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  • Writer's pictureCMLA

Pantea Jafari (CMLABoard Member, Public Safety and National Security Committee

Pantea Jafari Board Member, Canadian Muslim Lawyers Association

Thank you very much.

My name is Pantea Jafari. I'm a board member of the Canadian Muslim Lawyers Association. I'm very pleased to be here today. Thank you for having us.

As my colleague suggested, we represent not only Canadian Muslims, of course, but also a wide umbrella of people who are increasingly caught by measures to detect terrorism and control security at the borders. It's practising and non-practising Muslims alike. It's all sorts of racialized and vulnerable populations who seem to fall under that umbrella and disproportionately bear the brunt of these sorts of legislation in terms of increased targeting and enforcement at the borders.

With that lens in mind, we're very concerned about the proposed amendments, given the present authorities that are enclosed in the pre-clearance legislation.

We have two overarching concerns with the bill.

One is that it's basically being posed as of great benefit to Canadians, as we would have the protection of the Charter of Rights and Freedoms in our efforts to cross borders into the U.S., and the conduct of U.S. border officials would be curtailed by the application and protections afforded by the charter.

The concern becomes that the remedies and mechanisms for holding the border officials accountable for those charter protections are missing from the act. The Canadian Civil Liberties Association has spoken about these at length. The fact that there are explicit civil immunities against officers in the bill, the fact that the State Immunity Act applies—which essentially means that even the U.S. government is immune, save and except for when there's a death, bodily injury, or damage to property—and the fact that there's an explicit provision that U.S. border officials will not be crown agents means that recourse to Canadian courts and Canadian law is also barred.

In effect, while the protection framework is there—the bill does say that charter rights and Canadian human rights all apply—the mechanisms to give meat to this claim are not present in the bill and are explicitly excluded.

The second major concern is that the fact that the Charter of Rights exists in Canada requires that any act proposed be minimally intrusive of the rights that the Canadian charter protects. In our research on this bill, in the testimony before you last week and the week before, and in the House of Commons we haven't heard a justification for the vastly increased and expansive investigative and search powers afforded under the bill.

While the minister testified at the opening of this committee's consideration of this bill that U.S. counterparts were very comfortable and very pleased with what's happening with the Canadian pre-clearance areas.... Mr. Picard, you even mentioned that when you visited the U.S., your counterparts were also very pleased, that security wasn't really something they were considering foremost for this bill, and that it was more the increased flow of travel for business and for pleasure.

When you come at the bill with that lens in mind, without an explicit justification for these expansive powers and when the U.S. is stating that they're presently pleased with the way in which the pre-clearance areas are operating, there is cause for concern about why these additional powers are being granted.

With respect to the extensive powers that are granted, Mr. Greene covered the withdrawal provisions at length, so I won't go into those. The one thing I want to add to that consideration is this. The present legislation explicitly protects a traveller wanting to withdraw from a pre-clearance area; the act of withdrawal in and of itself can't be deemed reasonable grounds to suspect that an offence under an act of Parliament has been committed. That explicit protection is removed in the bill. It's not to say that the act of withdrawal in and of itself is going to cause that, but the fact that the protection isn't there is extremely concerning.

As Mr. Greene mentioned, it leaves open the situation in which the bill proposes two criminal charges that could be laid against an individual traveller. One is the charge of false or deceptive statements. It's a summary conviction offence under the act but that has the potential to lead to criminal inadmissibility under immigration laws. That means that a foreign national, if charged on two separate occasions with having provided false or deceptive statements, can be deemed inadmissible to Canada and not only lose their status presently but also be barred from coming back to Canada for a period of time.

The second concern is that the law entails the charge of resisting or obstructing a border officer. This is an indictable offence although it is listed under the bill as a dual or hybrid offence, which could be charged summarily or by indictment. Under Canadian immigration law, it means that will be deemed an indictable offence. The charge itself and a conviction under it could leave permanent residents and foreign nationals possibly vulnerable to being deemed inadmissible on serious criminality.

These expansive powers are given to border services officials, and we're in a context where, post-9/11, there have been 15 years of pent-up frustration of racialized and vulnerable populations at the borders—or even local policing for that matter as we see through Black Lives Matter movements and things like that. When these populations are coming to the borders and to the pre-clearance areas with potential for criminal charges that could lead to the stripping of their immigration statuses, that becomes a huge cause for concern where there aren't any parameters for safety checks and oversight into the act and into the process and procedures for the pre-clearance legislation.

Those individuals who come to the borders now are going to have to subject themselves to increased scrutiny, investigation, and increased search powers. Again, the Canadian Civil Liberties Association addressed this in detail, which I won't take our time to address. When that happens, they have to subject themselves to what they deem to be very unreasonable, frustrating circumstances in order to gain the benefit of the act, which is to allow for increased business and leisure travel. This means having the benefit of easily attending conferences and things like that across the border, especially when employers may be requiring that of a traveller. They either have to subject themselves to that or risk criminal sanctions. Even the act of withdrawal, in and of itself, could lead to those same or similar types of questioning.

It becomes a huge concern for our organization specifically that there are first-hand accounts of these lived experiences at the border. I, as an immigration practitioner, get these experiences second-hand from both our clients and our community members.

If under present laws, people are routinely being questioned for five to six hours on end about their intentions, which then leads to their religious beliefs, their opinions on the current president, or things like that.... When you get to a situation in which an officer actually suspects the commission of an offence, whether it's providing a false statement or something more serious than that, there isn't a curtailment of the investigative powers of that officer. There is a provision that they can question the traveller or collect information from the traveller point-blank.

There is no restriction that it be limited to the offence that they think the person has committed or may have committed. It's just a blanket right to question the traveller and to collect information on the traveller. That information is then allowed to be retained as well due to some other changes.


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