Naturally, I'm very pleased to be back with the committee to discuss this very important topic.
This is the system that, for 60 years, has allowed travellers in Canadian airports to go through American customs in Canada.
Pre-clearance allows Canadian travellers to get through the process of American customs and immigration while they remain in Canada. It saves travellers from having to wait in long customs lineups once they arrive in the United States. It enables direct flights to U.S. airports that would otherwise accept only domestic travel, and it allows Canadians to complete American border procedures before departure while they are still under the umbrella of Canadian law and the Canadian Constitution.
In a nutshell, preclearance is good for travellers, for business, for tourism and the Canadian economy in general.
The advantages of pre-clearance are currently available to travellers at eight Canadian airports: Vancouver, Calgary, Edmonton, Winnipeg, Toronto Pearson, Ottawa, Montreal, and Halifax. What we're trying to do is to make these advantages available to more Canadians in more parts of the country, beginning with Jean Lesage airport in Quebec City, Billy Bishop airport on Toronto Island, and train routes out of Montreal and B.C.
We'll also be upgrading the limited operations that now exist at certain cruise ships and ferry terminals along the B.C. coast into full pre-clearance. We'll be pursuing the pre-clearance of cargo, and the implementation for the first time of Canadian pre-clearance operations in the United States for passengers moving in the opposite direction. To get this done, both Canada and the United States must agree to the terms of the expansion.
After several years of negotiation, the agreement was finalized in the spring of 2015. It was tabled in Parliament at that time. Legislation to implement it was adopted by the United States last year with unanimous bipartisan support. It is now up to Canada to enact our own implementing legislation, so that the expansion of pre-clearance and the benefits it brings can move forward. We introduced the legislation in June of last year and it is now, I'm happy to say, before your committee.
I know that certain concerns have been raised about Bill , both in the media and in the House at second reading, so I want to take a few moments to address them, and I hope correct any misconceptions that may exist. To begin with, the new framework established by Bill is generally quite similar to the one that already exists under the pre-clearance arrangement that predates the current one back to 1999. Under both the old agreement and the new one, for example, U.S. officers in Canada may question travellers, examine and seize goods, and conduct frisk searches. Under both the new agreement and the old agreement, U.S. officers may detain a traveller if there are reasonable grounds to believe that he or she has committed an offence, with the requirement that the traveller be transferred to Canadian custody as quickly as possible. U.S. officers do not have that power of arrest.
Where there are differences between what exists now and Bill , they are relatively minor. For example, under both Bill C-23 and the current framework, U.S. officers may detain a traveller for the purpose of a strip search and they must request a Canadian officer to conduct that search. The only distinction under the new legislation is that an U.S. officer could conduct the search themselves in the unlikely event that a Canadian counterpart is not available, and there are strict rules around the search procedure.
With regard to withdrawal from a pre-clearance area, both Bill and the current framework allow travellers to withdraw. The only difference is that under Bill a traveller could be asked who they are and why they are leaving the pre-clearance area, in order to prevent people from entering pre-clearance areas in a casual way to probe for security weaknesses and then trying to depart from that area undetected.
Bill is clear. Once travellers have declared their desire to withdraw, an officer may not unreasonably delay them. To understand this provision, it's important to keep in mind that the concept of reasonableness is used very widely in Canadian law; for example, section 8 of the Charter of Rights and Freedoms protects against “unreasonable search or seizure”, the Customs Act requires that the search of newly arrived travellers be conducted “within a reasonable time”, and the Criminal Code says that a person who is arrested “shall be taken before a justice without unreasonable delay”. Generally, courts have understood reasonableness to mean that other people in the same situation would be expected to reach the same conclusion, or behave in the same way.
With respect to officer authorities, the term has been used to refer to generally accepted standards. In fact, when the existing pre-clearance law was being debated back in 1999, the NDP, at that time, argued in favour of adding the word “reasonable” to the section on the use of force as a way of limiting officer authorities. In other words, far from being vague or a licence for abuse, the requirement that travellers not be unreasonably delayed imposes a standard that is familiar in law and familiar to the courts. The bottom line is that travellers who wish to leave a pre-clearance area will be free to do so after answering a few basic questions about who they are, and why they are leaving.
