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Lack of clarity on border preclearance zones concerning: lawyer

Last Updated Dec 17, 2019 at 12:29 pm EDT

File photo: Canada-U.S. border crossing. (Tom Walsh, CityNews Vancouver)
Summary

An immigration lawyer is raising concerns about Canadians' rights in preclearance zones at the border


Peter Edelmann says under the new rules, it's not clear what recourse Canadians have if a border guard crosses the line


VANCOUVER (NEWS 1130) – Recent changes to the Canada-U.S. preclearance agreement have resulted in a concerning lack of clarity, according to some legal experts.

Just what are our rights in preclearance zones? That’s not altogether clear, following changes to the system in recent months.

As of Jul. 11, U.S. Customs and Border Protection and the Canadian Border Services Agency have been sharing biographic data, travel documents, and other personal data collected at land border points of entry.

While some expressed concern with the changes when they were implemented, Public Safety Minister Ralph Goodale said the difference in practice was largely administrative — no new data was being shared with border officials on either side.

But immigration lawyer Peter Edelmann says under the new rules, there’s a new problem: it’s not clear what recourse Canadians have if a border guard crosses the line.

“You fall between the two sets of constitutional protections by creating these fictional border spaces outside of U.S. territory, or outside of Canadian territory,” he says. “And so it may end up creating a type of legal grey zone or a legal black hole, where you fall between the two sets of constitutional protections.”

Another notable change — Canadians once had the right to withdraw their interest in entering the U.S. in these zones if faced with a line of questioning they didn’t like during a screening — but no longer have that option.

RELATED: New data-sharing deal with U.S. no cause for concern: public safety minister

So how can travelers prepare? Immigration lawyer Catherine Sas says everyone crossing the border needs to prepare properly before speaking with border officers, particularly during the busy holiday travel season.

“One of the things we frequently caution people about is be careful what you’ve got on your portables devices – your laptop, your iPhone, your cellphone – those are subject to search, and you need to be aware of that,” she says.

In a statement to NEWS 1130, Public Safety Canada says U.S. preclearance officers are bound by Canadian law when they operate on this side of the border.

“To be clear, and accurate, when United States preclearance officers operate in the Canada they do so within the authorities provided to them under Canadian law,” the emailed statement reads. “Of note, there are several areas of the Preclearance Act, 2016 that demonstrate that preclearance operations in Canada are governed by Canadian law.”

It cites two parts in the Act, including that “the exercise of any power and performance of any duty or function under United States law in Canada is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.”

“For greater certainty, Canadian law applies, and may be administered and enforced, in preclearance areas and preclearance perimeters.

Public Safety Canada also cit4es sections 10 (2) and 11 (1), which are as follows.

  • 10 (2) A [U.S.] preclearance officer [in Canada] is not permitted to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest that are conferred under the laws of the United States.
  • 11  (1) A [U.S.] preclearance officer must exercise their powers and perform their duties and functions under this Act in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.

-With files from Marcella Bernardo