Preclearance Agreement Trumps Protection of Travelers from Canada to US


Amendments to protect rights of travelers to the US and ensure accountability of preclearance officers rejected at Committee: “Our hands are tied.”

Ottawa, June 15, 2017 — Civil liberties groups are expressing shock that Canadian MPs say they are unable to strengthen protections when traveling to the US because of an agreement signed between the countries’ governments.

“Regardless of a document signed between two countries, if you believe that the rights of Canadians are being weakened, you must do something about it,” says Tim McSorley, national coordinator of the International Civil Liberties Monitoring Group (ICLMG).

The reaction follows the final review of Bill C-23, the Preclearance Act, 2016, by the House of Commons Public Safety Committee on Wednesday night.

Civil liberties and human rights advocates have raised multiple concerns about C-23, warning it will grant too much power to US officers operating in Canada, with absolutely no mechanism for accountability unless their actions cause death, bodily harm or damage to property. The Preclearance Act, 2016, will allow US officers to strip search a traveler, even if a Canadian agent declines to do so; allow US officers to carry firearms; and remove the ability of travelers to withdraw from preclearance areas without further interrogation.

While various motions were moved at the committee to address the most severe problems that civil liberties and human rights experts have highlighted, they were systematically voted down. Often, the justification given by the majority was that C-23 must adhere to the provisions of the Agreement On Land, Rail, Marine, And Air Transport Preclearance, finalized without public scrutiny by the Canadian and US governments in early 2015.

At one point, a Liberal member of the committee stated that their “hands are tied” because of the deal negotiated by the Harper and Obama era governments.

“It’s disappointing that an agreement that did not receive any real public scrutiny or debate is now being approved without genuine opportunities for elected representatives to ensure our rights are protected when traveling,” says Ihsaan Gardee, executive director of the National Council of Canadian Muslims (NCCM).

While the law stipulates that US officers will be obliged to follow Canadian law when operating in Canada, including adhering to the Charter of Rights and Freedoms, civil liberties and human rights advocates argue that it is a toothless provision, as US officers are granted complete immunity from prosecution in Canada on civil charges, and near-universal immunity on criminal charges.

“It is trite to say that Canadians should prefer crossing the US border while on Canadian soil where they have the protections afforded under the Charter when there is no mechanism for holding US officers accountable to breaches of travelers’ rights,” says Pantea Jafari, board member of the Canadian Muslim Lawyers Association (CMLA).

Committee members did pass amendments regarding training of US officers, establishing a complaint mechanism (but without the power to hold US officers accountable), and calling for a statutory review of the law after five years. None of the amendments address the fundamental concerns of accountability expressed by the three organizations.

ICLMG, NCCM and CMLA are all urging members of the House to review the briefs the organizations have prepared and to take action to amend C-23 to ensure that the rights of Canadians and others traveling to the US are protected.

Read the joint ICLMG/NCCM brief:
Read CMLA’s brief:
Read the joint supplementary brief:

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