Proposed Legislation would give US Border agents in Canada new powers

US border guards could get potential new powers to question, search, and even delay Canadian citizens on Canadian soil under a new piece of legislation introduced by Public Safety Minister Ralph Goodale.  Bill C-23 would also grant the same powers to Canadian border within the bill.

The legislation would apply only those passengers who take part in a pre-clearance process.  This allows visitors to the US to clear Customs and Immigration before leaving the country.  It exists at eight airports, the port of Vancouver, and some BC-Washington ferry routes.  It will expand to the train station in Montreal for Amtrak’s Montreal- New York City route.

Critics say it takes away the passengers’ ability to walk out.  “A Canadian going to the U.S. through a pre-clearance area (on Canadian soil) can say: I don’t like the way (an interview is) going and I’ve chosen not to visit  your country (walk-out),” Calgary-based Immigration lawyer Michael Greene told the CBC.  Greene chairs the Canadian Bar Association’s citizenship and immigration section.

The new legislation would allow passengers to be forced to answer questions.  “First to identify themselves, which is not so offensive, but secondly to explain the reasons for leaving, and explain their reasons for wanting to withdraw,” Greene added.

Toronto based Immigration Lawyer Howard Greenberg says it raises the prospect of arrest because of a line of questioning.  “At some point, it may change from a situation where you’re simply responding to a question, to a situation where you’re failing to respond to a direction of an officer.  So the ambiguity is somewhat dangerous for the traveller,” he said.

Public Safety Canada argues that the legislation does place limits on the agents.  “The change is that once a traveller indicates their wish to withdraw,  pre-clearance officers would be authorized to exercise certain authorities, such as question the traveller as to their identity and reason for withdrawing,” Public Safety Spokesman Scott Bardsley told CBC News.  Bardsley continued, saying the new powers are to protect the border’s integrity, and “would not unreasonably  delay the traveller.

Greene argues the bill does not define what qualifies as an unreasonable delay.

C-23 Affects Physical Searches, sidearms

Only Canadian officers can conduct strip searches under current law.  C-23 would give US Customs’ officers the right to search if an officer is unavailable or unwilling to conduct a search.

Greene fears the standards it creates. “So you could have a circumstance where the Canadian officer says, No I don’t think a search is warranted here.  I’m not willing to do it.  But the US officer just says, ‘Fine, we’re going to do it anyway,” he said.

US officers will be able to carry side-arms while on duty in Canada if working in an environment where Canada Border-Services Agency Officers (CBSA) are normally armed.  Bardsley doesn’t says it won’t happen in airports, “given CBSA officers do not carry a sidearm when processing passengers,” he said.

What about Permanent Residents?

Under current legislation A CBSA officer can report permanent residents to Citizenship & Immigration if officers feel they are breaking the terms of their residency. The officer must allow the resident to enter Canada.

Bill C-23 grants a CBSA agent posted at a US airport the right to stop residents from boarding a plane.  This would force the resident to cross a land border where a right of re-entry would still apply.

The legislation was passed by the Senate, and House of Representatives in December.  Greene, and Greenberg disagree over how Donald Trump’s Presidency will affect the debate on C-23.  It was drafted by the Harper, and Obama administrations.

Greene thinks Canada should reconsider.  “They want to do their interdiction abroad because it’s easier to stop people from coming in if they don’t even set foot on American soil.  We get that.  But they are operating on our soil, so they do need to respect our rights in doing so,” he said

Greenberg agrees the law has its worrying aspects.  But he thinks the agreement might be the price Canadians have to pay to keep special status while entering the United States.

Bill C-23 is expected to pass during the current session of the House of Commons.