Bill C-23 - Preclearance Act

Photo: David Delagarza | AirlineReporter

What Happened

Bill C-23, the Preclearance Act, 2016, was introduced into the House of Commons on June 17, 2016. It changes the preclearance procedures of U.S. border services that are currently in place at eight Canadian airports. It also expands preclearance to additional locations and to new means of transit, gives U.S. border officials new and expanded powers in the performance of their duties on Canadian soil, and provides for preclearance in the U.S. by Canadian officers.

Concerns over these new powers have been raised owing to recent U.S. immigration policies and reports of Canadians being denied entry at the U.S. border. Of particular concern is the potential for discrimination and the arbitrary exercise of U.S. authority that Canadians may face on Canadian soil, as well as new restrictions on the freedom of Canadian citizens to withdraw from the process once it has begun.

A second reading in the House of Commons occurred between February 21 and March 6 2017, and the Bill has been referred to the Standing Committee on Public Safety and National Security. 

Background

Bill C-23 is the latest document detailing the relationship between Canadian and United States border, immigration, and customs procedures.  The border was officially established with the signing of the Oregon treaty on June 15, 1846, which extended the Canada-U.S. border west along the 49th parallel, giving the U.S. formal control over its future Northwestern states, while Canada retained control over Vancouver Island.

Today, Canada and the U.S. share the longest, non-militarized border in the world. It is a barrier through which people, goods, services, and information pass in large numbers and amounts on a daily basis. This economic relationship is not lost on either party or by the other actors involved in facilitating trade, investment, and migration between the countries. These include businesses, the provinces and states, and of course, individuals. In 2014, the trade in goods and services between the two countries totaled more than $730 billion, more than any other two countries in the world.

While the economic advantages of the relationship are clear, both states remain wary of the risks involved in large scale, high-traffic border crossing. Current border agreements and action plans between the two countries cite the use of a perimeter approach to security and economic competitiveness. Under this approach, the two countries work together within, at, and away from the border, making the border itself not the sole focus of cooperation in security matters. This results in a significant compromise for Canada, mitigating the U.S.’s tendency to seek maximum control over their own border security and thereby allowing for increased mobility for Canadian citizens and trade, but still having to implement higher security measures at least comparable to those of the U.S.

However, this relationship also raises concerns about Canadian sovereignty over these decisions and the extent to which information is being shared. All processes should comply with Canadian laws, standards, and values. Any sharing of information for foreign agencies must respect the privacy of Canadian travellers.

Preclearance Agreements

The objectives of border efficiency and security make preclearance agreements a natural project to pursue. Preclearance allows a traveller to pass through the American customs and immigration processes while still in Canada, prior to boarding their plane. Upon arrival at their destination in the U.S., these travellers can then be treated essentially as though they were U.S. domestic travellers.

Some preclearance operations began in Canada in 1952, though there was no formal legal agreement in place with the U.S. at the time. The first official agreement, the Air Transport Preclearance Agreement, was signed in 1974 and was superseded by the 2001 Agreement On Air Transport Preclearance. Notably, this latter agreement was signed on January 18, 2001, prior to the events of September 11, and does not address the security concerns that followed.

Under the current Preclearance Act, the traveller can choose to answer questions from officers and have the right to leave the preclearance area unless an officer has reasonable grounds to believe the individual has committed an offence. U.S. preclearance officers are also subject to limitations. They can perform frisk searches, but must request that a Canadian officer conduct a strip search. If they decide there are reasonable grounds for detaining a traveller, the U.S. officer must deliver the detainee into Canadian custody as soon as possible. In general terms, U.S. officers have limited powers of search, examination, seizure, and detention conferred upon them, besides their power to deny entry to the U.S.

Bill C-23

Under Bill C-23, the current Preclearance Act would be replaced by a new statute based on the Agreement on Land, Rail, Marine, and Air Transport Preclearance that expands the preclearance program to other forms of transportation. The controversy lies in new rules that would govern the preclearance area and new and expanded powers of U.S. preclearance officers. In December 2016 the US Congress passed its own preclearance bill, allowing for the expansion of US preclearance activities in other countries. Notably, unlike C-23, it does not define the exact powers that Canadian agents would have in the United States.

