Canada's Original Think Tank

Third reading of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States

Third reading of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States

Third reading of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States

Hon. Serge Joyal: 

Honourable senators, let me say at the outset that I support the objective of this bill. As both Senator Black and Senator Housakos explained to us, nobody would question the merit of the bill in terms of the celerity of admission to the U.S. or the movement of goods through borders.

Honourable senators, I would like to remind you of one thing: When Parliament adopted the Charter of Rights and Freedoms in 1982, our system of government was transformed — and here I reference Supreme Court Justice Dickson from 1986 — from a system of parliamentary supremacy to one of constitutional democracy.

What does that mean? Essentially, it means that neither the government nor Parliament is supreme. Both of them are bound by the Charter of Rights and Freedoms and by the respect of those rights that are entrenched in the Constitution of Canada.

When we approach a bill such as this — which, as Senators Housakos and Black mentioned, has been the object of extensive negotiations between the two governments — we must consider the result of the negotiation in terms of the measure of its impact on the rights and freedoms of Canadians.

Let me provide one example. When the Canadian government signs an agreement with the U.S. to exchange information about Canadians who might be suspected of terrorism, nevertheless, the Canadian government remains responsible for the information they provide to the foreign country — i.e., the United States — as well as for the use that the United States might make of that information, and for the treatment given to Canadians who happen to be on American or foreign soil on the basis of the information that has been transferred.

I don’t need to remind you of the Maher Arar case — the lengthy investigation, the fallout from the conclusion of that inquiry, and the compensation that was paid to this Canadian, essentially on the basis of the use of information that was transferred by the Canadian government to a foreign country.

It seems to me that when we look into an agreement like this one — which, as I say, nobody would deny the benefit of in terms of the celerity of the treatment of Canadians crossing the border or the movement of goods to the United States — every one of us would agree with this, and I would be the first to support it, in principle. I cross the border many times during the course of a year. However, this should not prevent us from testing this bill in terms of the measure of the rights and freedoms that Canadians enjoy. The Canadian government does not have the capacity to negotiate or barter the rights and freedoms of Canadians for the benefit of celerity, nor to agree to all kinds of conditions that we find in this bill which, in my opinion, are problematic.

I will mention, honourable senators, three sections where I feel this bill is still problematic. These concerns were outlined last Monday. I read through the minutes of the committee, and I raised these concerns at second reading. They were amply explained by the Canadian Bar Association, the Quebec bar, the Privacy Commissioner, the Muslim Association of Canada, the International Civil Liberties Monitoring Group, and the BC Civil Liberties Association, all of whom testified before the committee.

I’m looking at Senator McIntyre. He attended the committee, and I read the question he posed to the witnesses. I was enlightened by the questions that were asked by our colleagues and by the answers we received.

I still feel that there are three sections of the Charter that make this bill problematic.

The first section of the Charter is section 8, and I’ll read it:

Everyone has the right to be secure against unreasonable search or seizure.

Bill C-23 contains a section, section 22, that allows a strip search even though a Canadian officer has refused to perform it. I repeat: You are on Canadian territory, and a Canadian officer refused to perform the strip search. Nevertheless, the American officer is entitled to perform it, or he is entitled to perform it in the absence of a Canadian officer. To me, that is a gross violation of section 8 and is challengeable in any court of law, because a strip search has been deemed by the Supreme Court as the most intrusive and the greatest violation of a Canadian’s dignity. There is ample jurisprudence on that, the last one being a decision in Ward v. British Columbia in the province of British Columbia in 2010.

That clause of the bill, in my opinion, is challengeable immediately for anyone who would be the object of such a search.

Senator Black tells us it has never happened. If it has never happened, why did we put it in the bill? There is no need to give that power to an American officer if that risk has never happened in the past.

The second section of the Charter that is problematic is section 9:

Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10,“Everyone has the right on arrest or detention . . .” to be informed and to have a lawyer. We all know the Criminal Code protection in relation to somebody who is arrested or detained.

