The Agenda with Steve Paikin (Audio) - What Ontarians Need to Know Before Crossing the Border

Episode Date: April 16, 2025

High-profile cases of visitors to the United States being denied entry or detained have Canadians concerned about travelling south. How worried should travelers be, and what do you need to know about the risks and your rights? Kelley McClinchey: Instructor in the Department of Geography and Environmental Studies at Wilfrid Laurier University; Heather Segal, founding partner of Segal Immigration Law; and Brett Caraway, Associate Professor in the Institute of Communication, Culture, Information, and Technology at the University of Toronto Mississauga join Jeyan Jeganathan to discuss. See omnystudio.com/listener for privacy information.

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make a first-time donation and continue to discover your two-point TDO. High profile cases of visitors to the United States being denied entry or detained have Canadians concerned about traveling south. How worried should travelers be and what do we need to know about the risks and your rights? Let's find out from in Waterloo, Ontario, Kelly McClintchie, instructor in the Department of Geography and Environmental Studies at Wolford Laurier University and a board member with the Travel and Tour research association, Canada chapter. And here in our studios,

Heather Siegel founding partner of Siegel immigration law and Brett Caraway associate professor in the Institute of communication, culture, information and technology at the university of Toronto, Mississauga. Welcome to you both in studio and Kelly for joining us on the line. All right let's start Kelly. I'm going to come to you first. We've all seen the recent stories of foreign travelers being denied entry or detained. Is any of this actually new? It's a great question. I think what we have to realize is that we've had issues at or are borders for quite some time with respect to immigration concerns especially at the US-Mexico border and with certain travelers traveling across into Canada from the US.

What we're noticing right now is that we're hearing these stories more in mainstream media and we're noticing that some of these delays and detainments are occurring with travelers that frequently travel across the border, those that are traveling in particular for holidaying, vacationing with families. It seems to be happening more often and we notice that it's happening with travelers that are traveling very frequently, that have never had problems before, that have traveled with their visas and their ESTA's and so on, and with updated documentation. So what we're noticing is that this seems to be happening

more often and there is quite a lot of uncertainty as to whether or not people are going to be questioned at the border. And so it is something I think that as Canadians we're extremely concerned about and we've noticed that with respect to some of the data that we've been collecting in terms of cross-border travel. All right. I want to talk legal.

Tell me what's changed because legally not much, but there seems to be lots of, as Kelly has sort of described, lots of movement there. A hundred percent. Legally, not a lot has changed. That's absolutely true. But what people don't understand and what they don't realize is that there has been a paradigm shift in the United States.

And the sooner that people catch up and understand that, the sooner they're going to shift their perspective. sooner that people catch up and understand that, the sooner they're going to shift their perspective, we don't have a relationship with the United States is changing and as a result of that the adjudications are changing. My experience has been in the 30 years that I've been doing US immigration law is that the folks at the border, Customs and Border Protection, take their cues from the top. And so when the president is in a greater period of isolationism or xenophobia, then that translates down to the border folks who are more inclined to say, we have a problem, we don't like what's going on.

They always had the discretion. To Kelly's point, they've always had the authority to do it. It's just that now they're enacting, they're using that authority and the discretion in a way that they never have. OK. Brett, is it actually riskier? Or is it a fear related mostly to those headlines

that we've been talking about? If you look at the data that the US Customs and Border Protection Agency provides, at least for last year, the amount of searches, for example, of electronic devices is still pretty low. It's about 0.01%. Okay. So it's low. But if you blow that up into the actual numbers, that's about 40, I'm guessing 47,000 people who are crossing that border

that have been stopped for something more than basic questioning. I think it's probably a lot of increased sensitivity by media because there's a lot of discourse coming from the United States that is undermining the notion of Canadian sovereignty. I think I agree with what Heather is saying that there's also a change in culture in law enforcement that is a reflection of a change in priority from the executive branch on down. There's a lot of anecdotes that I haven't heard before, where they're looking for things like anti-Semitic communications, talking about looking at people's

social media posts. It's true, you've never had many rights at the border. If any at all, I mean, your only real right is to try and walk away and say, okay, I don't want to go into the United States, and you still might be detained for a while, but, I don't want to go into the United States. And you still might be detained for a while. But those laws haven't changed. But the way in which the laws are being enacted upon by law

enforcement, I think, has shifted. All right. The government in Canada recently updated its travel advisory for the US. It reads, US authorities strictly enforce entry requirements. Expect scrutiny at ports of entry, including of electronic devices, comply, and be forthcoming in all interactions with order authorities. If you're denied entry, you could be detained while awaiting deportation."

