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C-23, Preclearance Bill, 2016 - Second Reading—Debate Continued


On the Order:

Resuming debate on the motion of the Honourable Senator Black, seconded by the Honourable Senator Mitchell, for the second reading of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States.

Hon. Serge Joyal: Honourable senators, I would like to speak to Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States.

I would like to underline how much I appreciated the speeches made by Senator Jaffer and Senator Pratte on this bill, because I am convinced this bill breaches the law and the Charter of Rights and Freedoms.

This is a very serious issue because, as you know, one of the key roles of our institution is to look carefully into a bill to make sure it is totally in sync with the law of Canada and the Charter of Rights and Freedoms. I will try in my plain words to explain to you why I came to that conclusion and what I suggest as an approach by the committee to try to remedy those breaches.

First, let’s put ourselves back into the context of this bill. This bill is the pre-clearance act. In other words, it is a bill whose objective is to facilitate transborder crossing.

We’ve had a Preclearance Act before. It was adopted in 1999. We were very attentive to be sure that that act respected the rights of Canadians and the law of Canada, and, of course, we do amend those laws regularly. But there are two specific aspects of this bill which I think need thorough consideration and amendment.

What is pre-clearance? I quote from the Canadian Bar Association’s brief to the committee in the other place:

Preclearance is, essentially, to allow a Canadian on Canadian soil to be examined by an American officer but always in full respect of the Canadian law and the Canadian Charter of Rights.

What I want you to keep in mind is that the passenger, the traveller, is on Canadian soil. I read the Canadian Bar Association quote on this very important point:

This approach recognizes that the traveller is on Canadian soil and entitled to minimal restrictions on freedom of movement.

It’s not because you passed a sign, as you do through the airport. I’m looking at my friend Senator Smith. When he travels to play golf in Florida, he will see the Statue of Liberty and the Star-Spangled Banner. When we pass that line in the airport, we are still on Canadian soil. We are not submitted yet to the American law.

This is very important. Keep that in mind. A Canadian on preclearance is on Canadian soil and is totally protected by Canadian law and the Canadian Constitution, the Canadian Charter of Rights and Freedoms.

But when you read Bill C-23, there is something there that is absolutely mind-boggling. I refer you to the report of the Privacy Commissioner, which was published on September 22. The Privacy Commissioner did something quite unusual. In the last year, from January 2016 to January 2017, he went through 552 individuals who were referred by the Canadian Border Service Agency to the American intelligence agencies as being target risks.


So what do we do? We, as Canadians, through the Canada Border Services Agency and the 60,000 travellers who are processed each day through the border, through our intelligence service, we identify, through algorithms — which are a criss-crossing of information — to come to profile somebody. We Canadians process those travellers through that system of gathering information, and of the individuals being identified as national security scenarios, we identify 552 individuals who are seen as target risks.

As a country, what do we do with that information — on you, on me, on anyone? We send that information to the Americans.

When the American pre-clearance officer looks at you, he has on his computer, which you don’t see, your evaluation as a security risk. If you happen to be one of those 552 individuals, what does he do? You’re a target risk for the security of the U.S.A.

What does he do then? He goes through the process, of course, of questioning you and uses all the powers listed in Bill C-23.

That’s your government passing to a foreign government — in that case, the United States — information on you. What is that information on you? I will read from the report of the Privacy Commissioner. The information that is provided to the United States officer includes the following:

. . . detailed personal information, including medical information about the target and the target’s relatives and associates. For example, in one case, we found a detailed description of an individual’s struggle with post-traumatic stress disorder and the medications being taken for that condition in notes made by the BSO. In addition, the names and phone numbers of third parties found in the targets’ phone contact lists or wallets were recorded in some of the files that we reviewed.

. . . [as well as] printouts of entire social media pages including lists of associates, postings, and photos of targets as well as their spouses, children and/or friends had been added to NTC files.

Do you want me to repeat? All that information is gathered on a single Canadian evaluated to be a target risk and passed to the American officer without having been checked as to whether that information is in sync with the Privacy Act. There are a lot of recommendations in that report of the Privacy Commissioner that are totally in breach of the Privacy Act. That’s during the whole year that the Privacy Commissioner went through an examination of all those files of the 95 that he picked up among the 522 files that were deemed by the CBSA as being a national target risk.

This is very serious, because if a Canadian decides to withdraw from the pre-clearance — don’t forget, you are still on Canadian soil, and on Canadian soil, if you refuse to continue the travel procedure, you have decided to withdraw. Keep in mind that in the other place, they are amending the Criminal Code to make possession of cannabis legal. You are on Canadian soil; you have some grams of cannabis on you, and you finally realize that you should not be trying to cross because you have cannabis that’s illegal in the United States.

What happens? The American pre-clearance officer has the power to detain you. He has the power to detain you on Canadian soil and to submit you to the additional procedure that is listed in subclause 22(4) of the bill.

But as a Canadian, you have rights. When an officer wants to detain you, there’s a procedure when you are detained. What is this procedure? It’s section 10 of the Charter:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

The Supreme Court has interpreted that section time and time again. But the American officer has totally free rein not only to detain you but also to seize your car in the parking lot of the airport — as a Canadian. And no police officer in any province, be it a municipal, provincial or RCMP officer, has the right to seize your car without a court warrant.

But not the American pre-clearance officer. Not only can he seize your car, but also he can seize your computer, and he is not compelled to give you back the computer once the procedure is over. He can decide to confiscate your computer with all the information that you might have put on your computer that might be helpful and needed to carry on your business, interests or whatever.

