Law Times

Law Times • apriL 3, 2017 Page 3 www.lawtimesnews.com C-23 could cause uncertainty Immigration lawyers decry preclearance bill BY ALEX ROBINSON Law Times I mmigration lawyers say a new bill that would give en- hanced powers to American border officers working at Canadian airports would likely result in a great deal of uncer- tainty for their work and their clients. Bill C-23 would give preclear- ance officers who work for U.S. Customs and Border Protection on Canadian soil the power to detain Canadians travelling to the United States that are clear- ing customs at preclearance facilities at select Canadian air- ports. The changes would also mean that travellers who want to withdraw their application if asked a question they feel is inappropriate will be required to answer questions about why they are withdrawing. Lawyers say these changes, in addition to a new climate of uncertainty at the border, could create new cases for them, but they would not be easy to re- solve. "It will likely create the same problems that we are currently seeing at the Canada-U.S. bor- der, except this time it will be happening on Canadian soil," says Henry Chang, an immi- gration lawyer with Blaney Mc- Murtry LLP. The bill recently passed sec- ond reading in the House of Commons. If the bill passes without amendments, lawyers say Can- adian travellers could find them- selves forced to answer inappro- priate questions, and that those answers could render them inadmissible. Travellers who refuse to an- swer officers' questions truthful- ly could face charges. Chang says the cases that would likely arise from these re- quirements and the expansion of officers' powers would be far from simple. Immigration lawyers hope it is not too late to have some of the more contentious parts of the bill amended. "If these new powers allow USCBP to pressure a Canadian into making admissions [that] are held against him [or] her later, it is going to be hard to re- verse it," Chang says. Officers will also be able to strip search Canadians if their Canadian counterparts are not available to conduct a search when notified. The bill is part of an agree- ment negotiated between the American and Canadian gov- ernments that would expand preclearance service to some train stations, as well as a num- ber of airports that do not cur- rently have the service. The federal government has said that an expansion of pre- clearance will better protect Canadians' rights, as the U.S. customs officers will still work under the Canadian law. The federal government has pointed to the fact that the bill establishes that preclearance of- ficers' duties and functions will be subject to Canadian law. Without the expansion of preclearance, the government has argued that Canadian trav- ellers would have to clear cus- toms on American soil, where the process would be completely controlled by the U.S. govern- ment. "The alternative is waiting until after you arrive in the Unit- ed States to clear customs and immigration. You would line up to get permission to enter that country under a process totally under U.S. control," says Scott Bardsley, a spokesman for Ralph Goodale, the minister of public safety and emergency prepared- ness. "There would be no over- arching international agree- ment, and no protection under the Canadian Bill of Rights, the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms." U.S. preclearance officers will be able to use "as much force as is necessary" to perform their duties, but this is limited where force is likely to cause death or grievous bodily harm. But immigration lawyers say Canadians will have little to no legal recourse for when their pri- vacy rights are violated. Chang says no action or civil proceeding can be brought against a preclearance officer individually for anything they do in carrying out their duties under the preclearance bill. Travellers will only be able to sue the United States, which would have to consent as it is immune from the jurisdiction of Canadian courts, unless the action relates to death, bodily injury or damage to property, Chang says. "Here's the problem. They are technically subject to the Can- adian laws including the Char- ter of Rights and Freedoms. The statute says that, but it gives you no way to enforce it. So why would U.S. officers ever follow Canadian law?" says Chang. Immigration lawyer Pantea Jafari says she thinks the bill would force lawyers into the role of watchdogs. She says the volume of entries could be the same, but the issues will change for lawyers and their clients. "If entries are refused, for sus- pect or other reasons, it will cre- ate re-work as we try to investi- gate and understand the reasons for refusal, then try to address same to finally gain entry for cli- ents," she says. "I imagine we will also see increased concerns of clients being f lagged for secondary re- view based on suspect and dis- criminatory targeting, which will require [a] different type of work for clients." Jafari says she expects work concerning secondary review will increase, and particularly se- vere cases would require counsel to practise in other areas, such as constitutional law. She adds that the legislation would make the work of lawyers harder. "Advising clients on how to prepare for interactions at the border will become more diffi- cult; there may be limited scope of what is reasonable question- ing in legal terms," she says. "Whereas in reality, because officers will have the power and authority to deny a person seeking entry for any reason in- cluding lack of co-operation, the ambit of questioning and, thus, the ambit of answers the person would be forced to provide could be vast." Toronto lawyer Robert Blan- shay says he's troubled about the power the bill will give to Amer- ican officers to conduct strip searches at preclearance areas when Canadian officers are not available. While the government has said this would only occur in rare circumstances and that American officers would be sub- ject to the same legal safeguards that would apply to Canadian officers, Blanshay says the new power could pose significant Charter concerns. "That's hugely problematic. I think there are Charter concerns when officers conduct body searches or strip searches, but if those are Canadian officers un- der Canadian legislation with the jurisdiction to do so, that's one thing," he says. "But if an American officer is now permitted to do so, because a Canadian officer is unavail- able, for me that's a very large concern." Lawyers say they expect the courts will likely strike down parts of the legislation if it is not amended before Parliament passes it. Jafari says it could, however, take years for a challenge to the legislation to make its way up to the Supreme Court of Canada, and that Parliament needs to make changes before the legisla- tion passes. "If you can see that it is very highly questionable on consti- tutional grounds, it's incumbent on the government to do better vetting and better analysis of those pieces of legislation before they are introduced. Why is the responsibility be- ing passed on to civil society to then go through years of litiga- tion . . . to get those laws deemed unconstitutional?" she says. "The responsibility is on the government to do better scrub- bing down up front so that it's only where it is vague that it goes up to the courts for determina- tion." The government's position is that the bill is constitutional. Lawyers say the government needs to slow down and take into account the current uncertainty that exists at the border with the policies of U.S. President Donald Trump. They say this was not consid- ered when the bill was first being negotiated between the govern- ments of former prime minister Stephen Harper and former U.S. president Barack Obama. After its second reading, the bill was referred to the House of Commons Standing Committee on Public Safety and National Security, which can still modify the bill on a section-by-section basis. LT NEWS Henry Chang says the new powers granted to American preclearance officers could result in more cases for lawyers, but they would not be easy to resolve. 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