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Proposed New Preclearance Act Will Bring Border Trouble

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In recent days, concerns around the impact of Bill C-23 (also know as the Preclearance Act, 2016) have been back in the news.

In 2015, the Canadian and US governments signed an agreement to expand border preclearance.

Proponents say preclearance will facilitate the flow of people and goods between the US and Canada. Under preclearance, a traveller passes through US customs in Canada, so they do not need to do so once they enter the US, and vice-versa. There are US preclearance areas in eight Canadian airports, along with some train and ferry crossings in BC, and plans to expand this to more Canadian airports and train stations. Canadian preclearance zones would also be established for the first time in the United States.

There are serious concerns, though, that such preclearance zones give foreign officers too much power in both Canada and the US. This ranges from compelling answers from travellers, to sharing the information collected with multiple branches of government, to denying permanent residents direct entrance to their country.

Bill C-23, introduced by current Public Safety Minister Ralph Goodale in June 2016, would replace the 2001 version of the Preclearance Act. While it may speed up border crossing for some, it poses threats for others.

Regarding US preclearance areas in Canada

The right to withdraw from preclearance

The Preclearance Act, 2001, allows individuals to withdraw from the preclearance process at anytime. They would not be allowed to enter the United States, but neither would they be required to remain in the preclearance area, answer any further questions or provide a reason for withdrawing.

There are many reasons why people would want to withdraw. For example, if a border guard begins asking personal, leading or offensive questions (as many Muslims and people of color have already reported at the border), one could simply decide to leave the pre-clearance area.

Under Bill C-23, however, travellers who wish to withdraw would be compelled to continue answering questions, including the reason for requesting to withdraw from the process. A traveller who has not yet presented photo ID before requesting to withdraw would be forced to either provide photo ID, or agree to have their photo taken. The bill says that such questioning should not unreasonably delay the traveller (to avoid them missing their flight, for example), but "reasonable" is not defined in the law and such discretionary power could lead to abuse.

The new legislation also removes a provision stating that a decision to withdraw is not grounds for suspicion of wrongdoing. Instead, an act of withdrawal would now be almost by default viewed as suspicious and justification for further questioning.

At any point, should the preclearance officer suspect an offense (say, simply because you asked to withdraw), they would be able to frisk or strip-search an individual, and visually inspect (although not enter) the vehicle they are traveling in. If officers then believe there has been an infraction, they can detain the individual -- even if they no longer wish to enter the United States - and transfer them to Canadian authorities.

Privacy

Changes to language around privacy protection are also of concern. Under previous legislation, there were stronger rules specifying that passenger information must only be used in the enforcement of the Preclearance Act; that the information must be destroyed within 24 hours after an officer obtains it (unless the information is "reasonably required" for the enforcement of the law); and that a preclearance officer must take "reasonable measures" to protect passenger information from unauthorized use or disclosure (Section 32.1 and 32.2)

However, the new legislation removes these rules, and simply states that:

33 (1) No person is permitted to disclose or use information obtained from a traveller after their withdrawal from preclearance except for the purpose of maintaining the security of or control over the border between Canada and the United States or as otherwise authorized by law.

While this appears to set limitations, under Bill C-51 new rules were established allowing for much greater sharing of information related to national security between Canadian government agencies. So a caveat such as "otherwise authorized by law" opens the door for collected information to be shared widely.

For Canadian preclearance in the US

Travellers must comply

Travellers in a Canadian preclearance area in the United States would also be required to answer any questions a preclearance officer has for them, including the reason for withdrawal, and must "comply with any other direction made by a border services officer that such an officer is authorized to make" under US law.

Just as Canada sets the rules regarding what actions US preclearance officers can take, the US can set the rules of what is required when someone withdraws from a Canadian preclearance area.

In Canada, but not in Canada

Under C-23, when you enter a Canadian preclearance area, you have entered Canada for the purpose of customs and duty. However, it doesn't count as entering Canada for the purpose of the Immigration and Refugee Protection Act, including applying for asylum. Those looking to apply for asylum will continue to need to apply upon entry into Canada, and current agreements do not allow for a refugee to apply for asylum in Canada from a US-Canada port of entry, unless under exceptional circumstances (i.e. having family already in Canada).

Denying permanent residents re-entry

The new law would also allow preclearance officers to deny permanent residents re-entry into Canada. If a permanent resident seeks to return to Canada via a preclearance area, the officer could deny them entry based on regulations to be set by the Prime Minister and Cabinet. The permanent resident would then be required to proceed to a land crossing to enter Canada. This could mean, for example, that a permanent resident who intends to fly from Arizona to Canada would now need to find ground transportation to the Canada-US border (after having already purchased a plane ticket).

Conclusion

Preclearance may appear as a way to facilitate and speed up cross-border travel. Current provisions of Bill C-23, though, would lead to the erosion of rights of people travelling both to the United States and Canada. Already, the ill-fated US Muslim ban and restrictions on refugees have lead to a tightening of the US border. Muslim and Arab Canadians have reported multiple instances of being refused entry at the border. To force individuals to stay when they wish to withdraw, to remove the presumption that withdrawal is not grounds for suspicion, and to remove privacy protections threaten the rights and freedoms of travellers all the more.

In line with that, the possibility that permanent residents of Canada would be turned away when trying to take a flight home from the United States, especially at a time when travellers in the United States are facing significant discrimination, should be seen as a violation of a permanent residents' fundamental rights.

Special thanks to the work of the Canadian Bar Association, S.K. Hussan of No One is Illegal, Safiah Chowdhury of the Islamic Society of North America and my colleague Anne Dagenais Guertin, whose comments on C-23 helped shape this piece.

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