ICC Provided Written Submission to Senate Committee on Preclearance Act Bill C23

The Policy Committee of the Iranian Canadian Congress provided the following statement and outlined the concerns of the ICC in regard to the changes to the Preclearance Act Bill C-23, which is currently being discussed before the Senate Standing Committee on National Security and Defense.

Kind Attention: Honourable Senator Gwen Boniface, Chair of the Senate Standing Committee on National Security and Defence.
CC: Honourable Senators of the Senate Standing Committee on National Security and Defence.

We are writing this statement on behalf of the Iranian Canadian Congress in regard to Bill C-23, which is currently before the Senate Standing Committee on National Security and Defence. The Iranian Canadian Congress (ICC) is a grassroots non-profit, non-partisan, and non-religious organization that seeks to advance and defend the interests of the Iranian-Canadian community. Bill C-23, otherwise known as the Preclearance Act, 2016, which amends the previous the Agreement on Land, Rail, Marine, and Air Transport Preclearance (2015), has been brought to our attention due to concerns in our community over how this bill would affect it. We believe that our views can provide useful information to the Committee’s deliberations as the Iranian-Canadian community is uniquely positioned to be affected by the provisions of the Bill.

We begin by stating that we applaud the spirit of the bill, which desires to quicken the flow of goods, services, and people by circumventing the long lines and hassles of border crossings and thereby strengthening our nation’s economy and reduce travel time for Canadian and American travelers. However, we at the ICC must express certain reservations and concerns on elements of Bill C-23. These include, but are not limited to, the fundamental changes to the withdrawing process, the protection of individual’s privacy, and the expansion of the preclearance agents’ powers.

Thus, as Iranian-Canadians are facing, and have faced, increasing travel restrictions and scrutiny by US officials in recent years, it is our position that the Senate must ensure that the individual rights of Iranian-Canadians, along with all Canadians, are protected and that Bill-C23 does not infringe on these rights. Below, we will describe our reservations about some of the Bill’s provisions, especially as they relate to withdrawing, privacy, and the expansion of US Officers’ rights.

Withdrawing

Currently enshrined in the act of 2015 is the right that “allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained.” This means that any individual has the right to leave the preclearance area at any time, refuse to answer any questions, and the individual is not obligated to provide a reason.

Under Bill C-23, while the individual can still withdraw from the preclearance process and area, they are now obligated to complete the questioning process, which includes providing a reason for withdrawing (30a), and the individual must provide a photo id (if they had not as of then provided one) or consent to have their photo taken (30b). There are many legitimate reasons why one would choose to withdraw from the preclearance process, such as aggressive tactics from border guards, leading questions, personal questions, or simply the desire to leave, reasons which this provision of the Bill does not take into account.

Another aspect of the withdrawing process will also change under the new bill and is a cause for concern for those who are crossing the border. Under the Preclearance Act 1999, s 16(3), “the refusal by a traveller to answer any question asked by a preclearance officer does not in and of itself constitute reasonable grounds for the officer to suspect that a search of the traveller is necessary for the purposes of this Act or that an offence has been committed under section 33 or 34.” (emphasis added)

Bill C-23 removes such provisions and instead states that, “with respect to a traveler who is withdrawing from preclearance”, the preclearance officer is allowed to visually and physically examine conveyance used by the traveler (without opening or entering it) and record and retain information obtained from the traveler.

Furthermore, if a preclearance officer has reasonable grounds to suspect that a traveler who is withdrawing from preclearance has committed an offence, they can examine, search and detain goods in the traveler’s possession and conduct a frisk search of the traveler and detain the traveler for the purposes of a strip search.

A key issue is how such reasonable grounds are defined in the bill. According to Bill C-23, if the withdrawing traveler or any traveler has concealed goods or anything that would present a danger to human life or safety or if the search is necessary for the purposes of maintaining the security of or control over the border, then the officer has reasonable grounds. Our concern is that both of these provisions are broad may be easily abused in the event of withdrawal.

Therefore, Bill C-23 proposes to remove the provision where withdrawing does not constitute reasonable grounds of suspicion. This allows preclearance officers possibly intrusive powers on any and all individuals who decide to withdraw from the preclearance process; in fact, the act of withdrawing itself becomes “reasonable grounds.” With the rise of discriminatory instances against Iranians in both Canada and the United States, and the current political climate between Iran and the two countries, removing the safeguards for withdrawing, allows preclearance officers the ability to racially profile Iranian-Canadians with no restrictions or recourse for Iranian-Canadians.

With the existing laws of the Preclearance Act of 1999, if an Iranian-Canadian traveler feels intimidated and/or racially profiled, they would have the right to withdraw from the process. However, with the current revisions of Bill C-23, Iranian-Canadians in that situation would not only be denied that right, but could also be subjected to additional invasive screening by the same officer because of their desire to withdraw. Thus, it is our opinion that the safeguards enshrined in the Preclearance Act of 1999 should remain in order to protect the rights and dignity of Iranian-Canadians in preclearance zones.

