In a perfect world, law-abiding travellers would move across the Canada-United States border quickly and seamlessly. But in a perfect world, there would also have been no 9/11, and the threat of terrorism wouldn't exist.
Those realities have created a tension between the Canadian desire to speed people across the border with minimal delay, and the American desire to carefully screen every visitor. Which is why the Trudeau government's proposed Preclearance Act, which aims to write into law an agreement signed two years ago between the Harper government and the Obama administration, is so controversial, and so necessary.
The bill will bring U.S. Customs and Immigration preclearance to more Canadian airports and ports of entry, such as train stations and cruise ship terminals – something every traveller should want. But as a trade-off to satisfy the U.S. government, it will also give American officers greater powers to question, detain and search Canadians at preclearance facilities – which are on Canadian soil.
That includes the ability to perform a strip search, and allowing some U.S. preclearance officers to be armed. It also ends the ability of a person to walk away from a preclearance interview unhindered if they change their mind and decide not to enter the U.S.
The U.S. Congress passed its enabling legislation months ago, and Ottawa had hoped to have its own version adopted by now.
But public pressure and concerns from civil liberties groups – heightened by the election of Donald Trump last fall – effectively stalled the bill. It was finally passed by the Commons in June and is now in the hands of the Senate.
On the face of it, this should be a no-brainer. Preclearance has existed at major Canadian airports for decades. As a result, most Canadian air travellers already go through U.S. Customs and Immigration in Canada. When they land at their American destination, they walk off the plane without further inspection.
Americans doing the preclearance are about to get more powers, however. For instance, the bill states clearly that if a U.S. preclearance officer decides to carry out a strip search on a traveller, he or she can do so if a Canadian border agent isn't available.
Critics are galled by the thought. They are also troubled by a legal change that will prevent a person from withdrawing from preclearance. Under the current law, a traveller who doesn't like the questions he or she is being asked, or who knows they are about to be rejected for entry into the U.S., can simply walk away. But under the new law, once they start the preclearance process, they may be obliged to answer questions from U.S. officers, and can even be temporarily detained.
However, the bill will not allow a U.S. officer to strip search a Canadian who chooses to withdraw. They can only ask questions about who they are and why they are withdrawing, and can only detain them for a "reasonable" amount of time.
The preclearance zones in Canadian ports of departure are already mini-Americas, and will become more so. The powers of the U.S. officers here would be closer to those their counterparts on U.S. soil enjoy, which raises another worry: the stigmatization of Muslims by Mr. Trump's government.
Critics of the bill say the new authority given to U.S. preclearance officers could lead to problems for Muslim-Canadian travellers. In theory, a person facing unfair questions, who decides to withdraw from seeking entry to the U.S., might be treated as suspicious by American officials, leading to more questions, temporary detention and, if they don't co-operate, even the possibility of arrest by Canadian officers.
These are understandable concerns. But they are also hypothetical, and they fail to take into account a simple reality: a Canadian who is aggressively questioned by an overly-zealous U.S. border official is far better off having that happen in Canada than in an American airport, at the other end of their journey.
The proposed law makes it clear that U.S. preclearance officers are subject to Canadian law and the Charter of Rights, and that they will not "exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest that are conferred under the laws of the United States."
In short, Canadian law reigns. The powers of U.S. preclearance officers will come from Parliament. If abuses occur, the law that led to them can be challenged in Canadian courts.
Ottawa's legislation expands preclearance while responding in a measured, limited way to U.S. security anxieties. Did Canada want to give new powers to American officers? No. As the Rolling Stones put it, you can't always get what you want – but if you try, sometimes, you get what you need. This is what Canada had to give up to get what it needed, namely a smoother and more open American border.
The sooner this bill becomes law, the better.