Pete Hoekstra, the American ambassador to Canada, pondered the future of pre-clearance in Canada during a contentious meeting in Banff recently. Cross-border travel numbers are down, he complained, which makes the cost of the program less appealing to Americans.
Hoekstra’s remarks appeared to be a threat—almost a request—that Canadians return to the United States. However, should Canadians continue to avoid the area? Maybe it’s time to rethink Canada’s pre-clearance program with the U.S. and the ways it can undermine Canadian civil rights and sovereignty.
Initially informal, then formal Pre-clearance for U.S. customs in Canada dates back to 1952. It began as an informal arrangement at American Airlines’ request, which was interested in expanding its Canadian operations. Since then, the program has expanded to nine Canadian international airports and the Alaska Marine Highway System Ferry Terminal in Prince Rupert, B.C. Additionally, the Bahamas, Bermuda, Ireland, and the United Arab Emirates are now included in the United States’ pre-clearance facilities. Under Canada-U.S. pre-clearance arrangement, American border agents are located in Canada so that travellers can clear customs, immigration, public health and safety and agriculture inspection before they travel. Since it can screen travelers much earlier in their travels and stop suspicious travelers before they board their flights, this adds an additional layer of security for the United States. Despite the fact that recent legislation raises pressing concerns, pre-clearance in Canada has become so commonplace that it has not been subjected to a significant amount of scrutiny. A new treaty on land, rail, maritime, and air transportation pre-clearance was signed in 2015 by the United States and Canada. With new facilities scheduled to open soon at Billy Bishop Airport on the Toronto Islands and Québec City Airport, this legislation allowed for expanded pre-clearance. Pilot projects have also been introduced at train stations and ports, which raise their own issues because they’re often located in city centres.
Subsequently, Canada passed its new Preclearance Act that entered into force in 2019. The legislation not only brought the terms of pre-clearance up to date, but it also gave U.S. officers stationed in Canada new, concerning, and extensive police powers. If a Canadian officer is unavailable or unwilling to participate, American border agents can now conduct strip searches. The previous legislation of 1999 gave American border agents the authority to carry weapons and allowed them to use “as much force as is necessary to perform their pre-clearance duties” if they did so “on reasonable grounds.” But under the recent legislation, U.S. officers are “justified in doing what they are required or authorized to do under this Act and in using as much force as is necessary for that purpose.” To put it another way, the use of force is now acceptable. In addition, the 2017 legislation makes it possible for travelers to withdraw from the border process without prejudice, whereas in the past, this could be interpreted as cause for suspicion. Refusing to respond is considered obstruction, which is a criminal offense in both the United States and Canada, and the act of withdrawal itself becomes suspect. This can impede someone’s ability to enter the U.S. at a later date.
U.S. border agents can also detain people who are suspected of breaking the law as long as it doesn’t “unreasonably delay the traveler’s withdrawal” from the process. There is no time limit placed on what is meant by “unreasonably delay.”