So there is no doubt in my mind, honourable senators, that this section of the bill is in violation of the Charter of Rights and Freedoms. We have to apply to the search of a Canadian on Canadian soil exactly the same kinds of protections that a Canadian enjoys under the Charter of Rights, be that person, for instance, in a municipal, RCMP or provincial police station. There’s no change at all. The government and Parliament have no authority to reduce the protection you enjoy under the law of Canada, under the Privacy Act or under the Charter of Rights.

This bill, honourable senators, needs a strong vetting, and I think the members of the committee who will have to study this bill should have a clear chart in front of them — un tableau. What are your rights when you are in a police station on Canadian soil, and what are your rights as this bill defines and limits them when you decide to go to pre-clearance?

And when you decide to go to pre-clearance, don’t fool yourself; this bill is not only about airports but about train stations and ports — the major access points to the United States. When the Canadian government signed the agreement with the United States, it was with the proviso that we would adjust our search procedure to the one of the United States, not the other way around, because the protection that Canadians enjoy under Canadian law is much broader than the one that the Americans enjoy under Canadian law.

I will illustrate that with a statement made by the head of the American government last summer. I don’t know if that has been catching your attention — what the President of the United States said about how to treat somebody who is detained by the police forces. I want to quote from a statement made on July 27, last summer. What did the President of the United States say about how our police should behave when they detain somebody? I quote:


“And when you see these thugs being thrown into the back of a paddy wagon,” he said, “you just see ’em thrown in, rough.

“I said, ‘Please don’t be too nice.’ Like when you guys put somebody in the car and you’re protecting the head. You know? The way you put the hand over [the head], like ‘Don’t hit their head’ and they’ve just killed somebody, ‘Don’t hit their head.’

“I said, ‘You can take the hand away,’ OK?”

In other words, when you are in the hands of a pre-clearance officer or an officer, you’re certainly not protected the way we’re protected in Canada. When the same government at the beginning of its term said “extreme vetting” of Muslims, well, if you happen to be a Canadian Muslim and you are on pre-clearance because you’re flying — may I have another five minutes?

The Hon. the Speaker: Agreed?

Hon. Senators: Agreed.

Senator Joyal: So you are a Canadian Muslim and you’re on Canadian soil on pre-clearance. Well, the President of the United States of America has already said to the persons who act as pre-clearance officers, “extreme vetting.” Do you want me to describe what extreme vetting is? I think everyone of us is a grown-up adult able to understand what “extreme vetting” means.

Do you want me to describe what it is to be rough with a person who is detained, who has done nothing wrong, by the way? The person is on Canadian soil and sees his goods confiscated with very little chance to get back his computer or cellphone or any other documents the person may have to carry on business in the United States.

Do you want me to tell you what your recourse is now if you are a Canadian? We all know we have recourse as a Canadian against any police officer who might have acted illegally or in breach of the Charter of Rights and Freedoms. I don’t need to give you examples. I will just quote one decision of the Supreme Court of Canada, because it is key to understand the scope of Bill C-23. This decision involves the City of Vancouver, so our friend Senator Campbell will certainly remember that one, Vancouver (City) v. Ward.

Mr. Ward happened to be a person who was arrested when Prime Minister Chrétien was in Vancouver because Mr. Ward was suspected of having a tart and that he would throw the tart at the face of the Prime Minister. It happens that Mr. Ward’s clothing corresponded to the description that the Vancouver police had of the suspect. They arrested him and strip-searched him. Do you want to understand what a strip search is? Don’t forget, there are 552 Canadians who are targets, susceptible to extreme vetting and rough treatment, with all the information about the person that the Canadian government has transferred through the Border Services Agency to the American pre-clearance officer.

Extreme search, honourable senators, is the most intrusive and degrading search that anyone could be submitted to. In that decision — I’m looking at our colleague Senator Sinclair — for the first time, the Supreme Court of Canada unanimously granted damages to Mr. Ward for having been strip-searched with no real reasons. Why was it the first time? Because the court must focus on the breach of Charter rights as an independent wrong worthy of compensation in its own right. In other words, as a Canadian, not only are you entitled to your rights to be protected against unreasonable searches or unreasonable detention, but if you are the object of such a decision, you have a claim to get compensation from the government — not from the police officer who has searched you, because the bill prevented that. Bill C-23 prevents you from suing the pre-clearance officer who would have conducted that unreasonable strip search. Besides the civil action, you would have to get damages. The Supreme Court ruled in 2010 that you have a right to sue the government — in that case the City of Vancouver, or the Canadian government if it would be an RCMP officer — to get compensation for the mere fact that the state has allowed that officer to carry out the search.

With this bill, you would have to sue the United States of America. I’m looking at Senator Ogilvie. Who among Canadians would be entitled to sue the United States of America, which would claim the immunity act? What does the immunity act contain as a protection regarding the United States of America: everything but for three exceptions. The first one is if they have killed you; the second one is if they have physically damaged you; and the third one, is if you have — I’m sorry. My time is — I conclude with this. I know you want to know the third one. I’ll quote it from the brief of the Quebec bar. I’m not inventing these things, honourable senators. I went through this totally. I know His Honour is becoming impatient, and rightly so.

If you die, if you have physical damages or damages to the goods and that happened in Canada.

The three exceptions are if you die, if you have physical damages, or damages to the goods and that happened in Canada. You won’t be able to sue the Government of the United States of America. However, as a Canadian, if the same thing happens to you, you would be entitled to compensation under a decision of the Supreme Court of Canada.

Honourable senators, the committee that will be charged to study that bill has to have clearly in mind what your rights are in Canada and what your rights are in the pre-clearance territory.

(On motion of Senator Omidvar, for Senator Moncion, debate adjourned.)