Canadian customs officers could soon be posted to U.S. border posts on American soil for the first time in history, and American officers could be assigned to work from border posts in Canada, CBC News has learned.
“It’s a fundamental shift,” said Mark Weber, president of the union that represents Canadian border officers. “You’re working in another country … It’s game-changing.”
If approved, the regulations being proposed by the federal government would allow the program to expand to other border crossings across the country.
The initiative would start with a two-year pilot project at the tiny border crossing of Covey Hill/Cannon Corners at the border between Quebec and New York State. The pilot project, which could be in place as soon as June, would see Canada Border Services Agency (CBSA) officers move in with their U.S. counterparts at the American border post, about 200 meters from the Canadian post.
Currently, the Covey Hill border crossing is open from 8 a.m. to 4 p.m. ET and traffic ranges from about 12 vehicles a day to 41 a day during the summer peak season.
Under the pilot, the CBSA would provide most of the usual services at the preclearance post in the U.S. but would have to refer any refugee claimants to a different border post located on Canadian soil.
Denis Vinette, vice-president of traveller services for the CBSA, said the move has been in the works for years but it took time to negotiate it with the Americans.
“Now is the right time,” Vinette told CBC News. “We are investing in infrastructure, both in Canada and the U.S, along the border and so this would inform opportunities, perhaps, for co-location in the future at some of the sites, both in Canada [and] the U.S.”
The proposal also raises serious questions for immigration lawyers and the union that represents CBSA officers.
Denis Vinette, vice-president of travellers’ services for the CBSA, describes the process travellers would encounter at the proposed Canadian pre-clearance posts in the U.S.
Robert Israel Blanshay, a member of the Canadian Bar Association’s Immigration Law Section, said his group wants to know whether the Canadian Charter of Rights will apply at preclearance posts on U.S. soil and what the move will mean for refugee claimants.
“It’s the first time in the history of the country that we are considering placing border services officers, CBSA officers, in a foreign country,” said Blanshay. “At first blush it doesn’t seem like a bad idea, but there are a lot of implications for a lot of foreign nationals trying to gain admission into Canada.”
Weber said his union has not yet been consulted on the proposed move and has many concerns about health and safety and legal protections for CBSA officers assigned to posts on U.S. soil.
“If it can assist with interdiction efforts, if it could keep weapons, drugs, synthetic opioids … out of Canada. There could be benefits to it for Canadians,” he said.
“For our members, we have questions around health and safety. Does part two of the Canada Labour Code apply? What are the working standards when you’re in another country?
“We don’t know what our authorities will be. Will we have the right to seize, to detain, to arrest? We don’t know.”
Proposed regulations to enable the move were published quietly in the Canada Gazette on Dec. 16, the day after Parliament rose for its Christmas holidays. The public consultation on the proposal closes on Jan. 15, two weeks before Parliament resumes sitting.
The notice of a month-long consultation period over the Christmas holidays appears to have taken some groups by surprise. Blanshay said the Canadian Bar Association has not had enough time to study the proposal and is asking for an extension.
The government can adopt the final regulations after the consultation period ends. The CBSA said the regulations are a precondition for advancing discussions with the U.S. to set up the pilot project.
Preclearance between Canada and the U.S. first began in 1952, when American officers began providing preclearance at Canadian airports. That system allows passengers at those airports to be screened by U.S. officials while still on Canadian soil, meaning that they don’t have to line up and report to customs when they arrive in the U.S.
Currently, preclearance is available in eight Canadian airports and a ferry terminal in Prince Rupert, B.C. There are no Canadian officials doing preclearance on U.S. soil for passengers travelling to Canada. However, officers from both countries are working from the same building at two small border posts located right on the Canada-U.S. border.
In March 2015, four years after announcing the Beyond the Border agreement on North American perimeter security, Canada and the U.S. reached a deal to expand preclearance for travellers and goods beyond airports to land, rail and marine border crossings. In 2017, Parliament adopted Bill C-23 and the agreement went into effect in 2019.
In the consultation notice, the CBSA says the proposed change has a number of benefits.
“Establishing Canadian preclearance operations in the United States would support government and industry goals to facilitate the flow of legitimate travellers and goods across the border and increase the safety and security of Canadians and the Canadian economy by pushing the border out to prevent inadmissible people and goods from entering Canada,” the agency wrote. “Preclearance is also considered a cost-effective option for replacing small and remote ports of entry with aging infrastructure.”
U.S. criminal law would apply at shared border posts
The CBSA said it operates 80 small and remote ports of entry along the Canadian border, “many of which are in various states of disrepair.”
Vinette said U.S. criminal law would apply at the preclearance posts located in the U.S., but Canadian immigration and customs regulations would also apply.
“So if you were wanted on a warrant in the United States, we would not arrest you, we would detain you and transfer you to U.S. authorities,” Vinette said. “Being on U.S. soil, that is the law that would apply.
“But if you’re seeking to bring certain goods to Canada that are subject to seizure or payment of taxes, that we would exercise through the regulatory aspects of our work.”
Vinette said that just as American border officers working in Canadian airports are trained in Canadian law, CBSA officers working in the U.S. would be trained in U.S law.
Vinette said the CBSA is still working out the logistics of what would happen if an undocumented refugee showed up at a preclearance post on U.S. soil and was turned back and told to go to a border post located in Canada.
Blanshay said the proposed system could put refugee claimants in peril and the CBSA should process someone in accordance with Canadian law if they tell an officer at a preclearance post in the U.S. that they want asylum.
“They’ve made this look very sort of neat and easy and compartmentalized,” he said. “But the reality is you can’t predict, nor can you stop a foreign national from opening their mouth and stating whatever they want to state in terms of seeking admission to Canada, whether those are returning permanent residents [or] work permit holders or … refugee claimants.”
Weber questioned how the CBSA can staff preclearance posts when it’s already short of officers for existing border posts.
Vinette said the current plan is to implement preclearance for travellers at land borders and for commercial goods before they arrive in Canada. Further steps, like setting up Canadian preclearance in American airports, could come at some point in the future.
American officials have not yet responded to interview requests from CBC News.
Details of the plan and links to comment on it can be found here.