The Right to Withdraw

Under C-23, potential travellers to the U.S. could no longer freely choose to withdraw from the preclearance area should they no longer wish to use the service. Those who wish to withdraw must justify this to a U.S. preclearance officer and comply with any other direction given. This can include submitting to questioning, producing identification and making it available to be photocopied, having their photo taken, and examining any baggage. The only limitation is that this is not supposed to unreasonably delay the traveller’s withdrawal. Questions as to how “unreasonably” would be interpreted, and from whose perspective, have led to concerns that attempts to withdraw could lead to a de facto detention. Public Safety Minister Ralph Goodale defended this measure by saying that it would, “prevent the illicit probing of pre-clearance sites by people trying to find weaknesses in border security before withdrawing from the area undetected.”

If preclearance officers determine they have “reasonable grounds” to suspect an individual attempting to withdraw has committed an offence, they can actually detain, question, frisk, or strip search the traveller, as well as search and seize goods. Importantly, unlike the current Preclearance Act, Bill C-23 does not prevent a refusal to answer questions to be considered reasonable grounds for suspicion. Any non-compliance and withdrawal appears to be far more susceptible to giving rise to a potentially unjust power to detain.

New Powers

U.S. preclearance officers are not currently able to conduct strip searches of Canadian travellers, but this could change. Bill C-23 provides that U.S. officers can conduct a strip search if a Canadian border services officer declines to do so, if no Canadian officer is available, or if the border officer fails to arrive on time. Public Safety Minister Ralph Goodale attempted to provide reassurance here as well, arguing that Canadian officers would only decline to perform the strip searches in rare circumstances and that the individuals would be informed of their rights prior to the search.

U.S. preclearance officers would also have the ability to monitor bowel movements and request that travellers submit to an X-ray or body cavity search. The latter may only be performed with the traveller’s consent, though the consequences of a refusal to submit are unclear. Presumably, a refusal to submit would result in a denial of entry to the U.S. but it is not clear whether such a refusal would trigger the enhanced powers to detain and question the traveller noted earlier.

Another change will allow U.S. preclearance officers to carry firearms on Canadian soil. They would only be armed in the course of duties related to their employment, meaning they would only be armed where a Canadian border officer would also normally be armed.

The Trump Effect

The fear of abuse or misuse of these powers, given the shift in the U.S. political climate, has created considerable discomfort for many in any notion of handing over more significant powers to the Trump administration, especially on Canadian soil. Canada had been looking into the enforceability of Trump’s original travel ban in Canada, and would certainly have to do the same for any future policies of a similar nature.

Concerns about a disproportionate effect on Muslim Canadians have been heightened with recent cases where Muslim Canadians were refused entry to the U.S. U.S. officials detained and questioned a 19-year-old track and field athlete for five hours, and asked a mother travelling with her two children about her religion and views on President Trump.

Other communities are also vulnerable to unfair treatment. Critics of the Bill, including the NDP, point out that the Bill fails to address the concerns of Canadians who might be detained, interrogated, or turned back at the border owing to potential U.S. policies targeting a specific race, religion, travel history, or birthplace. There have been reports of LGBT Canadians turned away at the border since President Trump’s inauguration, as well as travellers who intended to attend a protest.

The Trump administration has had no effect on the substance of the Bill itself, since the underlying agreement and proposed legislation predate the election. It is clear, however, that there was a greater level of comfort when the Obama administration was in power. The arrival of Trump and his controversial approach to immigration and border control raises new questions about how much sovereign control Canadians are willing to cede to the U.S. in exchange for easier access to the U.S.      

State Immunity

U.S. preclearance officers are immune from civil suits for actions committed in the performance of their duties and their decisions are not reviewable by Canadian courts. The U.S. government itself could be pursued in a civil suit, provided the claim is not prohibited by reason of the State Immunity Act which confers such a wide level of immunity to foreign states in Canadian courts that it would be difficult to hold the U.S. responsible for detention and questioning, or even assault short of bodily injury and death.

The main defense offered by the Liberal government, including by Prime Minister Trudeau himself, is that Canadian laws, including the Charter, would still apply to protect Canadians. However, Charter or human rights challenges could face many hurdles, not the least of which is state immunity. If a court or tribunal were to find U.S. border policies on Canadian soil inconsistent with the Charter, the preclearance program could be jeopardized. Canada is one of six countries with a preclearance agreement with the U.S., but this agreement is more expansive than the others and its importance to Canadian economic interests cannot be understated.

