1st Session, 42nd Parliament
Volume 150, Issue 145
Wednesday, October 4, 2017
The Honourable George J. Furey, Speaker
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. Mobina S. B. Jaffer: Honourable senators, I too rise today to speak on Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States.
First, I would like to thank Senator Black for his informative speech on this bill, which outlined how pre-clearance between Canada and the United States will benefit us all. Since Senator Black discussed the merits of pre-clearance at length, I will not repeat them today.
I would also like to thank Senator Housakos for his informative speech today. He, of course, covered other points that were not covered by Senator Black.
Instead, I will focus on some of the bill’s implications on the rights of Canadians, which I believe that we should as a Senate examine as this bill goes to committee stage.
While trade and travel may both be admirable goals, it is my concern that these economic benefits may be gained at the expense of our rights under the Canadian Charter of Rights and Freedoms. That is why I will devote my time today to discussing three major charter-related issues.
The first concern that I want the committee to look at is the one raised by the Privacy Commissioner in May of this year. It deals with the fact that Bill C-23 will give American pre-clearance officers the right to search electronic devices and require people seeking entry to give passwords to their cellphones and any social media accounts without legal grounds.
This change is a complete violation of section 8 of the Canadian Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. In fact, our Supreme Court has already ruled on this exact issue several times.
For example, in R. v. Vu, the court ruled that investigators must obtain specific permission from the court before accessing data found in a computer or cellphone unless extraordinary circumstances make the search necessary.
One year later the court went further in a landmark case known as R. v. Spencer, where it ruled that Section 8’s right against unreasonable search and seizure gives Canadians the right to maintain their anonymity regarding their online activities.
Given these rulings, it is worrisome that Bill C-23 would allow American preclearance officers to search electronic devices and demand online passwords with almost no restrictions! To quote the privacy commissioner:
The search of an electronic device is an extremely privacy intrusive procedure. This has been recognized by the Supreme Court of Canada on a number of occasions.
While I understand that state agents have broader search powers at the border, it is unlikely Canadian courts would uphold searches as constitutional without grounds of electronic devices or of the content of social media accounts.
Honourable senators, in this modern day our electronic devices contain everything about us. We must ensure that American preclearance officials cannot search them in a way that is clearly forbidden for our own officials to do.
My second concern is that clause 22 of Bill C-23 will enable American preclearance officers to conduct strip searches if they have “reasonable grounds to suspect” that a traveller is concealing dangerous goods.
Worse yet, while Bill C-23 states that Americans must request that a Canadian conduct the search, the bill also provides these American officers with several ways around this safeguard. American officers can simply do the search on their own if the requested Canadian officer refuses to do it or if no Canadian officer is available at the time.
This worries me, since the Supreme Court has very clearly taken a stance on strip searches. If you remember what Senator Black said — and I respect what he said — there have only been two strip searches as far as he knows, but we are now opening the door for a foreign government’s officials to do strip searches in our country.
In R. v. Golden, the Supreme Court clearly ruled that strip-searches may only be done out of clear necessity with the permission of a supervisor and by members of the same sex.
The Supreme Court also ruled that anyone performing strip searches without satisfying these criteria would be violating the right to be secure against unreasonable search and seizure under section 8 of the Charter.
By contrast, Bill C-23 will allow American preclearance officers to conduct strip searches without any form of approval and for no stronger grounds than simply suspecting that a person is carrying something dangerous. If this remains in the bill, unconstitutional strip searches could be conducted.
My final concern deals with the changes to the traveller’s ability to withdraw found in clause 30 of the bill.
With Bill C-23, travellers withdrawing from preclearance meetings will be forced to:
. . . . answer truthfully any question asked by a preclearance officer . . . for the purpose of identifying the traveller or of identifying their reason for withdrawing . . . .
The words “for the purpose of” are particularly worrying in this instance. With this wording, preclearance officers could ask questions far beyond a person’s name or reason for leaving. Invasive questions about a person’s political or religious views, past behaviour and associations could all be asked for in the name of reasons for withdrawing.
Worst of all, travellers would be left with no recourse at all if they did not want to answer any questions. If they tried to keep silent or walk away, they could be detained and arrested for refusing to answer questions truthfully from a preclearance officer under clause 37, or for resisting a preclearance officer under clause 38.
This goes against one of the most fundamental rights that our Charter contains: the right to silence, which is found in sections 7, 11 and 13. As honourable senators know, even before the Charter our great country was formed on the idea that every person has a right to silence. This bill would take away the right to silence.
Together, these provisions ensure that Canadians may not be compelled to make any statement that is self-incriminating and that anything that is compelled from an individual may not be used against them in any form of proceedings.
In the case of Bill C-23, travellers could be detained or arrested for refusing to talk or for trying to walk away when speech is being compelled from them, despite having legitimate reasons for their silence, such as refusing to be stereotyped or being forced to reveal sensitive personal information.
This leaves Canadians with two options: either talk or be detained, each of which lead to a right being violated. If they are silent, then they will be arrested for exercising their right to silence, which is ingrained in our society. If they speak, they are being compelled to set aside their Charter rights.
