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Focus: Lawyers unhappy with preclearance bill

|Written By Gabrielle Giroday

Three Canadian Bar Association sections have flagged concerns with a federal bill aimed at boosting trade and speeding up the pre-clearance process. Bill C-23, Preclearance Act, 2016, has its genesis in an agreement announced in March 2015 between then-American president Barack Obama and then-Canadian prime minister Stephen Harper.

The bill seeks to give greater powers to U.S. Customs and Border Protection officers currently working in preclearance areas at some Canadian airports and a ferry terminal, and it could be applied to travel by rail, marine and land.

However, lawyers have spoken out about parts of the bill as it winds its way through the parliamentary process, and the CBA’s National Immigration law, National Criminal Justice law, and National Commodity Tax, Custom and Trade Law sections have presented concerns about the bill in a submission to government.

The CBA submission says the bill contains “potential inconsistencies with the Canadian Charter of Rights and Freedoms” and that it grants “powers of detention, search, seizure, forfeiture and use of force to preclearance officers without ensuring appropriate limitations.”

“Several recent developments give rise to serious concerns about how the significantly expanded powers of U.S. officers operating on Canadian soil could be exercised,” said the submission.

“We therefore urge the government to engage in full consultations, and an extensive review before enacting this legislation that is so highly intrusive on personal liberties and rights.”

Michael Greene, senior partner at Sherritt Greene Barristers & Solicitors in Calgary, recently appeared before the House of Commons Standing Committee on Public Safety and National Security in support of the CBA’s submission.

Part of the worry is what will happen with travellers who decide to withdraw from questioning by an officer, he says.

“The CBA has some serious concerns with what is contained in the legislation, because what it does is that it changes it from an entirely voluntary process to one where you can’t just walk out,” says Greene, who is past national chairman of the CBA immigration law section and currently a senior advisor to the national executive.

“Specifically, they can question you [to] establish your identity and to determine the reasons for your withdrawal, and that’s a problem we have.”

Greene says that, under the proposed bill, a person could be detained and questioned for not answering a question from an officer, and goods such as electronic devices could be seized.

“Really, the right to withdraw is . . . not absolute at all; it’s far from absolute,” he says.

“Our concern is that they’ve completely changed the nature of the whole preclearance process.”

Howard Greenberg, national practice leader for immigration at KPMG Law LLP, also says he’s concerned about different aspects of the bill.

“The number one issue that’s gotten the most play is the ability for a traveller to withdraw from a preclearance area [and] simply tell an officer that he or she no longer wishes to participate in questioning,” says Greenberg, a Toronto-based lawyer who is also a past national chairman of the CBA immigration law section.

“The scenario that we see playing out is that an individual is asked reasons [for withdrawing], and the individual gives a reason, and then the officer doesn’t believe the reason or follows up with more questions or it becomes a much more in-depth discussion about who the individual’s friends are or other aspects of the individual,” he says.

“And then the individual says, “Look, enough, I’m leaving.’

“And the officer says, ‘No, you’re not, because you haven’t met your obligation, you haven’t given me a proper reason for your departure and you haven’t followed my instruction,’ and failure to follow an instruction is an offence under the act — an arrestable offence.”

This could lead to a problematic situation, says Greenberg, where a person isn’t sure if they’ve met their legal obligation and it’s unclear what the legal standard is for responding to a question.

“Is it simply providing any information or is it information to the satisfaction of the preclearance officer?” he says.

“So that’s been a major concern.”

However, Scott Bardsley, press secretary for Ralph Goodale, the federal Minister of Public Safety and Emergency Preparedness, said the bill “will enable more preclearance services at more locations across Canada and in more modes of transportation, making travel faster for Canadians and bolstering trade, while also better protecting our rights.

“For Canadians, it’s a distinct advantage that preclearance puts entering the U.S. in a Canadian context where Charter standards apply to U.S. preclearance officers’ exercise of powers under Canadian law,” he said in an email statement provided to Law Times.

“From the Canadian perspective, preclearance allows all necessary customs and immigration inspections to be completed before departure, while the traveller is still in Canada, and the powers that U.S. border officers exercise under Canadian law are governed by the Canadian Bill of Rights, the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms.”

Greenberg says a potential solution identified within the CBA submission to the federal government was that a person could provide their reasons for withdrawing in a written statement to a preclearance officer.

“The Americans, of course, want to record that information in their database, and then it will be available to every port-of-entry officer around the world when that individual tried to re-enter the United States. So it gives them better information and it gives them clarity as to what a traveller is obliged to do,” says Greenberg.

“But under the current legislation — the proposed legislation — it’s entirely ambiguous, and so the legal standard is not well understood.”  

However, Bardsley contends that presenting a written statement instead of verbal questioning wouldn’t work. The statement provided by Bardsley said officers “need the authority to ask travellers for clarification to maintain security and control over the border.

“If a traveller wishes to withdraw from a preclearance site in Canada and not proceed with their travel plans, they may do so, but American officials will be legally entitled to question them to establish identification and the reason for their withdrawal,” said the statement.

“The objective here is to avoid illicit ‘probing’ of preclearance sites — which happens periodically — by those who are trying to detect weak points or deficiencies. This authority can only be exercised to the extent that the traveller is not subjected to ‘unreasonable delay.’”

Greenberg says that, lately, questioning of people at the border has been more thorough and comprehensive than it’s ever been.

“I think it’s absolutely critical that legislation be clear, that individuals understand their conduct and when their conduct becomes criminal, or quasi-criminal, and officers who are applying the legislation have a clear understanding as to how they conduct themselves under Canadian law, on Canadian territory,” he adds.

Henry Chang, partner at Blaney McMurtry LLP in Toronto, says he is also concerned that people could potentially be detained or criminally charged for not answering questions by preclearance officers.

“I guess I am very disappointed that we as Canadians are giving away our sovereignty, because this is Canadian soil, and I don’t see the Americans doing this for us,” he says.

Bardsley said a clause-by-clause consideration of the bill is scheduled to take place June 14 at the Standing Committee on Public Safety and National Security.

The bill has also come under fire from critics over concerns American officers could conduct strip searches if Canadian officers are not available.

“In the most rare circumstances, where Canadian officers are unable to respond or decline, the American officers may proceed to conduct the search but subject to the same legal, human rights and constitutional safeguards as would apply to Canadian officers,” said the statement from Bardsley.

“Travellers will be duly informed of their rights beforehand, including their right to legal counsel and the right to appear before a senior officer. Any such searches undertaken by a U.S. border officer would be subject to stringent reporting requirements and close scrutiny by both countries.”

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