Privacy

Beyond withdrawing rights, Bill C-23 also alters individual’s privacy rights that were protected by thePreclearance Act of 1999. Previously, preclearance officers must destroy specified passenger information within 24 hours after the officer obtains it and they must take reasonable measures to protect specified passenger information that is under the officer’s control from unauthorized use and disclosure.

Preclearance Act of 1999, s 32(1)(A) and s 32(2)

However, Bill C-23 removes the time limitation and states that:

“No person is permitted to disclose or use information obtained from a traveller after their withdrawal from preclearance except for the purpose of maintaining the security of or control over the border between Canada and the United States or as otherwise authorized by law

Preclearance Act of 1999, s 33:1 (emphasis added)

The issue at hand is twofold: by removing the time limit, the information collected can be held indefinitely. This is of intense concern for our community as their information could be kept by the US government without any recourse by community members. Additionally, in conjunction with the expanded surveillance powers granted recently to the Canadian government, the Preclearance act, and Preclearance zones, could become another avenue for collecting, analyzing and storing the private information of Canadians. This is because the clause “as otherwise authorized by law” could be interpreted by Canadian law to allow for increased data collection. This will further continue the trend of compromising the privacy rights and safety of Canadians by allowing increasingly intrusive governmental surveillance by our own Government. 

Thus, these privacy provisions of Bill C-23 can potentially be used to target people of certain racial (or even political) backgrounds. In our view, this is extremely alarming as any Iranian-Canadian (or indeed any Canadian) who chooses to utilize the preclearance zones are potentially allowing both the US and Canadian governments free reign on their personal information. As a community that is facing rising discrimination in both Canada and the US, these changes to the individual’s privacy rights can heighten racial tensions in Canada, especially at the expense of the Iranian community, and can erode the trust between Canadian citizens and their government. Therefore, it is imperative that the government ensures that individuals’ privacy rights are protected and that all Canadians of different racial-backgrounds feel safe in utilizing preclearance zones.

Expansion of US Officers’ Rights

Bill C-23 will move to significantly increase US preclearance officers’ powers on Canadian soil and will bring into play US laws in these areas. Currently, the Preclearance Act prohibits US officers from doing body searches of people in preclearance on Canadian soil without having a Canadian officer being notified and present. Yet one of Bill C-23 propositions is that any Canadian in a Canadian preclearance perimeter in the United States “must comply with any requirement that is prescribed by regulation.” (27:1; 27:1b)

The vague wording of provision 49 of the bill should draw concerns from not only the public but the federal government itself. Provision 49 begins by clearly delineating what US officers are not permitted to do: “A border services officer or other public officer is not permitted, in a preclearance area or preclearance perimeter, to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest.” However, Bill C-23 s49 (1) then provides a broad and ambiguous caveat: “except to the extent that such powers are conferred on the officer by the laws of the United States.” Therefore, the provision which seems to be limiting the powers of the officers are in fact granting the officers the right to exercise US laws on Canadian soil.

The ramifications of such changes can vary in severity and is intimately ties to individual US administrations. Currently, under the new Trump administration, laws such as the Muslim (or Travel) Ban, could be applied on Canadians in preclearance areas. For while Canada and US do have plenty of common interests, they also have competing interests, especially when it comes to the protection of Canadian citizens. There is a growing trend by US lawmakers to use controversial means secure their borders, a trend which may have undesirable impacts on preclearance areas for Canadians if Bill C23 is passed. Again, this is especially concerning to our community since individuals of Iranian background have been specifically targeted by the US administration’s policies, including the Muslim (or Travel) Ban.

Concluding Remarks

The spirit of Bill C-23 is to provide a quicker process for the flow of goods and traffic between Canada and the United States of America, with a view to provide economic benefits to both nations. As Canadians, the ICC wholeheartedly supports the goals of Bill C-23 to strengthen our economy; however, we cannot accept Bill C-23 in its entirety as a careful examination of the bill has revealed problematic provisions, as outlined above. It is the federal government’s duty to ensure that the rights of all Canadians, regardless of race and national origin, are secure and that they are not ignored. However, in Bill C-23’s current manifestation, there are multiple provisions that do not safeguard these rights but rather serve as another avenue for surveillance, the collection of private information, and possible unfair treatment by US officials. As the Iranian-Canadian community is currently facing growing numbers of discriminatory attacks and negative portrayals in mainstream media, we are deeply concerned that the changes proposed in Bill C-23 can be utilized by preclearance officers in racial profiling and as a method to collect private information on community members. Without any safeguards or checks, the benefits of C-23 become overshadowed by the potential misuses of the Bill. Thus, as one community of many in Canada, it is our duty as citizens to voice our concerns of the Bill C-23 and ask that these provisions are carefully scrutinized, and if needed altered, by the Senate to ensure that all Canadians, present and future, can live in a strong and free Canada.

Sincerely,
Pouyan Tabasinejad
Policy Chair, Iranian Canadian Congress (ICC)

Andrew Lee
Policy Associate, Iranian Canadian Congress (ICC)

On Behalf of
The Iranian Canadian Congress (ICC)

Submitted to members of the Senate Standing Committee on National Security and Defence on Nov 26, 2017.

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