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Canada defends a law that would give U.S. border agents more power on Canadian soil

The Canadian government defended a law immigration lawyers say gives American customs officials too much power to question, search, and detain travellers on Canadian soil.

The Canadian government is defending a bill that immigration lawyers say would give American customs officials too much power to question, search, and detain travellers on Canadian soil and would “devalue” the rights of permanent residents.

Bill C-23, which the Liberals are currently pushing through the legislature, is designed to expand and speed up a pre-clearance process already in place at eight Canadian airports that lets anyone travelling from Canada to the U.S. clear customs and immigration before boarding their flight.


The bill would also make the agreement reciprocal, stationing Canadian pre-clearance officers at some locations in the U.S., where a version of the bill was passed by both houses in December.

But lawyers are raising the alarm about a number of the bill’s elements, which they say should be scrapped entirely, especially given the current political climate in the United States. They also fear it’s potential effect on Canadian permanent residents, who have always enjoyed automatic entry into the country.

“Right now, a permanent resident who shows up at a border has to be admitted,” explains immigration lawyer Michael Greene. “Under the bill, [Canadian pre-clearance officers] have the power to turn people away at pre-clearance area, on the grounds, for example, that they’ve stayed away for too long.”

He said what was an “absolute right of permanent residence to be able to freely enter Canada” has been “devalued.”

Scott Bardsley, press secretary for Canada’s Minister of Public Safety Ralph Goodale, said permanent residents would only be refused entry under “very limited instances” and that they wouldn’t lose their status as a result. He said empowering Canadian pre-clearance officers with the ability to turn permanent residents away is necessary since they can’t detain people.

But that argument doesn’t hold up for Greene, who says a border services officer or police officer could easily meet the person allegedly violating their permanent residency when their flight lands in Canada.


In addition, critics say Bill C-23 further empowers American border officials in a troubling way. Current legislation allows anyone who becomes uncomfortable with how a pre-clearance interview is going with American customs officers to walk away freely and choose not to go to the U.S. altogether.

The new bill would take that right away, and allow American pre-clearance officers to question travellers to establish their identity and ask about their reasons for wanting to leave the interview.

The questions would be for “the purposes of maintaining security and control of the border, including protecting against false travellers probing the border for weaknesses,” Bardsley explained, adding it should not “unreasonably delay” the traveller — a term that lawyers point out has not been defined in the bill.

Bill C-23 would allow U.S. pre-clearance officers to strip search travellers if a Canadian border officer declines a request to do so. American officers will also start carrying the same weapons and restraint devices as their Canadian counterparts.

The issue of what powers are bestowed on border guards has taken new meaning in the wake of President Donald Trump’s executive order barring refugees and travellers from seven Muslim-majority countries. Although U.S. courts have suspended that ban, Greene notes a “change in attitude” at the border, with Muslims who aren’t from the seven countries being questioned for hours about their beliefs, their associations, and their feelings about Donald Trump.


“That is troubling because I’m sure the US border officials think this is reasonable questioning.”

The concern, he explains, is that if the ban is upheld, many situations could arise in which travellers find pre-clearance questioning offensive and want to withdraw.

“Do they take a chance, get charged, and hope they can beat it in court? Or do they stay there and continue answering questions?”

Pre-clearance is already in place at the Vancouver, Calgary, Edmonton, Winnipeg, Toronto Pearson, Ottawa, Montreal and Halifax airports. The government is hoping to expand the program to several other airports, as well as the train from Montreal to New York City and the Rocky Mountaineer rail service in B.C.

Bardsley said at preclearance sites in Canada, U.S. officers would have to operate in accordance with Canadian law, unlike ports of entry within the United States where those safeguards don’t exist, but Greene says “there’s very little accountability.”

“With everything that’s going on right now with this executive order and the problems people have been having at the border, lawyers are very concerned about making U.S. officers inside Canada even more powerful than they already are,” said immigration lawyer Chantal Desloges.

“They definitely need to make amendments for this bill before I as a lawyer would be comfortable with it,” she said. “The law that’s in place now was negotiated a long time ago, before we were dealing with the political climate that we are today.”