In the bill, unfortunately, a Canadian passenger who decides to withdraw from pre-clearance could be detained at the will of the officer without the criteria of reasonableness that Senator Black has mentioned and with absolutely no reasonable grounds to believe that that person is in the process of committing a crime or is part of a network of terrorists or is trying to move goods illegally into the States. The American officer can immediately detain a person who decides to withdraw.

Honourable senators, we don’t yet have Bill C-45 in this chamber, but think for two seconds about a Canadian citizen who is allowed to have cannabis in his pocket or in his knapsack, who goes to pre-clearance and suddenly realizes that he has two joints that he is not allowed to take into the United States, so he decides to withdraw. He could immediately be detained and have to go through all of the processes that are provided in clause 29.

In other words, we have to be very mindful that this bill contains a clause that will be very problematic if Bill C-45 is adopted and becomes law.

The third clause of the bill, which is still problematic, is clause 24.Clause 24 of this bill allows any Canadian whose right has been violated, and I will read it, “. . . may apply to a court of competent jurisdiction to obtain such remedy . . . .”

The Canadian government has been very wise in negotiating that agreement and adding something that the Americans did not request, which is to absolve Canadian officers and the Canadian government of any responsibility.

The Americans, they don’t ask the Canadian government to absolve themselves of responsibility, but the government put that clause in the bill.

Motion in Amendment

Hon. Serge Joyal: Therefore, honourable senators, in amendment, I move:

That Bill C-23 be not now read a third time, but that it be amended

(a)on page 10, in clause 22, by deleting lines 8 to 19;

(b)on page 12, in clause 26.1, by replacing line 37 with the following:

“in sections 22, 23, 24 and 32”;

(c)on page 14,

(i)in clause 29, by replacing lines 1 to 3 with the following:

29 Subject to sections 13 to 15 and 32, every traveller bound for the United States may withdraw from preclearance and leave a pre-”, and

(ii)by deleting clause 30;

(d)on pages 14 and 15, by deleting clause 31;

(e)on page 16,

(i)in clause 32, by replacing lines 5 to 7 with the following:

“(5) and sections 25 and 26.”, and

(ii)in clause 33, by replacing line 22 with the following:

“paragraph 32(1)(b) to produce biometric”; and

(f)on page 19, in clause 39, by deleting lines 18 to 20.

I apologize, honourable senators, for all those calculations. Of course, when you change one clause, you have to renumber and replace the paragraphs and whatnot.

If the amendments can be circulated, I would appreciate that, so that honourable senators will understand the point.

I think this is a very important bill because it trades the rights of Canadians for a benefit that we all agree is desirable. Celerity of passengers and the moving of goods is something that has to happen and be maintained between the borders, but it cannot be at the expense of Canadians to enjoy the protection of those rights of the Charter that have been outlined and their capacity to seek redress if they are the object of violation in the context of the protection that they enjoy as Canadians.

Don’t forget, they are still on Canadian territory. We are still dealing with pre-clearance on Canadian territory. We are not dealing here with pre-clearance on American soil. This bill applies on Canadian territory. How can the government negotiate with a foreign country lesser rights than Canadians enjoy in the Constitution?

Honourable senators, read the testimony of the Canadian Bar, of the international civil liberty groups, of the BC Civil Liberties Association, and you will realize that there are very important issues that are included in this bill that need to be addressed.

As Senator Black was saying, it’s a deal; take it or leave it. If you don’t accept the way that this bill is packaged and negotiated, forget it.

I don’t think it works that way, honourable senators. There is a provision in this bill that allows the Canadian government to raise issues and to transfer, express and negotiate with the American government the obligation and responsibility that binds the Canadian government. I’m quite sure that the amendments that I am requesting are not amendments that endanger the substance of the bill, that will make it more complex for the Americans to perform the responsibility.

