While Canada and the United States share the longest, most open and successful international boundary in the history of the world, each country reserves its sovereign authority to regulate access. We each set and enforce our own rules. But we also each expect all our citizens to be treated fairly and border rules to be administered properly, in both directions.
Over the past two centuries, our two nations have learned the enormous value that flows from a strong border relationship. We both want that boundary line to be safe and secure. We also want it to be efficient and expeditious.
More than 400,000 people flow back-and-forth between Canada and the United States every single day. Close to $2.5 billion in two-way trade moves between us every day. In both commercial and personal terms, the relationship is enormous. And mutually beneficial.
One tool to help keep our borders secure and efficient is a program called “preclearance”. For travellers going from Canada into the U.S. by air, it has existed in one form or another for more than 60 years. It’s now available at eight Canadian airports—Vancouver, Calgary, Edmonton, Winnipeg, Toronto Pearson, Ottawa, Montreal and Halifax.
This service allows the traveller to “pre-clear” American customs and immigration inspections in Canada before they board their aircraft. Thus, when they land in the United States, they are virtually equivalent to U.S. domestic travellers with no further requirements to meet. No line-ups, no delays.
Travellers also gain the speed and convenience of being able to fly directly into any U.S. airport, not just those designated as international with customs and immigration facilities. For example, being able to pre-clear at Toronto Pearson nearly doubles the number of American destinations that are accessible directly from Toronto. That’s a powerful advantage. Over 12 million passengers from Canada benefit from air preclearance every year.
There is strong demand for an expansion of preclearance services, both in North America and around the world. So, for several years, Canada and the U.S. have been working on an updated legal and administrative framework. A new agreement was signed and tabled in Parliament in the spring of 2015. It lays the groundwork for an expansion of preclearance operations in both directions and in all modes of transportation (air, rail, marine and land) for both passengers and cargo.
The necessary legislation to bring the agreement into effect was enacted by the United States Congress at the end of last year. The corresponding law in Canada, Bill C-23, was introduced in the House of Commons last June and is now waiting Parliamentary examination.
Once the enabling regulations are in place, Canada and the U.S. have agreed in principle to start our preclearance expansion by adding the service at Billy Bishop airport on Toronto Island and Jean Lesage airport in Quebec City, as well as for train passengers from Montreal to New York and on the Rocky Mountain Railway in British Columbia. Services for the cruise ship business on the west coast will be regularized. And last week, both countries also committed themselves to move as quickly as possible on preclearance for cargo.
Better protecting travellers’ rights
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.
The alternative is waiting until after you arrive in the United States to clear customs and immigration. You would line up to get permission to enter that country under a process totally under U.S. control. There would be no over-arching international agreement, and no protection under the Canadian Bill of Rights, the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms.
It needs to be noted that our updated and expanded approach to preclearance is fully reciprocal. No right or power is conferred on the border officers of one country and not the other. 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.
Bill C-23 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.
ADDENDUM: Answers to Questions
To respond to a number of specific questions that some people have asked:
- OFFICERS CARRYING FIREARMS—Consistent with reciprocity, and to ensure the security of uniformed officers, the law authorizes preclearance officers to carry the same weapons and restraint devices that the host country’s border officers are permitted to carry in the same environment. This means that in Canada, since Canadian border officers are authorized to carry a firearm at land, rail and marine ports, American border officers would also be authorized to carry a firearm in these same environments. Generally, Canadian border officers do not carry firearms when processing passengers inside air terminals, so U.S. officers would similarly not carry firearms inside Canadian air terminals.
- SEARCHES— As international travellers know, the inspection process for crossing the border into another country may involve personal searches when necessary and appropriate. Bill C-23 lays out the rules in this regard at preclearance sites in Canada. If there are reasonable grounds to suspect that a search requiring the removal of clothing is necessary at a preclearance site in Canada, the American border officers must immediately notify their Canadian counterparts who always have the primary jurisdiction to conduct such searches. I have instructed the Canada Border Services Agency to respond promptly to all such situations. 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. 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.
- WITHDRAWING FROM A PRECLEARANCE AREA—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. 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”. The concept of “reasonableness” is well established in our jurisprudence.
- NO ARREST POWERS FOR U.S. OFFICERS—U.S. preclearance officers in Canada will not have the power to arrest or charge travellers. If the officer has reasonable grounds to believe a traveller has committed an offence under Canadian law, they are required to turn that person over to a Canadian police or border officer as quickly as possible.
We will listen carefully and respond to issues raised by Canadians as Bill C-23 begins to be debated and studied closely in Parliament. But here are two fundamentally important sections to keep in mind:
10 (2) A [U.S.] preclearance officer [in Canada] is not permitted to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest that are conferred under the laws of the United States.
11 A [U.S.] preclearance officer must exercise their powers and perform their duties and functions under this Act [C-23] in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.