Permanent Residents

Bill C-23 also addresses the powers of Canadian Border Service Agents who could eventually be stationed at preclearance areas in U.S. airports. Normally, as provided for under the Immigration and Refugee Protection Act, Canadian permanent residents have a right of entry into Canada (although if there are concerns about the status of the person, those concerns would be flagged and reported for subsequent follow-up, but the person would still be allowed to enter Canada). Bill C-23 however, makes an explicit exception to this right, allowing Canadian Border services on U.S. soil to prevent a permanent resident from entering Canada if they believe the permanent resident is inadmissible.

Preclearance in Other Countries

Among five other countries with preclearance agreements with the U.S., namely Ireland, Aruba, the Bahamas, Bermuda, and the United Arab Emirates, Ireland had ordered a review of its preclearance program due to concerns about potential conflicts with its anti-discrimination laws in light of Trump’s travel ban.

Negotiations for a new preclearance agreement with the Netherlands abruptly ended as a result of concerns about protecting the rights of dual citizens who may face issues under a travel ban or similar policies. The U.S. recently concluded preclearance agreements with both Sweden and the Dominican Republic at the end of 2016.

Important Dates

June 15, 1846: Signing of the Oregon treaty, which established the border along the 49th parallel.

1952: Preclearance operations first begin in Canada, though there is no formal preclearance agreement between Canada and the U.S.

May 8, 1974: Canada and the U.S. reach their first preclearance agreement, the Air Transport Preclearance Agreement, which would later form the basis of the current Preclearance Act.

January 18, 2001: Canada and the U.S. sign the Agreement on Air Transport Preclearance, which supersedes the one from 1974.

February 4, 2011: Beyond the Border Action Plan reached between the Harper Government and Obama administration, outlining a new long-term partnership based on a perimeter approach to security and economic competitiveness. Part of this plan was to develop and implement additional preclearance initiatives.

March 16, 2015: Canada and the U.S. sign the Agreement on Land, Rail, Marine, and Air Transport Preclearance, which was referred to as a key deliverable on the Beyond the Border Action Plan and would go on to form the basis of Bill C-23.

June 17, 2016: Bill C-23 is introduced into the House of Commons

February 21, 2017: Second reading of Bill C-23 begins in the House of Commons, sparking greater scrutiny and concern in light of its contents and the new American political climate given the election of President Trump and the concerns over his approach to migration issues.

March 6, 2017: After the second reading, Bill C-23 is referred to the Standing Committee on Public Safety and National Security.

 

Role or Position

Bill C-23, the Preclearance Act, 2016 would expand the powers of U.S. borders services’ preclearance procedures at eight Canadian airports, expand preclearance to additional locations and new means of transit, give U.S. border officials new and expanded powers in the performance of their duties on Canadian soil, and provide for preclearance in the U.S. by Canadian officers.

Implications and Consequences

Loss of Canadian Sovereignty: U.S. officials are required to respect Canadian law on Canadian soil, but there is no mechanism in the Bill for enforcing human rights violations, including discrimination, racial profiling or violations of legal rights that fall short of the extreme consequences that would be actionable under the State Immunity Act.

Granting new and expanded powers to foreign officials on Canadian soil undermines Canadian sovereignty. The government that is elected and accountable to Canadians loses a degree of control over what occurs, despite the assurances and legal protections in place. These legal protections would also only provide remedial options to pursue, and are therefore only capable of being reactive.

Democracy and Equality: Given the U.S. attempts to implement a travel ban from select majority-Muslim countries, future attempts by the U.S. to introduce policies that discriminate based on religion, national origin, or dual citizenship are an ongoing concern.

Civil Liberties: The Bill effectively limits Canadians’ ability to choose to use preclearance services once the traveller has entered the preclearance area. Canadian citizens are exposed to having their decision to withdraw be treated as potentially suspicious, giving rise to the possibility of being questioned, detained, or searched.

Reduced Mobility Rights and Disincentive to Travel: One of the main aspects of a human rights violation is the inherent insult to the dignity of the victim. By supporting this Bill, the Canadian government is putting itself in a position where it could be seen as facilitating human rights violations perpetrated on Canadian soil by a foreign State with no meaningful access to any remedy. 

 

Published: May 10, 2017

Photo: David Delagarza / AirlineReporter

 

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