Will Parliament throw Muslim and racialized groups under the bus in the rush for preclearance?

Rights cannot be railroaded in pursuit of political expediency and economic benefit, say leading civil society groups

(Ottawa – December 6, 2017)  Changes to Canada’s Preclearance Act (Bill C-23) are being rushed through and must be amended in order to avoid serious impacts on the rights of Muslim and racialized groups, and of Canadians more generally, according to labour, legal, Muslim and civil liberties groups.

“Bill C-23, as it stands, will significantly weaken Canadians’ rights when travelling to the United States. Canadian parliamentarians have acknowledged this, and yet they say their hands are tied because of an agreement with the United States. The result is that parliamentarians are knowingly throwing Muslim and racialized groups under the bus,” said Pantea Jafari of the Canadian Muslim Lawyers’ Association.

The proposed changes to the Preclearance Act are meant to implement a 2015 agreement reached between the then-Conservative government of Stephen Harper and the Obama administration in the US, and pave the way for travelers from Canada to pass through US customs before boarding flights, and expand preclearance to land and water crossings.

“We do not oppose greater access to preclearance,” said Tim McSorley, national coordinator of the International Civil Liberties Monitoring Group. “What we oppose is the trade-off being proposed in Bill C-23: that Canadians must give up essential protections when dealing with US officers in Canada, in exchange for the expediency and economic benefit of faster travel to the United States.”

Together, the Canadian Muslim Lawyers’ Association, the National Council of Canadian Muslims, the International Civil Liberties Monitoring Group and the International Longshore and Warehouse Union Canada are calling on members of the Senate Standing Committee on National Defence to make the necessary changes to Bill C-23 to ensure fundamental rights are protected when traveling to the United States.

On Monday, the same Senate committee heard hours of testimony from the Canadian Bar Association, the CMLA, the ICLMG, the BC Civil Liberties Association and the Privacy Commissioner of Canada, all raising their concerns with the dangers that Bill C-23 poses if adopted unamended.

These include:

  • The granting of sweeping civil or criminal immunity to US preclearance officers.
  • Losing the right to withdraw from preclearance without further questioning.
  • US officers being allowed to proceed with a strip search even if a Canadian officer declines to carry it out.
  • The Department of Homeland Security will have undue influence over the security clearance of Canadian workers.

“We continue to hear from Canadian Muslims and racialized people who experience greater screening, invasive searches and abusive questioning as they pass through preclearance areas in Canadian airports, as well as at land crossings,” said Ihsaan Gardee, Executive Director of the National Council of Canadian Muslims (NCCM). “While we do not question the good faith of most preclearance officers, we underscore the need to ensure the protection of Canadians’ rights when traveling to the United States, including the right to seek legal remedy.”

Bill C-23 also threatens the right of privacy of Canadian maritime workers and grants US officials significant influence over whether these workers receive security clearances essential to performing their functions.

“For the first time, Canadian maritime workers would face security evaluations by the US Department of Homeland Security,” said Rob Ashton, President of the International Longshore and Warehouse Union Canada. “Allowing US officials to send secret ‘derogatory statements’ about Canadian workers to the Canadian government that could cost them their jobs is simply unacceptable.”

Bill C-23 also raises fundamental questions of Canadian sovereignty.

Many of the changes proposed in the bill are based on the “Agreement On Land, Rail, Marine, And Air Transport Preclearance” signed by the Canadian and US governments in Spring 2015. This agreement has been criticized for having been negotiated without public input or consultation. During the debate and study of Bill C-23, members of Parliament and of the Senate have expressed that their “hands are tied” in amending the proposed legislation, since it could mean re-negotiating the 2015 agreement.

“It’s absolutely unacceptable that we are being asked to trade away our rights when traveling, based on an agreement that has seen no public or parliamentary scrutiny,” said Jafari. “We reject the proposal by the Canadian Ambassador to the United States that our only choice is either weakened protections at US preclearance in Canada, or no protections at customs in the United States. Canadians expect their government, and its officials to do better.”

“The role of parliament is to legislate, and to do so in the best interest of Canadians. If that means needing to renegotiate the preclearance agreement, lawmakers must be ready to take that step,” added McSorley.


Tim McSorley, ICLMG national coordinator
(613) 241-5298