How Bill C-23 on Pre-Clearance Yields Too Much Power to U.S. Border Guards

How Bill C-23 on Pre-Clearance Yields Too Much Power to U.S. Border Guards

A controversial Liberal bill, Bill C-23, which has been popularly dubbed the Pre-Clearance Act, has received royal assent. It is set to officially become law.  

The Pre-Clearance Act relates to the powers afforded to U.S. border guards operating on Canadian soil. These border guards work in pre-clearance zones at Canadian points of departure to the U.S., like the Vancouver International Airport.

Bill C-23 seeks to replace and expand provisions of the previous legislation governing pre-clearance zones between the United States and Canada. In so doing, it will expand the existing powers of U.S. border guards and even add new ones.  

Under existing Canadian laws, U.S. border guards’ authority on Canadian soil is restrained. They are not allowed to carry side arms or strip-search Canadian citizens. Their powers to detain Canadian citizens on Canadian soil are also limited.

The new law, however, will allow U.S. border guards to carry side arms in pre-clearance zones where Canadian officials are also authorized to do so.  It will also enable them to conduct strip searches in circumstances where a Canadian officer is either unwilling or unable to do so.  

The language surrounding strip searches in Bill C-23 has attracted some criticism and concern for being overly broad.  

The use of the words “unwilling or unable” contemplates a wide variety of possible situations, many of which are beyond circumstances in which a Canadian official is simply unavailable. The language appears to authorize U.S. border guards to conduct invasive strip searches even in circumstances where Canadian officials would deem such action unnecessary or inappropriate. There are obvious human-rights concerns with respect to this portion of the bill.

Perhaps the most controversial aspect of the Pre-Clearance Act, however, is the expanded power to detain travellers granted to U.S. border guards under this bill.  

Once it passes into law, U.S. officials will be empowered to detain Canadian citizens who attempt to gain entry to the United States but subsequently change their minds prior to doing so. In simpler terms, this means that an individual being questioned byU.S. Customs and Border Protection staff would no longer be permitted to simply withdraw from the process if they felt uncomfortable or unwilling to continue.

They would be unable to leave the pre-clearance zone and abandon their intention to travel. Instead, they would be detained and investigated further by U.S. officials. 

Many Canadians have significant concerns about how these laws could impact them. The Iranian Canadian Congress, a nonprofit, nonreligious, and nonpartisan organization, wrote to our government when the bill was first introduced. The group cautioned about the very real implications that could be faced by religious, ethnic, and racial minorities once this bill passes into law. 

Private citizens have also expressed concerns, saying that this bill erodes the rights of Canadians while prioritizing American interests. 

And while Prime Minister Justin Trudeau and Public Safety Minister Ralph Goodale are well aware of the mounting controversy around Bill C-23, they stand strongly behind it in spite of public concern.  

Trudeau has defended the bill, saying that it must be passed in the best interests of Canadians and Canadian travellers. He has emphasized the safety and convenience of pre-clearance zones. He has said that these laws are necessary in order to uphold border security while also facilitating expedient, easy travel.  

But his assurances have been met with skepticism by many who are less concerned with convenience and more concerned with human rights. After all, Bill C-23 seems to compromise the rights of Canadian citizens on Canadian soil. It empowers foreign officials while eroding the rights and freedoms of our own citizens.   

Concerns about being interrogated, detained, or turned away at borders based on race, religion, ethnicity, or birthplace are only compounded by the fact that this law is being passed at a time when discriminatory practices at points of travel appear to be on the rise. 

This is particularly so given the volatile political environment south of our border. With President Donald Trump’s discriminatory travel bans still working their way through U.S. courts, the rights of many travellers to cross the border hang precariously in the balance—and nothing is certain…

Except the passing of Bill C-23.

Perhaps the only comforting aspect about this inevitable, impending law is the fact that Canadian citizens will still be afforded charter protections while in Canada. This applies to pre-clearance zones and any action taken by U.S. officials, who must conduct themselves in accordance with Canadian laws.  

However, this is a cold comfort for many who fear that Canadian laws are no longer on their side.

Link to the article in The Georgia Straight can be found here.