenger to withdraw from the pre-clearance process. Subclause 20(2) of the bill also prohibits the collection of biometric information from a traveller unless clear notice of the right to withdraw is posted in the pre-clearance area.
Even when a traveller chooses to withdraw, pre-clearance officers still have extensive authority pursuant to clauses 30 to 32, including conducting a strip search on defined grounds. The bill requires, in subclause 32(2), notified participation of CBSA officers in clause 22, but with the same exception as noted above in subclause 22(4).
Accordingly, it is also recommended that the minister secure a memorandum of understanding with U.S. authorities on the circumstances in which CBSA approval and participation is required.
Fourth, regarding preventing double jeopardy of officers, part 2 of the bill grants the Attorney General of Canada exclusive authority to commence and conduct a prosecution of a Canadian officer with respect to an act or omission committed in the United States. This is an important provision, which was recommended by the CIU to ensure that there was no potential double jeopardy, for CBSA officers in Canada would retain ultimate jurisdiction.
Fifth, regarding airport application and CBSA officer status, clause 36 of the bill confirms that officers designated by CBSA under section 163.4 of the Customs Act have the “arrest without warrant” authority under sections 495 up to 497 of the Criminal Code. Given the potential increased involvement of CBSA officers in such situations, this should result in designation for all CBSA officers working at international airports, as there is an increased potential that they will be called upon to act.
Further, this bill supports a long overdue overall approval of arming CBSA officers at international airports, especially if they are working in an enforcement scenario with U.S. officers or armed Canadian police officers. Recent events at airports around the world confirm that times have changed and that the fully trained and armed CBSA officers now working at international airports with their sidearms locked in a cupboard should be allowed to carry their sidearm for the protection of themselves and the public they serve.
Further, there is an insufficient number of police officers in most of the airports in Canada. This can be corrected by the minister's helping CBSA achieve the requirement exemption from Transport Canada, as was reflectedly done for other departments' enforcement officers. For example, the wildlife officers have that exemption.
Border pre-clearance at international airports and elsewhere may be a good idea for both countries. However, before CIU can endorse the provisions of this bill, it will be important that the details be worked out to appropriately protect the privacy rights of the people it is designed to benefit.
Again, thank you for allowing me to appear in front of the committee.
One last thing that I forgot is the sixth, concerning immigration and refugee issues.
Part 2 authorizes the Governor in Council to make regulations adapting, restricting, or excluding the application of provisions of the Immigration and Refugee Protection Act and other Canadian legislation in “preclearance areas” and “preclearance perimeters”.
In addition to this, Canadian officers performing border pre-clearance in the U.S. apply Canadian laws, but subclause 48(1) expressly confirms that a traveller in the border pre-clearance area is not in Canada for the purpose of IRPA and that a refugee claim under section 99 of that act cannot be made.
Again, thank you for allowing me to be here.