Preclearance should not come at the expense of Canadians’ rights

  • December 20, 2017

The CBA appeared in December before the Senate Security and National Defence Committee to reiterate its concerns with Bill C-23, Preclearance Act 2016.

The CBA Immigration Law, Criminal Justice and Commodity Tax sections outlined their numerous concerns with the proposed bill back in March, and summarized those concerns in a letter to the Senate Committee in December.

The Sections say they support the concept of preclearance and recognize the economic benefits that would arise from the freer movement of people and goods across the border with the U.S., but stated that they cannot support the bill in its current form.

“We continue to assert that Bill C-23 unnecessarily and unjustifiably sacrifices the rights and liberties of Canadian travellers, and urge that the bill be amended to address these concerns.”

The Sections have five key concerns with the bill, and recommendations to alleviate those concerns:

  1. Concern: The current wording significantly enhances the powers of U.S. preclearance officers, allowing extensive and virtually limitless ability to question travellers. Anyone refusing to answer these questions could be detained and questioned indefinitely.
    Recommendation: Amend the bill to allow a U.S. preclearance officer to question a traveller only for the purpose of identifying them or obtaining their reason for withdrawing from questioning.
  2. Concern: U.S. preclearance officers, untrained in Canadian laws and rights, would be able to conduct strip-searches of Canadian travellers without the involvement of a Canadian Border Services Agency officer.
    Recommendation: Amend the bill to require all strip-searches to be conducted by a CBSA officer or, if none is available, by a Canadian Peace Officer.
  3. Concern: Canadian officers could deny permanent residents permission to enter Canada at a Canadian pre-clearance area.
    Recommendation: Amend the bill to allow permanent residents to enter Canada without restriction, as is their right under the Immigration and Refugee Protection Act.
  4. Concern: With rapid advances in technology, border officers have a much greater ability to gather and share information about cross-border travellers, especially as most now carry smartphones which can be rich sources of sensitive personal information. That ability would be magnified by Bill C-23, which is likely to present a particular issue for lawyers travelling with privileged documents (electronic or physical).
    Recommendation: Canada should negotiate with the U.S. to extend U.S. Privacy Act of 1974 protections to Canadians, and adopt a transparent policy for searching documents and devices that comply with Canadian privacy laws. There should also be an expedited process for addressing solicitor-client privilege in preclearance areas.
  5. Concern: There is limited recourse available for travellers whose rights are violated in preclearance areas.
    Recommendation: Establish an effective oversight and complaints mechanism.

The Sections urge the government to undertake thorough consultations and to amend the bill to address these concerns.


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