This is not a theoretical situation. Situations like these have already happened: For example, honourable senators, in February of this year, Fadwa Alaoui of Montreal went to the airport to board a plane to Vermont with her children for a shopping trip. When she was about to get on the plane, she was stopped by U.S. officials who told her that she could not cross the border. When Fadwa was about to leave, the U.S. officials asked her invasive questions about her religion and her views on Donald Trump. Thankfully, she was able to exercise her right to walk away from questions that were obviously improper.
If this bill passes, stories like Fadwa’s could end quite differently. Preclearance officers could feel that Fadwa’s views on her faith or Donald Trump have to do with her withdrawing, especially in today’s world when Muslims are often unfairly singled out at the U.S. border.
If travellers wish to withdraw from preclearance interviews, they should be safe from inappropriate questions from U.S. border agents, and should not have to face detention for exercising their right to silence.
As this bill goes before the committee, honourable senators should also take a close look at potential gaps in the safeguards that are intended to protect the rights of Canadian travellers.
The first of these safeguards is clause 11, which states that preclearance operations in Canada must be conducted in accordance with Canadian law, including the Charter, to ensure that American preclearance officers do not violate Canadian rights. I am concerned that another clause of the bill makes this protection ineffective.
While clause 11 may have been effective on its own, it is completely invalidated by clause 39(2), which gives American preclearance officers immunity from any kind of civil proceedings.
Any complaints regarding the Canadian Charter of Rights and Freedoms can only be pursued in civil proceedings. This results in a situation where American preclearance officers will be subject to the Charter and other criminal human rights laws, but would suffer no consequences if they violated any of these laws.
Clause 30 of Bill C-23 could address the problem by allowing Canadians to bring civil actions against the U.S. government in Canadian courts regarding the actions of preclearance officers.
However, in cases like this, 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 U.S. government.
In other words, if Bill C-23 passes in its current form, American preclearance officers have no reason to respect the Charter and Canadians would have no recourse if they wanted justice for the violation of their important rights.
Honourable senators, as this bill proceeds to the committee stage we must ensure that the safeguards that the government has placed in this bill will be effective. American officers must be held accountable if they violate Canadian rights.
Honourable Senators, several reasons have been given to justify the potential violation of Canadian rights that Bill C-23 would make possible. However, I would argue that sacrificing the rights of Canadians is never justified.
Some argue it is better than having the rights of Canadians violated in the United States, where they are not protected by Canadian law. I would argue this is unacceptable because it would make Canada complicit in the violation of Canadian rights.
Others argue that it is acceptable because of the economic benefits of pre-clearance. However, our rights may not be bargained away by the executive branch for economic benefits. They belong to us, all Canadians.
Finally, it is often argued that we must agree to this because it is a product of an agreement that we have made with the United States. This is something I take the greatest issue with.
Charter rights are inviolable rights and must not be used when negotiating agreements like the one that led to the creation of this bill.
As Canadians, we understand that our rights are the most important part of our democracy and lives. This is why our Canadian Charter of Rights and Freedoms is part of our Constitution rather than a normal law.
For that reason, honourable senators, I urge you to consider these problematic sections when this bill goes to the committee stage.
Honourable senators, I gave a lot of thought to whether I should make this speech and whether it would be heard, but I feel that I am absolutely forthright. I absolutely believe we should have trade, but we should never give the executive branch of our government the right to give away our rights under the Canadian Charter of Rights and Freedoms.
That is a right this house has to protect. That is why we were formed — to protect the rights of Canadians. If we fail in this bill, there is nothing more to talk about in this chamber because it is our duty to look after the rights of Canadians.
Honourable senators, I am not saying we should reject this bill, but I’m saying let us study this bill carefully to make sure that we in this house protect the rights of Canadians. Thank you.
Hon. Nancy Greene Raine: Will the honourable senator take a question?
The Hon. the Speaker: Honourable senator, your time has expired. Are you asking for time to answer a question?
Senator Jaffer: Yes, please.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Raine: Thank you for a thoughtful and thought-provoking analysis of this legislation. As I was listening to you, I started to think about another group of people who pass through our borders, and these are tourists that we welcome to Canada and who are often on a tour that combines a holiday in the U.S.
Have you had an opportunity or occasion to study what their rights are as they are going through a border inspection on Canadian soil by the Americans, who may, in fact, turn them away? Even though most of these tourists travel on an international tourist visa that is set up well in advance, they don’t know these little ambiguities as they go through the pre-clearance process. Can you comment on the impact it might have on these very welcome foreign tourists to destinations in Canada and the U.S. and the impact it might have on that kind of trade?
Senator Jaffer: Senator Raine, you have asked a profound question, and I don’t want to give you an answer that might not be correct because I haven’t looked at it, but I think these are the things the committee should study because a pre-clearance bill is necessary, but protecting our rights is even more necessary.
Hon. Carolyn Stewart Olsen: Would you take another brief question? Just a point of clarification: Pre-clearance is a choice, is it not? You don’t have to ask to be pre-cleared. I don’t know the bill; I’m just wondering about that.
Senator Jaffer: I could be wrong, but my study of the bill indicates that everyone would have to go through pre-clearance. If you got to pre-clearance and the officer started asking intrusive questions, in our country, we could say, “I’m not answering; I’m out of here.” Under this bill, you have to answer. If you don’t answer, you would get detained. I believe it’s not a choice for everyone, but I could be corrected on that.
(On motion of Senator Pratte, debate adjourned.)