Even though a year has passed since the government introduced its newest bill to implement new preclearance measures at Canadian airports, debates about the system outlined in Bill C-23 still remain heated as ever.
According to CBC, the Prime Minister’s Office is still being flooded with emails from Canadians who are worried about the powers that Bill C-23 will give to American preclearance officers.
As a Senator, I have heard similar concerns from Canadians across the country. They worry that C-23 will let American preclearance officers in Canada perform strip searches, be armed, and even prevent people from leaving preclearance interviews!
Despite these concerns, the government is appealing for calm and pointing to Section 11 of the bill, which states that preclearance officers must conduct their duties in accordance with Canadian law. According to the government, this section will prevent any human rights abuses by preclearance officers.
Unfortunately, my own studies into the bill show that this argument may not be entirely accurate. While Section 11 may have been effective on its own, it is completely invalidated by section 39(2), which gives American preclearance officers immunity from any kind of civil proceedings!
It is worth remembering that complaints regarding the Canadian Charter of Rights and Freedoms- our strongest human rights law- can only be pursued in civil proceedings. This means that American officers will be immune to Charter complaints, and will have very little reason to respect the Charter at all!
Worse yet, Section 39(1) of the bill states that any Canadians who have complaints that they wish to bring before the court must bring their proceedings against the entire US government, rather than the individual officer!
In cases, like these, the plaintiff would have no chance. Throughout all of Canada’s legal history, there has never been a single case where a Canadian has won a civil case against the US government!
Further, the Supreme Court of Canada has shown that it will simply not rule against the United States, or even recommend that Canada seek some form of compensation for the violations of its citizens’ rights. It has not even done this for cases where Canadians clearly had their rights violated, like the Khadr and Arar cases.
So long as this major gap remains, saying that Bill C-23 provides Canadians with safeguards that will protect their Charter rights is simply untrue. Instead, C-23 in its current form gives officers who abuse Canadians’ Charter rights immunity, and places impossible legal barriers in front of Canadians who have complaints about preclearance officers!
Some supporters of Bill C-23, like the Globe and Mail’s editorial board, argue that this gap is acceptable since Canadians could be abused when they cross the border and are no longer protected by Canadian law.
However, this argument misses one vital point- when this happens; Canada is not complicit in the violation of its citizens’ rights. On the other hand, if C-23 passes and makes it easier for American preclearance officers to violate the rights of Canadians, Canada will be directly responsible.
With the Khadr case still fresh in our minds, we must remember that there are severe consequences when Canada is directly responsible for the abuse of Charter rights. To pass bill C-23 in its current form despite such massive problems would be to forget this lesson.