As you have said yourself, those concerns are “minor,” to quote your own terms. If they are minor, why don’t we fix them to avoid those provisions in the bill from becoming the cause of challenges in court, of lengthy and costly procedures, and, finally, compensation in the amount of money that we have had in past years following the experience we have had with other agreements that we have signed with foreign countries whereby the use of the information was made not in the context of the respect of the rights and freedoms that Canadians enjoyed?

I feel very strongly about this matter, honourable senators, because my conviction on the basis of the testimony that the committee heard opened this bill, unfortunately, to a serious and lengthy challenge, and it is our responsibility in this chamber to put those issues on the table and to see how we can improve the bill in the context of respecting rights and freedoms. I’m not asking anything more than we make sure that we are not, for the overall objective of the good, creating some problems that will come to haunt us one day.

Again, I don’t want to threaten you about this. But I want to alert you about the extreme vetting at the border that, when Bill C-45 is adopted, the present American government wants to perform, especially if you’re a youngster with long hair.

You know the look that I’m thinking about; it will immediately be suspected that you might be carrying a substance that in the eyes of the American government is illegal and that you are not allowed to take to the United States.

This is a very immediate and serious issue, and I’m not dreaming about that. I read the report that former Minister of Justice McLellan tabled on cannabis legalization and nobody was able to answer in the other place when that question was put to them.

Honourable senators, let’s make sure that this bill is Charter-proof so that we do not find ourselves in a nightmare on July 1 or July 2 when youngsters flock through customs.



Senator Ringuette: Thank you, Senator Joyal, for agreeing to take my questions. I listened to your speech with great interest. You are the Chair of the Standing Senate Committee on Legal and Constitutional Affairs and thus were present when this bill was studied. Did Department of Justice officials appear before your committee? Were they asked questions about your proposed amendment?

Senator Joyal: Honourable senators, Bill C-23 was not studied by the Standing Senate Committee on Legal and Constitutional Affairs, but rather by the Standing Senate Committee on National Security and Defence. We heard from the departments involved. I am thinking in particular of the testimony of Ralph Goodale, Minister of Public Safety, who is responsible for the bill.

I read the transcripts of the committee’s debates, in particular the comments and the amendments presented by the groups in attendance last Monday, including the Canadian Bar Association, the Barreau du Québec, the Privacy Commissioner of Canada, the Canadian Muslim Lawyers Association, and the British Columbia Civil Liberties Association. The comments made during these hearings did not address the objections raised by these different expert organizations, which we hear from regularly at the Standing Senate Committee on Legal and Constitutional Affairs and at other committees when considering amendments to legislation related to the Canadian Charter of Rights and Freedoms.

Having read the debates and the responses given by the various government witnesses, I do not believe that they responded to the concerns expressed by these organizations that specialize in studying and reporting on rights and freedoms.

Senator Ringuette: However, we always hear that thorough consultations occur before government bills are tabled in order to assess their constitutionality and Charter compliance. Are you telling us that this procedure was not followed or that there was some deviation?

Senator Joyal: Basically, what I’m saying is that under section 4.1 of the Department of Justice Act, a bill tabled in either the House of Commons or the Senate normally has to be examined by the Minister of Justice. However, that examination is not made public. If any doubts are raised during the department’s study, they will not be presented at the same time as the bill. That is the first of Parliament’s limitations when debating legislation. Even if the Department of Justice issues a recommendation indicating that a bill has some problems, the government can decide to table it anyway for political reasons and see that it is passed. That doesn’t make the bill—

I was looking at my friend Senator Wetston. You might absolve me of that comment senator. It doesn’t make the bill kosher because the government has decided to move forward with a bill whereby there might be weaknesses in relation to the Charter.

The Supreme Court gives decisions month after month on government bills. And I don’t want to revive some debates we have had here on minimum sentences, whereby the Supreme Court and the Court of Appeal of Ontario, and B.C., on many occasions have concluded that minimum sentences are not acceptable within the confines of the Charter in relation to a specific offence. It’s not because the bill is tabled that it is, at first sight, immune of any violation of the Charter.