Canada has passed new legislation that expands the authority of US customs and border officers working at Canadian airports, a move civil liberties groups say may put the rights of Canadian travellers at risk.
Bill C-23, also known as the Preclearance Act of 2016, gives several new powers to US Customs and Border Protection (CBP) officers who conduct preclearance security checks of Canadian passengers before they board US-bound flights.
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Those expanded powers include the ability to carry firearms and conduct strip-searches in Canadian airports, as well as the authority to detain Canadians should they decide to withdraw from preclearance procedures.
“Our concern is that it’s really coming at the cost of the rights of travellers,” said Tim McSorley, national coordinator for the Ottawa-based International Civil Liberties Monitoring Group (ICLMG), a national coalition of civil society organisations.
First tabled in parliament in June last year, Bill C-23 received royal assent this week and will soon become law.
While McSorley said “preclearance makes sense” – more than 400,000 travellers cross the Canada-US border every day, according to the Canadian government – the new law appears to “open things up to greater escalation of problems”.
What is preclearance?
Currently, a handful of major Canadian airports – including in Montreal, Toronto, Winnipeg, Calgary and Vancouver – allow Canadian travellers to clear US Customs and Border Protection procedures before they board US-bound flights.
The same pre-clearance procedures are also available for passenger and vehicle traffic on ferries between the US and Victoria, in the western province of British Columbia.
CBP currently deploys more than 600 officers at 15 locations in Canada, Ireland, Aruba, The Bahamas and the United Arab Emirates, to conduct preclearance procedures, which US officials have stressed are important on the grounds of national security.
“The expansion of preclearance in strategic locations will further strengthen our ability to identify those who may pose a national security threat prior to encountering them on US soil,” R Gil Kerlikowske, the commissioner of the customs and border agency, recently told The New York Times.
In 2014, Jeh Johnson, the secretary of the US Department of Homeland Security, said preclearance allows the US to “extend our homeland security beyond our borders and address threats as far from the homeland as possible”.
That pledge came after the governments of their respective predecessors, Barack Obama and Stephen Harper, signed the Land, Rail, Marine and Air Transport Preclearance Agreement in 2015.
For Canada, the new law – which was enacted to implement the 2015 deal – “will enable faster travel” to the US, and Ottawa has touted the procedures as a way to boost trade between the two countries and increase security.
The regulations are expected to be in place for air travel before the end of 2018 and will be expanded to road, rail and marine travel at a later date.
Thanks to all Parliamentarians who supported Bill C23 – laying the foundation for expanded PreClearance for Canadian travelers to the US (1/3)
— Ralph Goodale (@RalphGoodale) December 13, 2017
“The Government of Canada is committed to making the Canada-United States border more efficient and secure,” Ralph Goodale, Canada’s minister of public safety and emergency preparedness, said in a statement this week.
“Today we are one step closer to expanding preclearance – making travel faster for Canadians and bolstering trade, while also protecting our rights.”
But civil rights groups and legal experts in Canada have raised several concerns about the legislation.
The most contentious part of the law appears to be how it will give US officers expanded power to detain Canadian travellers while they are still in Canada.
Currently, if a Canadian traveller undergoing US preclearance procedures at an airport does not like the way their interaction with a US official is going, he or she can choose to withdraw from the procedure and simply not travel to the US.
Under Bill C-23, however, US officers will now have the right to hold and question “the traveller for the purposes of identifying them or determining their reason for withdrawing” from the procedure.
US preclearance officers will also have the right to detain a Canadian traveller if the officer “has reasonable grounds to believe that a traveller bound for the United States poses a risk of significant harm to public health”.
“We’re concerned that then things can escalate from there because the new law also eliminates the provision that withdrawal isn’t grounds for suspicion,” said McSorley, who explained that while US officers are not allowed to arrest anyone, they can liaise with Canadian border officials who can take further steps.
Others fear a provision in the legislation would also permit Canadian officials to bar Canadian permanent residents – who legally hold the same right as Canadian citizens to return to Canada – from re-entering Canada through preclearance areas.
The legislation would allow Canada to establish its first preclearance areas in the US.
In those cases, permanent residents would need to re-enter Canada through a land crossing, McSorley explained, incurring financial costs and additional anxiety.
“If you’re a permanent resident who’s rejected on security reasons … and then you’re in the US, is that going to be grounds for suspicion in the US?” he said.
“There’s not any explicit limitations on whether or not that information – that you’re being rejected from a preclearance area – isn’t going to be shared with US officials at the airport.”
Ottawa has pledged that US preclearance procedures will be consistent with Canadian law, including the Canadian Charter of Rights and Freedoms.
But according to the Canadian Muslim Lawyers Association (CMLA), Canadians will have very little recourse to hold US preclearance officers or the US government accountable for breaches of their rights under Bill C-23.
The law “provides explicit blanket immunity” to US preclearance officers “from anything done or omitted” in the exercise of their powers and duties, the association stated in a recent report, while the US government is also immune, except in cases of death, bodily injury or property damage.
“Travellers have no actual mechanism through which they can hold [US preclearance officers] or the United States accountable for breaches of their rights under the Charter, including discrimination,” the CMLA said.
It added that “this level of immunity is not new and unlikely to be changed by further negotiations” with the US.
McSorley echoed those concerns about a lack of accountability.
“The fact that there’s no recourse if anything does happen … is what really concerns us,” he said.
“We don’t want to see these new powers, but at least, if they’re granting new powers, there should be a clear way for a Canadian to seek a legal remedy if they feel that their rights have been violated.”
Underpinning most of these concerns is also a question about whether Bill C-23 is necessary in the first place.
The law “unnecessarily and unjustifiably sacrifices the rights and liberties of Canadian travellers”, representatives of the Canadian Bar Association recently wrote.
The group added that the benefits of the free flow of goods and people between Canada and the US does not need to “be gained at the expense of Canadians’ rights”.
McSorley agreed, pointing to the fact that preclearance laws have existed between Canada and the US in some form for the last 60 years and have caused few problems.
“Why do we actually need to see any changes?” he asked.
“We tend to lean towards not granting more powers when they’re not necessary.”