February 15, 2017 2:51 pm
Updated: February 17, 2017 10:55 am

Bill letting U.S. border guards detain Canadians could face legal challenges

U.S. President Donald Trump says he's not totally confident the Canada-U.S. border is secure.


A bill proposing to bolster the powers American border guards yield in Canada – including the ability to strip search and detain Canadians – could lead to legal challenges against the federal government, immigration experts are warning.

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Part of a bilateral agreement with the U.S., the bill, when passed, will grant American customs agents the right to carry weapons within Canada, perform body searches and detain – but not arrest – them.

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It will also allow U.S. agents to force a Canadian in a preclearance area, who has decided not to travel to the U.S., to stay in the area for questioning. Right now, that same traveller has the right to simply turn around and leave the area without action or consequence.

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“The inability to withdraw from preclearance is problematic,” said Howard Greenberg, an immigration lawyer in Toronto and certified specialist in immigration law.

“The legislation says you can’t be ‘unreasonably questioned,’ but there’s no definition of what that means … The way it’s written, the legislation is too ambiguous.”

Canadian laws will rule: minister

The so-called preclearance bill is part of the Beyond the Border agreement reached in 2015 between then prime minister Stephen Harper and U.S. president Barack Obama. The U.S. Congress passed its version of the bill in early December while the Canadian version, Bill C-23, has been idling in the legislative docket since it was introduced in June 2016.

The project has involved both Republicans and Democrats in the U.S., and the Harper and Justin Trudeau governments in Canada.

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Already, 12 million passengers go through preclearance at Canadian airports, eight of which have U.S. customs facilities. The latest Trudeau-Obama deal extended that to two more airports: Toronto’s Billy Bishop and Quebec City’s Jean Lesage.

Bill C-23 specifies that U.S. border guards operating on Canadian soil are bound to Canadian laws including the Bill of Rights, Charter of Rights and Freedoms and Human Rights Act.

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“Preclearance allows for the operation of customs and immigration procedures for travellers moving from Canada to the United States in Canada, and under Canadian law,” Public Safety Minister Ralph Goodale’s office wrote in a statement to Global News.

The minister has said the deal is fully reciprocal, extending the same powers to guards on both sides of the border, but the protection of Canadian law is a benefit Canadians should appreciate.

‘Everything changed with the election’

The agreement between Canada and the U.S. is part of broader efforts to speed up movement, slowed by security measures after the 9-11 attacks, without sacrificing security.

The move will allow travellers, in theory, to get screened more quickly, zip through the actual border, and ease the logjams that slow travel and commerce.

The latest Trudeau-Obama deal extended that to two more airports: Toronto’s Billy Bishop and Quebec City’s Jean Lesage and will allow the system to extend to trains and busses.

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Even if the U.S. election had gone another way the legislation would be concerning, but given U.S. President Donald Trump’s rhetoric on immigrants, refugees and border-hoppers, the concern is exponentially amplified, said Calgary-based immigration lawyer Michael Greene.

“Everything changed with the U.S. election,” he said in an interview. “Trump is talking extensively about banning Muslims and ‘extreme vetting’ at the borders.”

Already, Canadians have encountered problems travelling to the States, prompting Goodale on Tuesday to tell reporters he will have a chance in coming weeks to discuss any border “issues or tensions” with Homeland Security Secretary John Kelly.

READ MORE: NEXUS cards reportedly revoked in wake of Trump travel ban

In recent weeks, Nexus trusted-traveller cards of about 200 Canadian permanent residents were suddenly cancelled after Trump issued an executive immigration order banning visitors from seven largely Muslim countries, there have been several recent reports about minorities being turned away at the U.S. border.

“Say someone in a preclearance area is questioned about their religion or political views,” Greene said. “There’s potential in the bill for [U.S.] agents to engage in unconstitutional behaviours.”

Open to court challenges, but also change

Greenberg agrees the bill could be open to court challenges, but said it’s also open to changes.

“It’s going to need some tweaking,” he said.

“There needs to be a balanced approach. The U.S. is offering the privilege of preclearance, traded for something like more questioning – but at what point is it excessive?”

In separate interviews, Greene and Greenberg highlighted the same two perceived “major” problems with the bill and said those sections need some change.

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The first is, in the least, defining “unreasonable” in terms of how long a U.S. customs agent can question a traveller in preclearance should that traveller decide not to take their trip after all.

“At what point do questions turn into an interrogation? Why extend preclearance into an interrogation?” Greenberg asked.

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The second section both lawyers said needs tweaking is extending the right to strip search a Canadian to an American guard. Rather, the Canadian government should retain the current provision that only the Canadian Border Services Agency can take intrusive steps like a strip search, they said.

“The bill allows a U.S. border agent to conduct body searches even if a Canadian guard is not present or disagree with the U.S. agent’s assessment of the passenger,” Greenberg said.

Canadians will rarely face strip search by U.S. agent: minister

Greene pointed out American border guards are entitled to decide who enters their county.

“The concern is what they’re entitled to when they’re on Canadian soil,” he said. “Even if Canadian guards have the same powers, Canadians are less likely to take part in ‘extreme vetting.’”

Goodale’s office said any U.S. guard seeking a strip search is obligated to “immediately request” a Canadian officer conduct the search.

“CBSA will respond and would only decline under very, very rare circumstances,” the minister’s spokesman said.

“In such a case, they would be subject to the same legal requirements that apply to Canadian border series offices. Travellers will be informed of their rights beforehand, including their right to legal counsel.”

With files from The Canadian Press

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