Of course, that from the Government of Canada. Heather, does this tell you the fact that the government decided to spell this out. So that's really interesting because I think what people need to understand about travel advisories is that there is a large political component to them. And so sometimes they are about, you know, don't go to certain areas of Ukraine because you might get blown up, which is a safety thing and concern for Canadians. But this is a statement to the Canadian public about what's going on in the United States. They threatened us with tariffs, they are concerned about letting certain kinds of people in, and Canada's value system is very different and doesn't like that. And so we made a

statement that actually doesn't say substantively a lot of difference of anything that's ever occurred in the past. You could always had to be careful about your electronics and you always had to obey the rules and be honest and forthright. These are not, this is not news. What's news is that the Canadian government made a choice to say we don't, we are concerned about what's going on in the United States. And in fact, Denmark and Finland and Germany have also made statements. And I believe there was another country today. So I think what we're seeing is a reaction of the world politically, to some degree,

concerned about what's happening in the United States as manifest in their immigration. Kelly, I want to get your take on that as well. I just wanted to come back to manifest in their immigration. I want to get your take on that as well. I wanted to come back to that question and comment about risk. I think it has something to do

with these travel warnings coming out in terms of the Canadian government and other governments issuing these warnings. It wasn't until maybe a week or two ago where we started to see these warnings come out, especially with regards to

Canada. The only warning on the Government of Canada website before that point was the one in regards to those staying longer than 30 days to make sure that you have issued the proper travel documentation, that they were going to be checking for that. So some of these warnings are coming about quite rapidly, but I want to just come back to that comment about risk. What we're noticing right now is that, yes, we've always had these warnings being issued by our government with regards to traveling in different destinations. What's a little bit surprising is that we're now seeing these warnings come from the U.S. or for the United States.

As Canadians, we've always been very privileged to be able to travel. Most of us have been very privileged to be able to travel very fluidly, very having ease of mobility across the border. And so to see these warnings come out kind of instigates that perception of fear, fear of travel to the United States. And we also have to be aware of the fact that when we see these warnings, it affects our image of that destination. So it gives us that sensation

that we should be concerned about traveling to that destination, that we're a little nervous and that we may therefore decide not to travel. So there's a difference in how we mitigate risk and how we mediate risk in terms of our travel decision making and our perceptions of risk can affect whether or not we decide to travel to that destination. And so we're seeing that definitely in the numbers, those statistics across the borders. So approximately 30% of Canadians are choosing not to travel across land borders into the US, for example, 30% reduction. We're seeing that about 13%. Fewer Canadians are traveling by air into the United States. So this is coming across in some actual data

that Canada and other organizations have been collecting right now. All right. I want to talk a little bit about sort of when we get to the board. We talked about phones a little bit. But I'm curious, do border guards need a reason to search your phone?

Ken, is there, you know, when we get there? I'm thinking similar to getting pulled over by a police officer, needing reasons for anything. But as you mentioned, there's not a lot of rights at that border. Do they need a reason to search your phone? I'll let Heather correct me if I'm wrong. Yeah, here we go. No, my understanding is that there's no need for probable cause in this.

There's no need for probable cause in this. There's no need for a warrant. It's at the discretion of the customs and border protection agent. That's why I say to people, when you show up at a land border in particular, if you're in Pearson, you can, Toronto Pearson Airport, that's a pre-screening area. It's a little bit harder for them to detain you, although they potentially could. Most likely if they found something they were concerned about, they would try and turn you over to, I'm assuming, the Toronto law enforcement.

But if you're at a land border, once you've crossed a river or border, you're on U.S. jurisdiction at that point. You're in U.S. jurisdiction. And you can refuse to answer questions. You can refuse to hand over your phone or passwords. But that might result in you not only being turned away, but detained, have your device taken away from you, and potentially be put into detainment yourself. Let's pick up on that because I am curious about the passwords.

That was one thing, you know, we've got these four pin passwords or six pin passwords. Can we give our phone over and just be like, here we are? Well, a couple of things I want to say. It's true. They have wide discretion and latitude to make decisions about whether or not they're going to investigate your phone. And there is a diminished right to privacy if there is any privacy at a border because you're subjecting yourself to enter an international area, another country, and they have to do their due diligence to make sure you're not bringing in anything illegal.

