Customs Preclearance

Spring 1999 CSANews Issue 31  |  Posted date : Mar 01, 2007.Back to list

Federal legislation designed to give U.S. officers at Canadian airports wider search and detention powers is too sweeping and needs to be tempered, immigration lawyers say.

"I've got serious concerns about whether they need that much power," said Michael Greene, a Calgary immigration lawyer. "They are using a howitzer to catch gnats."

Mr. Greene, who sits on the executive of the Canadian Bar Association, said he plans to make his concern known to the Senate, where the bill was introduced in December.

The law gives U.S. border officials at Canadian airports the right to fine, detain and frisk U.S.-bound travellers suspected of illegal activity. Previously, travellers could simply leave the area and not get on the U.S.-bound plane if they didn't like the questions the U.S. officer asked, Mr. Greene said.

"What's wrong with changing your mind?" he asked. "Why can't the average Canadian be allowed to withdraw his application?"

Sharon Carstairs, the government deputy leader in the Senate, explained that the law is needed to clear up the role of U.S. border officers because it is unclear what authority they currently possess.

That came under scrutiny last year when a 30-year-old University of Calgary political science student, bound for Florida, was escorted by a U.S. official through Calgary airport's concourse to a bank machine to pay fines for attempted drug smuggling. At the time, Foreign Affairs Minister Lloyd Axworthy told the House of Commons that U.S. officials did not have the right to take such action.

Ms. Carstairs said yesterday that the new bill would bar such activity.

"That kind of thing is inappropriate and would remain inappropriate under this legislation," she said. "What is not clear right now is what [the officials' powers] are, and that's exactly the reason for this bill."

The U.S. officers work in airport preclearance zones, areas in Canadian airports where U.S. border officials prescreen people bound for U.S. destinations. Without preclearance, travellers from Canada would have to line up for customs and immigration services in the United States.

If there is one issue that concerns every member of the Canadian Snowbird Association, it is what happens when crossing the Canada/U.S. border. In 1996, the United States Congress passed the Immigration Reform and Immigrant Responsibility Act, which contained provisions which, in effect, gave the border inspectors unbridled discretion as to allowing entry into the United States. Now, as reported in the accompanying article, the Canadian Senate has been presented legislation which would increase the powers of U.S. inspectors at preclearance centres in Canadian airports. It is reported that Senator Sharon Carstairs, who introduced the bill, considered the issue and bill to be "non-controversial;" to the Canadian Snowbird Association, anything which takes away the rights of Canadians as they cross the border is anything but "non-controversial." We have been concerned since 1996 with issues relating to border crossing!

The Canadian Snowbird Association intends to take a much stronger stand in this matter, and defend the ability of persons crossing the border to protect their rights. The following article reports what is currently happening in Ottawa.

Wallace J. Weylie, CSA Legal Counsel

"No U.S. offical in any preclearance situation has the right to search and seizure of a Canadian citizen. We maintain that. We are asking for an investigation into the facts of this particular case."

Foreign Affairs Minister Lloyd Axworthy, March 16, 1998

"It was necessary to clarify the rules between the two countries, so we have treatment of our citizens that is appropriate. My concern, and I have to tell you right from the beginning, is that Charter rights be protected."

­ Senator Sharon Carstairs, March 3, 1999

Mr. Greene agreed that a new law is needed, but said that letting U.S. officials detain people is going too far. He said allowing a U.S. official to request a strip-search is explosive. Under the legislation, such a search would be conducted by a Canadian officer.

The bill is also intended to give Canadian border officials the same rights in the United States. However, Canada has no Canadian preclearance zones in U.S. airports, and Toronto immigration lawyer Howard Greenberg said he finds it hard to believe U.S. authorities will allow Canadian border officials to frisk Americans travelling to Canada.

Mr. Greenberg said he intends to appear before the Senate to make known his concern that the bill must ensure the rights of Canadian-based travellers.

Ms. Carstairs said yesterday that it is not out of the ordinary for the Senate to introduce a non-controversial bill. She did concede that the new legislation is the object of some concern among members of the Senate's foreign affairs committee, which has asked for an extra day of hearings to study it.

Under the Canadian parliamentary system, the House of Commons normally introduces and debates legislation first, and the Senate examines it and votes on it later. Occasionally, the Senate passes a bill first, particularly if the House of Commons is busy.

A 30-year-old political science student at the University of Calgary was travelling to Miami last winter, planning when he was there to ask his girlfriend to marry him. At Calgary airport, a drug-sniffing dog sat down beside him, indicating that he might be carrying drugs. Customs officials searching his bag drew what he described as a "speck" from the bill of his baseball cap and put it in a bag containing a jelly-like substance. After shaking the bag for five minutes, an officer said the speck turned blue, which meant it was a controlled substance. The student was then strip-searched.

The man was told he faced a fine of $5,000 for taking a controlled substance into the United States, but if he paid $500 immediately and signed papers, he could go. A U.S. official escorted him to a bank machine in the airport concourse. The papers he signed said he had lied to U.S. officials when he told them he had no narcotics on him. He objected, but said later he feared that if he did not sign, his girlfriend would be strip-searched.

He was then barred indefinitely from the U.S.