Bill C-23 Would Let U.S. Detain Canadians On Their Own Soil

Bill C-23 Would Let U.S. Detain Canadians On Their Own Soil

If you were looking for a pulse check on the future of North American policy, a Canadian border security bill would seem like an unlikely place to look. Nevertheless, the controversy surrounding the passage of bill C-23 in Canada’s parliament this month can be taken as a litmus test for relations between the NAFTA countries.

C-23 was a bill initially proposed last year, based on a reciprocal customs agreement signed in 2015 by then-President Obama and then-Prime Minister Stephen Harper. The goal was to increase the capacity for preclearance in travel between the two nations, and the United States ratified its version of the bill in December 2016.

However, the Canadian half of the deal has been stalled in parliament since June of last year and shows no sign of gaining steam.

 Preclearance refers to the process by which Canadians can be screened by American customs in advance on Canadian soil, and vice versa. For the millions of travelers between the two nations every year, this represents a significant speeding of transit after post-9/11 security measures were put in place in airports around the world. It allows travelers to avoid long customs lines upon landing.

There are concerns now that the bill’s provisions to allow American customs officers to search and detain passengers, in addition to a clause permitting them to carry firearms, are a violation of Canadians’ charter rights. While the bill does not provide customs officers with peace officer status, that is, the ability to make arrests, it does allow them to detain passengers until Canadian law enforcement can arrive.

This contravenes a previous stipulation that Canadians had the right to remove themselves from an American customs screening consequence free. They could simply state that they had chosen not to fly and that was the end of it. Under C-23, that rule has changed.

Immigration lawyer Michael Greene has objected to the bill on the grounds that it compels Canadians to finish their interview with U.S. customs, effectively making them detainees. He said, “In a compelled [examination], you don't get a choice. You have to answer questions. If you don't, that is an offence, it's a federal offence. It becomes an offence under Canadian law, failing to cooperate with a U.S. officer." (via CBC)

The criminality of non-compliance is what has Canadian opposition parties spooked. Member of parliament Michael Dube, the head opposition immigration critic, spoke to reporters and said the following: "[The bill] does not address Canadians' concerns about being interrogated, detained and turned back at the border based on race, religion, travel history or birthplace as a result of policies that may contravene the Canadian Charter of Rights and Freedoms. What we're seeing right now is a reality where people are being discriminated against at the border. Given that reality, we have serious concerns about these new, extra powers being given to American agents." (via HuffPost)

While Prime Minister Justin Trudeau maintains that it is safer for Canadians to pass through U.S. Customs in Canada, where they are subject to and protected by Canadian law,  an opposition amendment to kill the bill has been put forward this month. Though no one in the government has said this in so many words, Michael Greene put it very succinctly, “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.” This appears to make many Canadians nervous.

The fear among opposition parties and among many Canadians is that they are uncertain about what kinds of prejudices will extend to the screening process, and whether or not they can be truly safe in the hands of an American customs official. While the bill contains a clause prohibiting “unreasonable” detention, there is little consensus and no stipulation in the bill itself about what might constitute unreasonableness.

While it is likely the bill will pass with some revisions, the stalling in parliament and uproar around its content speaks volumes about the state of affairs between the world’s two closest allies and trade partners. Before Trump’s election this bill was slated to pass without incident in an early session of parliament, now it has become a poster issue for Canadian sovereignty in the face of what many see as racist U.S. foreign policy.

It seems hard to disagree – for the over one million Canadian muslims, the growing refugee population, and those Canadians of middle-eastern descent, there is no doubt that a border crossing to the U.S. has become unthinkable. In Canada, that population and their votes matter, and the government is not going to allow America to persecute them on Canadian soil.

And while I’m sure this will effect few Americans, with most of the Trump-voting contingent probably preferring that these travelers stay out, these developments mark a sad moment in the history of Canada-U.S. relations. These border talks and broader preclearance were supposed to mark a rapprochement between the two nations, symbolizing shared values and security concerns. Now they represent a widening gulf between America and its closest ally, and that ought to be cause for concern for anybody.