So if they do choose to search your phone, they do need some reason. Maybe they're concerned you're going to be working in the United States. The very first question you get when you cross the border is, what's the purpose of your visit? And they're looking to see if you're going to be working. The other thing they're looking is, how long are you staying? Which is, are you going to be living permanently in the United States? And so they need some reason to tell you that they have some concern

and their discretion in their discretion they might be worried that you are going to be doing one of these illegal things and they need to do a deeper dive and therefore they need to look at your electronics but to Brett's point it's very easy to come up with that reason and in your discretion you can take the electronics and ask to see them in order to to find out whether or not in fact your assumptions are true. In terms of the passwords if you want to enter the United States you must give them the password and that is true if you are at a land port of entry and you don't give them the password they they will take

your phone and they'll send it into a more advanced search where they can have other people figure out your passwords in the American government. Whereas that's true at the Canadian, at pre-flight inspection because you're on Canadian soil, you can always say, you know what, I'm not interested in traveling today. I want to withdraw my application and you can leave. Now, you will probably have difficulty getting back in the next time. However, you can take your device and that gets you out of the situation with the passwords. Okay. I want to follow up with Brett.

Talking about devices, I want to talk about burners because that has been coming up lately. I don't know if you heard, but the executives of CHEO, Children's Hospital of Eastern Ontario, recommended, you know, if you can avoid traveling to the US, Children's Hospital of Eastern Ontario, recommended, you know, if you can avoid traveling to the US, that's one thing, but possibly bringing a burner phone with you. Does a burner phone make sense? My concern would be that it would raise suspicion if you had a phone that was, completely wiped or just a flip phone or something like that that didn't have any of your text messages on it.

But I don't think it runs afoul of anything. I think it's kind of a situation where you would just have to make a decision about what you think the level of risk would be, what your interaction with a particular border agent would be. I think to Heather's point, most of the time that I've heard of people having their devices searched, this comes as part of an escalation based on some sort of initial interaction

that has raised concern. Is there a red flag that they're looking for? Is there something that's, you know, with the questions that they're looking for, is there something that they're looking for? Is there something that's, you know, with the questions that they're looking for, is there something that they're looking for? Yeah. Well, I mean, there are issues that fall underneath their mission, include everything from, you know,

human trafficking to child porn to, I think, I would assume that a lot of this has to do with concern that maybe people are violating the terms of their entry visa But again speaking to this shift that's happening in the politics here is that now I'm starting to hear things about well We have concerns that maybe you're engaging anti-semitic activity or things like that. Most of this is still anecdotal So I can't make any generalized comment about that But there is concern that maybe the purview is,

there's a little bit of mission creep going on right now. I just wanted to add a couple of things. Number one, there's been a statement by the US government that says there's only two genders, and it's the one you had at birth. So people who are trans, I'm getting tons of calls from trans people. And they can expect that they might have problems

if their passport gender does not reflect their sex at birth. That could be a problem for them. There's about 43 countries that are on the precipice of being on a new ban list. So if you are a Canadian potentially born in Iran, you might have a problem crossing the border and they might want to look at your electronics even if you don't have an indication, there's no indication that you're going to be working in the United States. So these are groups of people that I'd be concerned about and and with respect to the burner phone I actually I actually am of the view that American

Immigration Lawyers Association and the Canadian Bar Association have said that it's a good idea to not travel with anything that's protected. Now these are Lawyers Association but if you have protected private information, I was making a joke earlier that you wouldn't travel with your medical records or your bank statements, which are all on your phone, so why would you take anything else? And people can, I bet you there will be a trend now

to have people take travel phones, and it will be their travel phone. And so we don't call it a burner, and therefore there will be no expectation that anything else is there. And if there's suspicions, there's going to be suspicions. People make choices about what they're willing to share with other people at an international border and I don't put in my luggage pieces of paper that I think I don't want anyone else to see and similarly I wouldn't carry anything on my technology that I don't want anyone else to see. And similarly, I wouldn't carry anything on my technology that I don't want anyone else to see. And I think that's acceptable.

OK. Kelly, I am curious. Are there different risks associated with different forms of travel? If we're traveling by land versus air. Yeah, you make a really good point. And it was alluded to earlier with Brett in terms of being in those customs clearance

areas in airports with regards to land borders. As I said, crossing land borders, there has been situations where people have been questioned in regards to their motivations for travel. Certainly there are cases where we know as certain Canadians

may be asked or even interrogated more at these borders with respect to some of their motivations for travel across land borders. And some of those are what we're noticing that more have been more stories are coming out where people have been interrogated or questioned at land borders as opposed to detained at airports in these pre-customs areas in terms of Canadians' experience. There are stories coming out from those travelling Europeans. So the example of the German traveller, the person from the UK, the French academic who was trying to get into the United States for a conference, they were stopped in terms of

