Pre-Border Clearance Issues in Bill C-23

Expanding pre-border clearance in Canada and the United States was among the highest priority initiatives contained in the Beyond the Border (BTB) Agreement. Pre border clearance essentially permits screening of travellers and cargo before arrival at the Canada-US border which speeds up the process significantly. One key application of this is its deployment at International Airports which will have Canadian and US border officers deployed in each other’s countries to achieve this improvement.  

While the BTB Agreement was been signed by both countries in 2011, the details of how it would be implemented were not completed until recently, following which both countries introduced enabling legislation. The US passed their legislation several months ago, while the Canadian legislation, Bill C-23, remains at Second Reading before Parliament.

It was during Second Reading debate recently that a number of issues have arisen regarding exactly how U.S. officers were being authorized to perform their duties (and vice versa). Listed below are these are legitimate questions as well as possible methods to resolve them.

Strip search
Issues have been raised regarding the actual requirements of U.S. ‘preclearance officers’ to notify and involve CBSA officers should they wish to conduct a strip search of persons travelling to the U.S. While that requirement is expressly articulated in s. 22(2) of the Act, s. 22(4) authorizes the U.S. officer to conduct the search if no CBSA officers are available or if the CBSA officer declines to do so. It is unclear why this provision was included in the Bill (and Agreement) especially as Bill C-23 expressly notes that Canadian law applies to all actions taken in preclearance areas and that other U.S. authority does not. [Sections 9, 10 and 11]

Clarification of when and why CBSA involvement is permitted should be obtained from the Minister including whether the Government will secure Memorandum of Understandings with U.S. authorities on this issue. This could be expressly required if it were included as a pre-condition in the original designation of a preclearance area by the Minister [sections 6-8] or by Governor in Council Regulations which are authorized under s. 57.

Traveler’s ability to withdraw
Section 29 of the Act expressly articulates the right of a passenger to withdraw from the preclearance process. Section 20(2) of the Act also prohibits the collection of biometric information from a traveler unless clear notice of the right to withdraw is posted in the preclearance area. Even when a traveler chooses to withdraw, preclearance officers still have extensive authority pursuant to sections 30-32 including to conduct a strip search on defined grounds. The Act requires [32.2] notification and participation of CBSA officers in s. 22 but with the same exceptions as noted above in s. 22(4).

Accordingly, it is also recommended that the Minister secure a MOU with U.S. authorities on the circumstances in which CBSA approval and participation is permissible.

Biometric data
The Act appropriately authorizes the collection of biometric data as well as photographs and fingerprints from travelers but expressly prohibits the collection, use or distribution of biometric data from a traveler that has indicated an intention to withdraw. Given the Privacy Act implications of this issue and the potential involvement and liability of CBSA officers in this process, it would be advisable if the Minister were to secure a written MOU with U.S. authorities on the precise processes to be followed in this area.

Requirement set by Regulation
Section 18(d) of the Act requires compliance with a requirement set by Regulation although no information is provided as to what this may involve. This issue should be closely monitored if C-23 is passed.

CBSA officer status
Section 36 of the Act confirms that officers designated by CBSA under s. 163.4 of the Customs Act have the arrest without warrant authority under sections 495-497 of the Criminal Code. Given the potential increased involvement of CBSA officers in such situations, this should result in designation of all CBSA officers working at Class 1 airports as there is an increased potential that they will be called on to act.

Further, this fact supports the long overdue overall approval of arming of CBSA officers at airports especially if they are working in enforcement scenarios with armed U.S. officers or armed Canadian police officers. This can be accomplished by the Minister helping CBSA achieve the required exemption from Transport Canada as was recently done for other Department’s Enforcement Officers.

Pre-border clearance at international airports and elsewhere is a good idea for both countries. Equally important, however, is working out the details to appropriately protect the privacy rights of the people that it is designed to benefit.

Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada.