At a testy meeting in Banff recently, the American ambassador to Canada, Pete Hoekstra, mused about the future of pre-clearance in Canada. Cross-border travel numbers are down, he complained, which makes the cost of the program less appealing to Americans.

Hoekstra’s comments came across as a threat — almost a demand that Canadians resume travelling to the United States.

But should Canadians continue to stay away? Maybe it’s time to rethink Canada’s pre-clearance program with the U.S. and the ways it can undermine Canadian civil rights and sovereignty.

Started informally, then expanded

The origins of U.S. customs pre-clearance in Canada date back to 1952. It began as an informal arrangement made at the request of American Airlines, which was interested in building up its business in Canada.

Since then, the program has expanded to nine Canadian international airports and the Alaska Marine Highway System Ferry Terminal in Prince Rupert, B.C. The U.S. has also expanded its pre-clearance facilities to the Bahamas, Bermuda, Ireland and the United Arab Emirates.

Under Canada-U.S. pre-clearance arrangement, American border agents are located in Canada so that travelers can clear customs, immigration, public health and safety and agriculture inspection before they travel. This provides an additional layer of security for the U.S. since it can screen travelers much earlier in their travel journeys and stop suspicious travelers before they board their flights.

For Canadian travelers, it makes crossing the border faster. By clearing customs in Canada, they don’t need to wait in long lines when they arrive in the U.S. This makes it much easier to catch connecting flights and also means airlines can fly into smaller American airports from Canada, which can be cheaper and more convenient.

Police powers

Pre-clearance in Canada has become so commonplace that it’s not faced significant scrutiny, even though recent legislation raises pressing concerns.

In 2015, the U.S. and Canada signed a new treaty on land, rail, marine and air transport pre-clearance. This legislation opened the door to expanded pre-clearance with new facilities at Québec City’s airport and Billy Bishop airport on the Toronto islands, scheduled to open soon. Pilot projects have also been introduced at train stations and ports, which raise their own issues because they’re often located in city centers.

Subsequently, Canada passed its new Preclearance Act that entered into force in 2019. The legislation updated the terms for pre-clearance but also introduced worrisome and expansive new police powers for U.S. officers on Canadian soil.

American border agents now have the power to conduct strip searches if a Canadian officer is not available or is unwilling to participate. American border agents also have the authority to carry weapons.

Under the previous legislation of 1999, U.S. border agents were authorized to use “as much force is necessary to perform their pre-clearance duties” if they did so “on reasonable grounds.” But under the recent legislation, U.S. officers are “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, the use of force is now legitimized.

Furthermore, while it was previously possible for travelers to remove themselves from inspection without prejudice, under the 2017 legislation, their withdrawal from the border process could be interpreted as grounds for suspicion.

The act of withdrawal itself becomes suspect, with refusal to answer taken as obstruction, which is a criminal offence in both the U.S. and Canada. This can impede someone’s ability to enter the U.S. at a later date.

If someone is suspected of committing an offence, U.S. border agents are also able to detain them as long it does not “unreasonably delay the traveler’s withdrawal” from the process. There is no time limit placed on what is meant by “unreasonably delay.”

Worrisome legislative changes

When the new Preclearance Act was introduced, Prime Minister Justin Trudeau tried to assuage concerns by explaining that pre-clearance allowed more protections for travelers because the Canadian Constitution would apply in Canada.

The act itself states:

“The exercise of any power and performance of any duty or function under United States law in Canada is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.”

But can these protections really be assured when there are overlapping jurisdictions at play?

Take U.S. President Donald Trump’s most recent 2025 travel ban that fully bans nationals of 12 countries and partially bans nationals of seven others.

As Amnesty International argues, Trump’s bans are “targeting people based on their race, religion, or nationality, from countries with predominantly Black, Brown and Muslim-majority populations.” Yet these bans are being enforced in Canada via these pre-clearance areas, meaning the rights and protections against discrimination set out in Canadian laws are not being upheld.

Under the terms of the 2015 treaty, pre-clearance officers also receive immunity for civil and administrative offences in their host countries. Furthermore, the U.S. passed legislation a year later stipulating the U.S. has jurisdiction over offences committed by American personnel stationed in Canada.

As Canada’s privacy officer has stated, this lack of accountability in Canada means there is little recourse for someone in Canada who experiences an incident with American border officers when going through pre-clearance. If there is no accountability, then Canadian laws are essentially meaningless.

Border politics

For these reasons, a Canadian reassessment of the pre-clearance program is all the more pressing since efforts are already underway to implement Canadian pre-clearance at land borders with the U.S.

In January 2025, before Trump’s inauguration, a two-year pilot project was announced at the Cannon Corners facility on the New York-Québec border. This would be somewhat different from the police powers granted to American border officials at Canadian airports, but Canada’s objectives have been similar to U.S. security directives — make admissibility determinations before someone enters Canada.

In other words, Canada is proceeding with pre-clearance initiatives that make it more difficult for people to make asylum claims when crossing the Canada-U.S. border.

Hoekstra has put the future of pre-clearance in question. This provides an excellent opportunity to reconsider whether the costs of the program outweigh the benefits in today’s political climate. That’s because no matter how convenient and efficient pre-clearance programs might be, they raise challenging questions about Canadian sovereignty and the rights of Canadian citizens.

The question should really be whether Canada wants to pursue America-style border politics rather than trying to build more humane border policies and practices.

Emily Gilbert, Professor, Canadian Studies and Geography & Planning, University of Toronto

This article is republished from The Conversation under a Creative Commons license.