air travel. In the past, there's probably been more situations of these occurrences happening at land borders, but I think what we're noticing is that some of these stories are happening more frequently both at air crossings or in these customs clearance areas and at land borders. I also wanted to bring up that issue that was discussed earlier in regards to like the burner phones and the checking of information. There are stories coming out from travelers coming into the United States, especially internationally as well, in terms of being checked and asked some of those detailed questions

about bank statements in terms of their, some of their employment history, in terms of some of these details that is, you know, whether it's available on their phone or whether they're being asked for some further in-depth questioning because of some of their documentation. So if they're travelling with regards to an ESTA or a work visa, it might be expected now that some of those deeper questions are going to be asked based on those motivations for travel. So if folks are planning on traveling into the US with some of these other types of visas

or visa waiver documentation, that they might be further questioned and maybe being asked to check some of these further, the further paperwork behind some of their stories. On an earlier point that you made, Kelly, I am curious, should we just be flying? Is that the easier way in? It seems like a lot of, I mean, anecdotally,

we're hearing these stories, but is it easier just to fly in? I wouldn't necessarily say it's easier. I think hearing many of these stories, especially from international travelers, coming in the US, and as Canadians, as I've said, it's very concerning. And there's a lot of uncertainty with Canadians traveling now into the US based on some of the stories that we've heard.

That perhaps we're used to having it be a very seamless process, clearing customs at a Canadian airport before entering the United States. What a very simple process that used to be. But, and perhaps there might be a little bit more of that ease with which we could travel through airports because of our role with the U.S. and Canada in that travel sphere. But there are stories of folks who travel frequently across land borders, those living in, you know, Detroit, Windsor, or in the Vancouver region who've traveled frequently across land borders and are

now noticing that they're being asked specific questions they never been asked before that they're being delayed at the border and so I don't necessarily have a specific answer for that but we are seeing quite a lot of reduction in land border crossings as as I said, 30%, versus 13% reduction through air travel. So I think it's up to the travellers' discretion how they wish to travel if they're making that choice to travel to the United States now. All right, Brett, I want to come to you. Heather had mentioned getting calls from trans people

who were concerned about going over to the border. But I want to talk about another specific group. You're in the classroom a lot. And so they're students. We're talking about visas and paperwork. What are you hearing from your students about potentially crossing over to the border and their fears? So I spoke with a grad student of mine several days ago,

and he is Syrian-born, Canadian, and concerned about the ability to cross that border safely to go do conferences or whatever you might need to do as a grad student in the United States. I'm also hearing from faculty who have concerns about crossing the border. A lot of the discourse tends to be about maybe people who have immigrated to Canada from Muslim majority countries and a fear of what might happen, a fear of being detained as they try and gain access to the United States across a land border in particular. The university itself has sort of just reiterated what we've all known has been the, well, maybe

not all of us, but those of us who pay attention, have known the legal statuses when you're crossing the border. And then the university has also partnered with an organization, I think it's called SOS International, where you can download an app and log in through their website portal to gain essentially support in emergency situations and logistics, but it's sort of a developing discourse at this point. All right. Heather, I am curious. If we're denied at the border, what's our recourse?

What can we do? Well, it depends on why you're denied at the border. So I mean, if they think you have a criminal record and you don't, you have to prove to them that in fact you don't. It's hard to prove a negative, but you can sometimes do it. And you should, so what I think is really important to back up and then answer this in conjunction

is the reason people are getting asked the questions at the borders is because immigration is enforcing the rules that already exist. And previously there was an assumption that people are always telling the truth. And now there's this attitude of highly suspicious of everybody coming in, which mirrors the government's, the president's position, the administration's position. And so my advice is never hand your phone over, print your boarding pass when you're doing pre-flight inspection,

bring your documents, show the hotel you're staying in, bring a letter from your employer if you need to to show that you're employed in Canada, that you're not going to be working in the United States, and don't bring any papers that you don't want them to see. The reasons they ask for financial background or evidence of having some kind of ties to Canada is to prove you're not going to stay in the United States permanently. So one of the biggest reasons people do get denied, there's two big reasons. One is because they think somebody's going to be working in the United States and they say go get yourself a work permit. Or they say we think you're living in the United States and prove to us that you're

not. So you can sometimes be invited to go back to the United States with or try and reapply to get in with evidence of whatever the concerns were. So that's one probably the most usual way that things go but I think it's really important for people to understand why they're being denied because sometimes they walk away and they don't understand and you can say to an immigration officer hey I just want to understand why you're not allowing me in and is there anything I can do to help the situation next time?

