For some time now, I have warned Canadians about the dangers of Bill C-23, also known as the Preclearance Act, 2016. Many other Canadians have expressed their concerns to the Canadian government as well.
Unfortunately, our voices apparently fell on deaf ears because Bill C-23 received Royal Assent on Dec. 12, 2017. In other words, United States Customs and Border Protection (USCBP) officers working at preclearance operations in Canada will soon be in a position to exercise greatly expanded powers on Canadian soil.
Given the controversy surrounding this new legislation, I fact-checked some of the claims made by the Canadian government in support of Bill C-23.
The Charter of Rights and Freedoms (and other laws) will protect Canadians
This is false.
As the media has reported, Prime Minister Justin Trudeau personally defended Bill C-23 by claiming that the Charter of Rights and Freedoms would protect Canadians. He stated the following, "When you're doing preclearance in Canada, the Canadian Charter of Rights and Freedoms and Canadian laws are in place, so there is extra protection when Canadians go through American customs in Canada because they are protected by the Charter on Canadian soil."
Clearly, the language of Subsection 11(1) suggests that preclearance officers located in Canada will be required to act in accordance with the Charter. However, it is unlikely that Charter rights could ever be enforced against USCBP officers or the United States government.
The language of Subsection 39(2) makes clear that no action or civil proceeding may be brought against a preclearance officer in respect of anything that is done or omitted in the exercise of their powers or the performance of their duties and functions under Bill C-23. Subsection 39(1) also makes clear that such actions or civil proceedings must instead be brought against the U.S. directly, and only if the U.S. is not immune under the State Immunity Act.
Civil proceedings based on a preclearance officer's alleged violation of Canadian law will be severely limited.
The State Immunity Act provides that, unless it consents, a foreign state is immune from the jurisdiction of any Canadian court except where the proceedings relate to: any death or personal or bodily injury, or any damage to or loss of property that occurs in Canada.
As a result, civil proceedings based on a preclearance officer's alleged violation of Canadian law will be severely limited. For example, the U.S. would be protected against a Charter violation involving a warrantless search of a traveler's electronic device or discrimination based on race, religion, country of origin or sexual orientation.
Even criminal conduct by a preclearance officer may not be protected by Canadian law. Section 62 amends the Canadian Criminal Code so that if a preclearance officer is charged with a criminal offense (for example, sexually assaulting a traveller), the U.S. government may give notice of its intention to exercise primary criminal jurisdiction over the matter. If this occurs, any Canadian proceeding against the preclearance officer will be stayed and the alleged victim must rely on the U.S. criminal justice system for relief.
Bill C-23 will offer better protection
This is also false.
As the media has reported, Trudeau justified Bill C-23 by claiming that it would offer better protections to Canadians. He stated the following, "If we didn't have preclearance in Canada, people would be passing customs in the United States, and in the United States American laws dominate and control the behaviour of people in border crossings."
The Prime Minister is correct when he says that USCBP officers along the Canada-U.S. land border have greater powers to search, question and detain travelers; this is true because they are located on U.S. soil. However, this does not justify giving more of these same powers to preclearance officers in Canada.
The Prime Minister's claim would only make sense if Canada did not already have preclearance operations in Canada, or if the Canadian government's failure to pass Bill C-23 would result in the closure of all existing preclearance operations in Canada (this will clearly not occur.)
The fact is that U.S. preclearance already takes place in most major airports in Canada (Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg) without preclearance officers possessing the expanded powers contemplated by Bill C-23.
The new powers will rarely be used
This is also false.
As the media has reported, when speaking to the Senate Committee, Public Safety Minister Ralph Goodale claimed that the expanded powers granted to preclearance officers would rarely be used. Unfortunately, based on what often occurs along the Canada-U.S. border, where USCBP officers already have these expanded powers, the risk of abuse is certainly a significant one.
The media have reported on instances of Canadians being questioned more aggressively, or being detained/denied due to their country of origin or sexual orientation. If preclearance officers in Canada are given greater powers approaching those that USCBP officers already possess at the land ports of entry, they are more likely to act in the same manner, especially if aggrieved travelers have no legal recourse against such conduct.
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Why did the Canadian government make these misleading claims?
The Canadian government likely made the above claims because it wanted Bill C-23 to become law. There is no doubt that the expansion of U.S. preclearance operations in Canada is of significant benefit to Canada. However, one wonders if the price that Canada paid was just too high.
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