Another concern that has been raised, both in the House and the media, has to do with whether eventual Canadian pre-clearance operations in the United States would complicate boarding in the United States for people who are permanent residents of Canada. The answer in almost all cases is, quite simply, no. Permanent residents would be treated exactly according to the same procedure in the pre-clearance areas as they would at any other point of entry into Canada. The rare exception would be for a permanent resident with a major issue of inadmissibility such as serious criminality. Such individuals could still come to Canada, subject to the usual admissibility rules at an ordinary point of entry, but they may not be able to benefit from pre-clearance because Canadian pre-clearance areas at U.S. locations would not necessarily be equipped to deal with serious criminal cases.
I'm also aware of questions as to whether Bill might limit the use of technologies that help reduce wait times at the borders, such as automated passport control kiosks and mobile passport control applications. To be clear, our government is supportive of these technologies, and Bill C-23 does not restrict their use outside of pre-clearance areas.
With respect to the authorization to carry weapons, U.S. officers would only be authorized to carry the same weapons and the same restraints as Canadian officers do in the same environment. For instance, because Canadian border officers do not carry firearms when dealing with passengers in airport terminals, neither would American officers. The same rules apply both ways. This is part of the principle of reciprocity in the pre-clearance agreement, which also gives Canadian officers the same authorities in this regard as U.S. officers on American soil. In addition, Bill maintains that very strict limit on the use of force by pre-clearance officers that currently exists.
The pre-clearance agreement also stipulates that pre-clearance in both countries shall be conducted in a manner consistent with the laws and constitutions of both countries. This is really the fundamental point. The expansion of pre-clearance means more Canadians will be able to benefit from charter protections when they are crossing the border. Today a Canadian flying from Quebec City or taking the train from Vancouver to the United States must subject themselves entirely to American customs and immigration procedures on American soil, with no Canadian legal or constitutional framework.
This bill is essential to changing that. There will be more people at more locations, travelling in more modes of transportation, who will have the opportunity to pre-clear before they depart—in other words, while they are still on Canadian soil and under the umbrella of Canadian law.
I'll conclude on one final matter. At second reading the New Democrats moved an amendment to reject this bill, notably on the grounds of what the amendment called “the climate of uncertainty at the border”. Let's be clear. Some 400,000 people cross that border on a daily basis, almost entirely without incident. Interestingly enough, statistics show that fewer Canadians—not more, but fewer—are being denied entry to the United States this year compared with last year. Nevertheless, I have met with the Secretary of Homeland Security and underscored my expectation, and I think the expectation of all Canadians, that travellers headed in either direction should be treated fairly, respectfully, predictably, consistently, and in accordance with law.
In fact, it is precisely with legislation like Bill that we can best reduce uncertainty for travellers. It establishes a clear legal framework that requires U.S. officers to adhere to Canadian standards when they are applying Canadian law, not just in the eight locations where pre-clearance currently exists but at many sites and in as many modes of travel as possible.
Ultimately the expansion of pre-clearance will make travel—and shipping, hopefully—to and from the United States faster and more efficient. It will provide significant benefits to the Canadian economy, it will enhance the protection of travellers' rights and freedoms, and it will only happen once we pass this bill.
Thank you, Mr. Chair.
Thank you very much, Mr. Picard.
The border between Canada and the United States is a remarkable institution. It's not without controversy sometimes, or difficulties, and we should always work very hard to reduce those controversies and difficulties to make the border work even better.
As I mentioned in my remarks, there are 400,000 people who go back and forth across that border every single day. In addition to that, there's $2.5 billion in trade, two-way trade, that goes back and forth across that border every single day. That is a huge and valuable relationship. It is, I think it's fair to say, the longest non-militarized, most successful boundary line in the history of the world. It works for Canada, it works for the United States, and it needs to be safe and secure. It also needs to be efficient and expeditious.
Pre-clearance is one of the tools by which we can accomplish all of those objectives: safe, secure, efficient, and expeditious. We have it at eight airports at the moment for air travel moving south into the United States. What this agreement and this legislation seeks to achieve is to make it available in all modes of transportation, not just air, but make it available at a great many more venues and locations across the country, and make it available in both directions.
