A Canadian law which received final approval last week, Bill C-23, gives officers of U.S. Customs and Border Protection (CBP) staffing “preclearance” facilities within Canada police powers to detain, interrogate, and search travelers, while granting these agents of the U.S. government absolute and unconditional immunity from any civil lawsuit or liability under Canadian law, and immunity from criminal liability except in limited cases of death, injury, or property damage.
This immunity from civil lawsuits or liability in Canada extends to violations by US CBP officers at preclearance sites of fundamental rights, including the Canadian Charter of Rights and Freedoms, that are protected by law everywhere else in Canada,. Bill C-23 places CBP officers above Canadian law, as though they were diplomats enjoying immunity from local law inside extraterritorial enclaves, while giving them police-like powers to use force against ordinary people seeking to travel between the US and Canada.
- Provide government-issued photo ID to CBP officers;
- Answer questions from armed CBP officers about their identity, reasons for entering the preclearance site, and reasons for leaving if they choose to leave;
- Submit to detention by CBP officers;
- Submit to searches including strip searches by CBP officers; and
- Comply with any orders from CBP officers.
The new authority of CBP officers to conduct searches, within Canada and while immune to civil lawsuits, extends to strip searches.
The new authority of CBP officers to interrogate travelers within Canada is reinforced by new requirements to obey orders from CBP officers and to answer their questions. For a traveler being questioned by a CBP officer at a preclearance site in Canada to assert the right to remain silent which she would have under the Fifth Amendment to the US Constitution if questioned in the US by a CBP officer is now a violation of Canadian law. CBP officers now have even more power, with less accountability, at preclearance sites outside the US where they should lack authority outside their jurisdiction.
Enactment of Bill C-23, over the objections of Canadian civil liberties and human rights organizations and in the face of protests at ports, sets a disturbing precedent of capitulation to US threats to close US borders against people and goods from countries that don’t acquiesce to US assertions of extraterritorial jurisdiction to wield force without limitation or accountability.