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Canadians travelling to or through U.S. should pay close attention to their withering rights

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Latest changes to Preclearance Agreement give U.S. officials dangerously extended power on Canadian soil

Increased authority given to U.S. border guards under amendments to the Canada-United States Preclearance Agreement earlier this year includes the ability to deny Canadians their right of withdrawal in preclearance zones. (Jacquelyn Martin/The Associated Press)

This column is an opinion by H.M. Jocelyn, a Ph.D. candidate in American Studies at Rutgers University-Newark. A dual Canadian-American citizen, she was born in Stratford, Ont., and crosses the international boundary between the two nations many times a year. For more information about CBC's Opinion section, please see the FAQ.

The United States and Canada share what's been known as the longest undefended border in the world, because of the neighbourly sentiment between the nations. Now defence has become irrelevant, because Canadian lawmakers have effectively invited an invasion by U.S. border authorities.

In the political climate of President Donald Trump's Muslim ban and Facebook groups comprising bigoted customs agents, Canadians travelling to or through the U.S. need to pay close attention to their withering rights.

While far less violent than the horrors at the southern boundary of the United States, problems arising across the northern U.S. line are alarming. Incidents of racial profiling against travellers of colour have risen significantly, and the number of people turned back by U.S. border guards has seen an increase in recent years.

The most recent incursion by U.S. border officials comes in the form of amendments made earlier this year to the set of laws that facilitate cross-border movement, known as the Canada-United States Preclearance Agreement.

Travellers on their way from Canada into the United States should be aware that these changes, ostensibly enacted to increase the efficiency of travel and trade across the boundary, give U.S. officials dangerously extended power in Customs preclearance areas on Canadian ground (currently found in some Canadian airports).

A line crossing the Haskell Library and Opera House in Stanstead, Que., marks the border between Canada and the U.S. Built in 1901, the library that straddles the international border at Derby Line, Vt., has long been a symbol of harmony between the two countries. (Paul Chiasson/Canadian Press)

U.S. officials can now carry sidearms in these preclearance zones, conduct strip searches, record and keep passenger information, and detain Canadian citizens.

Even if a Canadian official is unwilling to conduct a search or has deemed a detainment unnecessary, a U.S. official can override that call. In other words, Canadian law enforcement can now be countermanded within Canada by Americans.

This new authority also allows U.S. border guards to deny Canadians their right of withdrawal. Before the amendment to the law was enacted, if a person felt at all uncomfortable in the course of preclearance questioning, he or she could simply leave, retracting their intention to cross the border with no penalty.

Now, as a result of amendments, the guard is entitled to detain a person if "reasonable grounds" are found to do so. And the request to leave in itself could be construed as reasonable grounds.

As Michael Greene, a Canadian immigration lawyer, puts it: "they wouldn't be able to walk out. They can be held and forced to answer questions" — even if the questions are discriminatory.

The amendments to the Preclearance Agreement effectively mean that there will be no repercussions for anything 'done or ommitted' by U.S. border officials in the exercise of their powers. (Stephen Chernin/Getty Images)

Each new provision in the Preclearance Agreement comes with a similarly vague, deeply troubling caveat. For example, section 10(2) states, "A preclearance officer 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." It adds that, "a 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."

However, there are questions about how the Charter would be applied in the case of a dispute, and the agreement contains sections that put some of the limits in question. For example, "In a preclearance perimeter, a preclearance officer may, for the purpose of conducting preclearance or of maintaining the security of or control over the border between Canada and the United States, direct that a person identify themselves and state their reason for being in the preclearance perimeter; question a traveller bound for the United States; direct a traveller bound for the United States to go to a preclearance area; … examine, search and detain goods."

Another section says, "A preclearance officer is, if they act on reasonable grounds, 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."

In other words, authoritarian behaviour is prohibited — except as the U.S. deems necessary.

The intention of equivocal statements such as these can only be a broader interpretation of the limit (or limitlessness) of American power.

Scarier still is the provision that undergirds every amendment to the agreement: that U.S. border officials will not be held accountable for impropriety.

In the exact language of the bill, "no action or other proceeding of a civil nature may be brought against a preclearance officer in respect of anything that is done or omitted in the exercise of their powers or the performance of their duties and functions" under the legislation.

So there will be no repercussions for anything committed in the exercise of their powers.

Border preclearance zones are currently found at some Canadian airports. (CBC)

This is a menacing leniency in our era of partisan conflict and rampant xenophobia.

Groups such as the Iranian Canadian Congress have expressed concern at these new broad powers, perturbed at their potential: "With the rise of discriminatory instances against Iranians in both Canada and the United States, and the current political climate between Iran and the two countries, removing the safeguards for withdrawing allows preclearance officers the ability to racially profile Iranian-Canadians with no restrictions or recourse for Iranian-Canadians."

Their worry is understandable, considering the concomitant increases in individual power and instances of racism among U.S. border guards.

It cannot be left to the whims and biases of individual U.S. officials to decide what happens to Canadian citizens in Canada. Trump encourages prejudice and discourages international partnership. There is a staggering hypocrisy in building a wall — or a moat full of alligators — at the border to the south, while extending jurisdiction across the border to the north.

Under Trump's leadership, any latent intolerance among border-protection agents is given room to roam. For Prime Minister Justin Trudeau to allow the practices of such an administration to seep over the borderline onto Canadian soil is to condone the behaviour of Trump's regime.

Worse, Trudeau's government is empowering foreign officials and disempowering Canadian citizens. He is kowtowing to American imperialism.

This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.

Corrections When originally published, this story contained an incorrect reference for a section of the preclearance agreement, and paraphrased text was not properly set off from text quoted from the agreement. The reference has been corrected, and the agreement has been quoted without paraphrasing for clarity, along with a fuller description of the author's reasoning for their point of view.

Dec 21, 2019 1:06 PM ET

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