While our focus has always been on passenger travel, I think you're touching on one of the great potentials here, and that is the expansion of pre-clearance to include cargo where, instead of waiting in some of those long lineups with big trucks trying to get across the bridges into the United States when there's a lineup at the clearance point, you could actually envision a situation where the goods are loaded onto the truck at the plant or the factory, the truck is inspected at that point and sealed, and then, once it has pre-cleared at the factory, it can just go across the border without any further examination. It will take some time to develop that kind of system, but the agreement and this legislation contemplates that, enhancing the cross-border trade.
I'm very pleased to have heard Secretary Kelly, in his appearance before a congressional committee a few weeks ago, saying that he thought the Canadian border was a good example of a situation that was working properly, and he wanted to see that border become thinner, not thicker. He had some very complimentary words about Canada, Canadians, the border service operation, and so forth. That's a positive thing.
I wouldn't want to leave the impression that pre-clearance in cargo can be achieved simply. It's a big project to undertake, but the legislation and the agreement behind it allow for that eventuality to come about.
Mr. Minister, thank you for being here today.
I would like to reply to the comments about our amendment. I would venture to say that the statistics on the numbers of people turned back at the border is cold comfort for those who feel dehumanized because of the colour of their skin or because of their religion. That is what we mean by a climate of uncertainty. Whether you like it or not, there is a perception, and it is extremely problematic.
I would also like to come back to the substantial issue in the bill. There is a lot of talk about the increased powers of the officers if someone leaves the preclearance area. I would draw your attention to subclause 33(1), which mentions information obtained from a traveller after their withdrawal from the preclearance area. It also reads: “otherwise authorized by law”. That is a concern. I would like to describe a hypothetical situation. We don't like doing that in politics, but I think it is important in order to illustrate our concerns and then to hear what you have to say about the matter.
Imagine that the President of the United States issues an order—as he has suggested in some media—that would allow the electronic devices of all travellers to be searched. Canadian case law is relatively silent on the matter of the rights Canadians have when they are asked for their passwords.
Recently, a decision was made and it rather favours security services. It does not favour the privacy of Canadians. You tell us that we are protected by Canadian law. But courts of law have already determined that our rights under the Charter are taken away in part when we cross the border.
Is that “otherwise authorized by law”? Do we consider that the President is “otherwise authorized in law” when he issues a directive to his officers to obtain information, that is to say, directives that exceed the limits of what someone who decides to leave the preclearance area can be asked?
Minister Goodale, it's good to see you. Welcome back, and a warm welcome to your senior departmental staff as well.
Minister, on previous occasions you've characterized the task at hand for the field of public safety, for this committee, and for your work, as not trading off rights versus security, and as the need to do both—to be good on security and to fully protect Canadians' rights, including charter rights.
In this case, there is a third spoke in the wheel, which is trade and the movement of people. It's about business. It's about tourism. It's about family relationships across the border. In my own reading, I discovered that in terms of pre-clearance, the cross-border relationship takes us back to 1952, some 67 years ago. While not all years had an agreement in place, it's certainly a relationship that operationally is deep and of long standing.
As you know, the committee travelled to Washington and, from our perspective, we want to echo the sentiments you described on the part of Secretary Kelly, which is really very positive feedback from congressional counterparts and also the DHS staff as to the nature of the border as it currently stands.
I want to ask you if you or the department have any statistics on the rate of incidents of withdrawal? You mentioned withdrawal from the process as one alternative to subjecting oneself to U.S. screening that one may disagree with. How many times has that actually happened? Do we have any numbers on that?
Minister, it's always great to have you here, and thanks to staff for coming.
I think the issue at hand, pre-clearance, has been covered fairly well, and I'm fairly comfortable that we're heading in the right direction there.
However, Minister, screening in general is something that came up in another avenue, and it's to do with the safe third country agreement. I think everyone is aware of the illegal immigrants, illegal refugees, whatever you want to call them or term them, who are entering, basically at will, especially in Emerson, Manitoba, and in Quebec, and I'm sure in other parts. It's probably going to get worse.