And they'll tell you and maybe it's accurate and maybe it's inaccurate, but at least you're coming with a piece of information and a direction to go. There is an admissibility review officer at Pearson, for example, and all the ports of entry across the world have a review officer, and they can look at whether or not everything was done properly. The way Customs and Border Protection functions is very hierarchical, and there's deference

to the level above. So there is always someone you can talk to. Now whether that person is going to be amenable or facilitative, it's hard to know. But in terms of the question, what can you do, there are things you can do. Now this is easy if you walk away at an airport. If you're at a land port of entry and you're detained, the information is that you cannot leave. You're stuck till they let you out and it's been very hard.

I mean they've been moving, they moved that woman who the Canadian woman to Louisiana because that's the jurisdiction that is the toughest on immigration. But that's old news too. I mean when they arrest people and they put them into deportation or put them into questioning or detain them they often send them to different parts of the United States that are beneficial. So that's not news. I am curious and I don't want to put you on the spot here but I anecdotally have heard you know people being asked by border agents their't want to put you on the spot here, but I anecdotally have heard, you know, people being asked by border agents, their thoughts, right? Their opinions on what's happening.

What do they think about being the 51st state? What are their thoughts on Donald Trump? What's your advice to sort of answering that question and making sure that they can go on and have their vacation or their trip or wherever they're going? Good question. What do you think? I mean, you know, my thoughts are not don't belong to anybody. They're my thoughts and I don't need to share them. This is not confession.

So it is not a legal requirement to answer that. And maybe I don't have any thoughts. So the question assumes I have thoughts about this subject matter. And I don't think that we can answer questions to convey to immigration that we are legal and reliable and are going to be upstanding and we are not going to cause trouble in the United States.

And I think those are the issues they're looking for. And even if some of their value systems right now don't align with ours as Canadians we can still be honest and at the end of the day they get the discretion with respect to whether or not they're gonna let us in so you can only be honest and forthright and answer the questions you're asked and don't start offering you know and last week I was at my grandmother's nobody cares nobody needs to to know, it's just the facts. All right, we have less than a minute left

and I have a question for each of you. Kelly, I am curious, do you think that when Trump's term is over, tourism and travel, you talked about the numbers being down, will they return to normal or even in his term? That's a really great question. If we look back in the pandemic era, we all, when the borders were forcibly closed and people had an intense fear of travel

due to COVID-19, we all thought that what's going to happen to travel? Tourism was at a standstill and many economies suffered. There was an intense concern about travel at that time and we wondered, will it bounce back? What we noticed was it started out with a at that time and we wondered will it bounce back and what

we noticed was it started out with a small trickle and as we noticed that there was of course a perceived fear but as soon as we realized that our objective fear was kind of we were sort of diffusing that a little bit, travel bounced back and although in some cases it's not in the pre-pandemic levels that it was we're noticing that some destinations are now experiencing over-tourism. And so I do believe that travel and tourism, people have a desire to travel, whether it is for business or conferences or certainly for vacationing and holidaying, that we do have this intense desire to move and to go places. And I do see that perhaps as we notice that some of this perceived fear

is perhaps a little bit more extensive or more medium risk as or perhaps less risk than it than it is that maybe will still travel. In that sense I do see that as we notice that some of that risk is less that we'll start seeing travel open up and I certainly do believe that with what's happening in terms of our geopolitical issues with the US right now, and it might be a slow start, but I think once that term pieces perhaps, that we will see a return to travel like we have before.

All right, Brett, you get the last word here. I understand that you might be traveling to the States soon. I'm just curious, what kinds of precautions will you be taking? Well, I'm a dual citizen who is stubborn in driving all the way from Toronto down to Texas multiple times a year. So I get a very interesting swath of the US on my drive down. I think I'll be taking a lot of the precautions

that I would be if I wasn't a dual citizen, actually. I think I will, I crossed with a US passport. But irrespective of that, I think I will lessen the amount of data I have on my phone. I think I will go through my texts and see, is there anything that I think is problematic there? I'll go through my apps and ask myself, do I need all of these apps stored on the phone?

I'll look at my photos and decide, is there anything in here that I might not want someone to see? And just sort of think, what is my tolerance photos and decide is there anything in here that I might not want someone to see and just sort of think what is my tolerance in terms of having my privacy impinged upon by the U.S. jurisdiction. All right. We're going to leave it there.

Heather, Brett, Kelly, thank you so much for joining us on the program. Really informative stuff. Thank you so much. Thank you. My pleasure.