/Im appalled: Lawyers alarmed as Ottawa gives more powers to U.S. border officers at Canadian airports

Im appalled: Lawyers alarmed as Ottawa gives more powers to U.S. border officers at Canadian airports

Concerns are mounting over added powers Ottawa has granted U.S. customs officers to strip-search, question and detain U.S.-bound travellers — on Canadian soil.

The changes are part of Canada’s new preclearance act, which the federal government says will enhance border security and make travel to the U.S. easier.

But Pantea Jafari, an Iranian-Canadian immigration lawyer, fears it could make travel more difficult for her.

That’s because the act gives U.S. customs officers in Canada broader interrogation powers — at a time when the U.S. has toughened its stance on immigration and has increasingly hostile relations with Iran.

“I will not allow a border officer to have access to me and have unfettered right to question me to no end,” said Jafari, who’s based in Toronto and serves many Iranian clients. 

Since the preclearance act took effect in August, she has stopped travelling to the U.S. and says the country’s current standoff with Iran has only strengthened her resolve. 

“My concerns of going to the U.S. have now 100 times increased.”

Toronto immigration lawyer Pantea Jafari had laid out her concerns about the new preclearance act at a Senate committee hearing in 2017. (Senate of Canada)

Preclearance act explained

Canada’s new preclearance act overrides a previous agreement with the United States that allowed travellers to clear U.S. customs in preclearance zones at Canadian airports, before flying across the border. Eight major Canadian airports already have preclearance areas — and the new act paves the way for more zones involving all modes of transport.

Proponents say preclearance offers many benefits, including allowing Canadians to clear U.S. customs in their own country.

“They land in the U.S. as a domestic passenger, so you don’t have to go through long lineups,” said Gerry Bruno, co-chair of the Beyond Preclearance Coalition, an industry group supporting efficient Canada-U.S. border travel. 

A scene from a preclearance explainer video showing the benefits of clearing U.S. customs, before actually flying into the country. (Toronto Pearson Airport/YouTube)

While they don’t dispute the benefits of preclearance, some immigration lawyers claim the new act could jeopardize Canadian rights. 

The big concern is that American preclearance officers could now further interrogate Canadians who withdraw their application to enter the U.S., perhaps because they feel uncomfortable during a customs inspection.

Previously, law-abiding travellers could simply leave and return home, because they were still on Canadian soil. 

Now they could be detained — even handed over to Canadian authorities to face charges — for refusing to answer questions about why they’re withdrawing.

“You say, ‘I think you’re racially profiling me and I’m offended. I don’t want to go to your country, I want to leave,'” said Calgary-based immigration lawyer Michael Greene. “[U.S. officers are] entitled to examine those reasons and if they think you’re not being truthful, they’re entitled to detain you.”

Government defends changes

Jafari said the new rules are especially troubling for racialized populations, such as those of Middle Eastern descent, who could be targeted for questioning. 

“We’re the ones that are deemed the threat, right; the domestic threat of some sort that they need to data mine.”

Public Safety Canada said the withdrawal rules were revamped to prevent bad actors from probing preclearance zones in search of a weak entry point.

“Allowing a traveller to withdraw without any type of examination creates challenges in terms of border security,” spokesperson Tim Warmington said in an email.

He added that U.S. preclearance officers questioning travellers who opt to withdraw can’t “unreasonably delay” them.

But what constitutes an “unreasonable” delay could be open to interpretation, argues Greene.

“When you look at it from the U.S. perspective of wanting to protect the security of the country, that could result in some very extensive questioning,” he said.

Protected by Canadian rights?

Bruno said that law-abiding travellers shouldn’t encounter problems at the preclearance zones, and maintains that it beats clearing customs in the U.S., where you “can’t withdraw.”

“You’re there. You’re subject to U.S. laws,” he said.

U.S. preclearance officers in Canada must follow Canadian laws, including the charter and Human Rights Act. In 2017, Prime Minister Justin Trudeau made this point when defending the new act — before it had become law. 

“There is extra protection,” he told The Canadian Press

However, Canada’s privacy commissioner has argued that protection appears to be “hollow” due to Canada’s State Immunity Act, which grants the U.S. government immunity in most cases.

“A Canadian who believes a U.S. customs official has broken Canadian law has little recourse in the courts,” states the Office of the Privacy Commissioner’s website

Right to strip-search?

Immigration lawyers are also concerned that under the new act, U.S. preclearance officers can now strip-search Canadian travellers.

Public Safety spokesperson Warmington said that U.S. officers must have reasonable grounds to do the search and that it will only happen in rare circumstances “where Canadian [border] officers are unable to respond or decline.”

Immigration lawyer Len Saunders said he’s been swamped with calls from Canadians distraught and confused over receiving a five-year ban at a Canada-U.S. land crossing. He’s now worried about what might happen in airport preclearance zones.

Immigration lawyer Len Saunders said his concerns with the act are compounded by the fact that some customs officers appear to be getting tougher at U.S. land crossings along the country’s northern border.

In 2019, U.S. Customs and Border Patrol doled out almost double the number of five-year bans to travellers crossing from Canada, compared to 2018.

“When the Americans are treating Canadians like this on American soil, why would you allow them so much autonomy on Canadian soil?” said Saunders, whose office sits close to the Canadian border in Blaine, Wash.

“I’m appalled by what the Canadian government has agreed to.”

Travellers who feel mistreated can submit feedback to a “preclearance consultative group” set up to provide oversight, said Warmington. 

He also pointed out that Canadian customs officers will have equal powers in U.S. preclearance zones.

Canada currently has no preclearance zones in the U.S., but Warmington said the government is “exploring the potential.”

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