Minister, when CTV first publicized it, my phones were inundated with people. Basically what it looked like was that instead of the RCMP saying, “Look ma'am, look sir, you're not crossing here. I'll have to turn you back”, or even directing them to a regular border crossing, if I can use that term, that never happened.
People can't get their heads around why security forces would be standing there and all but inviting them in. I guess on behalf of Canadians—and I'd like to know the answer too—why aren't they being turned around, or at minimum directed to head to the next border crossing? For example, with Emerson, Manitoba, I'm not sure exactly where that is from there, but I'm sure there's one that is not too many miles away.
My thanks to the minister, Mr. Bolduc, Ms. Wherrett and Ms. Watkinson.
My questions will be about part 1 of Bill , which deals with preclearance by the United States in Canada and with the powers of American officers in preclearance matters.
I am well aware that clause 9 could not be clearer: Canadian law applies. Subclause 10(2) stipulates as follows:
||[An American] preclearance officer is not permitted to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest that are conferred under the laws of the United States.
He just can't.
I am also well aware of clause 11, which tells us that an American preclearance officer on Canadian soil must work in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms. So I know all that. I am fully aware that a Canadian preparing to travel to the United States will have all his rights as a Canadian respected in a preclearance area on Canadian soil.
With all that, let me put my lawyer's hat on. In all humility, I can say that lawyers have a talent for finding tiny irritants. I have found one in subclause 22(4). Though we know that Canadians' rights will be respected, subclause 4 of clause 22, tells us the following about preclearance officers:
||A preclearance officer may conduct the strip search if they have reasonable grounds to suspect that the conditions under paragraphs (1)?(a) and (b) are still met …
This is the most intrusive kind of search, but he can conduct it if a border services officer declines to conduct it.
Subclause 22(2) says that, if an American preclearance officer wants a strip search to be conducted, he must ask a Canadian officer to do so. However, in paragraph 22(4)(a), we see that an American preclearance officer can conduct a strip search if a customs officer declines to do so.
There is nothing else in the paragraph. How is it to be interpreted? If a Canadian customs officer is present, sees that there are reasonable grounds but is not in agreement and will not strip search a person, how will things end up under this provision?
Mr. Arseneault, first of all, welcome to the committee. I think this is the first time we've had the opportunity to have an exchange.
The one change in this section compared with the existing arrangement is that if a Canadian officer cannot be reasonably available, then the American officer can proceed with the search.
There are two things about that. I have spoken with the chief executive officer, the president of CBSA, to make the very strong point that Canadian officers need to make themselves available. This legislation contemplates that kind of collaboration and service. If there is a problem, as I indicated earlier, you take this rule, apply it over the last 60 years and it's not likely that this problem would have arisen at all.
However, if it arises, then CBSA should respond—and quickly—to the circumstances to make sure that the spirit of the law is respected. If, in some very unlikely circumstance, the CBSA cannot respond, then the search could proceed, but it would be according to Canadian rules, not American rules. The provisions of the charter apply, and the respect for human rights, and so forth. As well, it has to be reported on after the fact so that the details, if necessary, can be fully examined.
We've tried to make sure there's a very strong fence built around this provision so that the rights of Canadians would not be affected in an undue way.
We're going to continue.
I was so excited to see our new MP here that I forgot to welcome our substitute analysts to the committee. Both Dominique and Tanya are away today, and they arranged to have substitutes. Lyne Casavant has been an analyst on this committee before, which is quite good for me because I remember her and she remembers me. Maxime, we don't know.
Welcome to Maxime Charron-Tousignant. Thank you for being here. It's a pretty easy gig today.
Thank you also to the officials for joining us. I don't believe there are any more presentations. You're here now for our questions.
Just to remind the committee who is here, we have from the Department of Public Safety and Emergency Preparedness, the acting ADM, Jill Wherrett. From CBSA, we have the vice-president of the programs branch, Martin Bolduc; as well as deputy executive director and general counsel, Julie Watkinson. From the Department of Transport, we have Tom Oommen. From the Department of Justice, we have Erin McKey.
We are going to continue.
Monsieur Arseneault, you will get another round now.