Preclearance Act, 2016 (S.C. 2017, c. 27)

Other Powers and Justification

Marginal note:Frisk search for dangerous thing

• 13 (1) A preclearance officer may, in a preclearance area or preclearance perimeter, conduct a frisk search of a person if the officer has reasonable grounds to suspect that the person has on their person anything that would present a danger to human life or safety.

• Marginal note:Power to detain things

  (2) The preclearance officer may detain anything found during the search that would present a danger to human life or safety.

Marginal note:Detention — offence

• 14 (1) If a preclearance officer has reasonable grounds to believe that a person has committed an offence under an Act of Parliament, the officer may, in a preclearance area or preclearance perimeter,

  • (a) detain the person; and

  • (b) detain any goods they have on their person and any goods under their control, if the goods may be evidence of the offence.

• Marginal note:Delivery

  (2) The preclearance officer must, as soon as feasible, deliver the person and any detained goods into the custody of a police officer or border services officer.

Marginal note:Detention — public health

• 15 (1) If a preclearance officer has reasonable grounds to believe that a traveller bound for the United States poses a risk of significant harm to public health, the officer may, in a preclearance area or preclearance perimeter, detain the traveller.

• Marginal note:Delivery

  (2) The preclearance officer must, as soon as feasible, deliver the traveller into the custody of a police officer, a border services officer or a person designated as a quarantine officer under subsection 5(2) of the Quarantine Act.

Marginal note:Justification

• 16 (1) A preclearance officer is, if they act on reasonable grounds, 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.

• Marginal note:Limitation

  (2) However, a preclearance officer is not justified in using force that is intended or is likely to cause death or grievous bodily harm unless the officer has reasonable grounds to believe that it is necessary for self-preservation or the preservation of anyone under the officer’s protection from death or grievous bodily harm.

Preclearance Area

Access

Marginal note:Limited access

17 Only the following persons may enter a preclearance area:

• (a) travellers bound for the United States;

• (b) preclearance officers;

• (c) police officers and border services officers, for the purposes of exercising powers and performing duties and functions under this Part;

• (d) persons who are authorized by the Minister under section 45 or by regulation; and

• (e) subject to any regulations, persons who are authorized by the operator of a facility.

Obligations

Marginal note:Traveller’s obligations

• 18 (1) A traveller bound for the United States who is in a preclearance area must

  • (a) have in their possession identification that is issued by the federal government, a provincial or local government or a foreign government and that, except in the circumstances that may be prescribed by regulation, contains their photograph; and

  • (b) on entry, immediately report to a preclearance officer.

• Marginal note:Obligations subject to withdrawal

  (2) Unless they withdraw from preclearance under section 29, a traveller bound for the United States who is in a preclearance area must

  • (a) answer truthfully any question that is asked by a preclearance officer in accordance with this Act;

  • (b) as directed by a preclearance officer, present any goods in the traveller’s possession, open or unpack the goods, and unload a conveyance for which they are responsible or open any part of it;

  • (c) comply with any other direction given to the traveller in accordance with this Act by a preclearance officer, police officer or border services officer; and

  • (d) comply with any other requirement that is prescribed by regulation.

• Marginal note:Obligations of other persons

  (3) A person, other than a traveller bound for the United States, who is in a preclearance area must comply with any requirement that is prescribed by regulation.

Powers, Duties and Functions

Marginal note:Only in preclearance area

19 A preclearance officer may exercise the powers, and perform the duties and functions, set out in sections 20 to 26 only in a preclearance area.

Marginal note:General powers

• 20 (1) A preclearance officer may, for the purpose of conducting preclearance,

  • (a) question a traveller bound for the United States;

  • (b) collect information from a traveller bound for the United States;

  • (c) examine, search and detain goods bound for the United States, including by taking samples of the goods in reasonable amounts;

  • (d) direct a person to report to a preclearance officer, identify themselves, and state their reason for being in a preclearance area; and

  • (e) direct a traveller, or a person not authorized to be in a preclearance area, to leave a preclearance area.

• Marginal note:Biometric information

  (2) In the course of conducting preclearance, a preclearance officer may, for the purpose of verifying the identity of a traveller bound for the United States, collect biometric information from the traveller, other than from the traveller’s bodily substances. However, the officer is not permitted to collect biometric information unless notification that travellers may withdraw from preclearance is provided in the preclearance area, through signage or other means of communication.

Marginal note:Frisk search — concealed goods

21 A preclearance officer may, for the purpose of conducting preclearance, conduct a frisk search of a traveller bound for the United States if the officer has reasonable grounds to suspect that the traveller has on their person concealed goods.

Marginal note:Strip search

• 22 (1) A preclearance officer may, for the purpose of a strip search, detain a traveller bound for the United States if the officer has reasonable grounds to suspect that

  • (a) the traveller has on their person concealed goods or anything that would present a danger to human life or safety; and

  • (b) the search is necessary for the purpose of conducting preclearance.

• Marginal note:Request — border services officer

  (2) On detaining a traveller for the purpose of a strip search, the preclearance officer must immediately request that a border services officer conduct the search and advise of the grounds on which the traveller was detained.

• Marginal note:Strip search — border services officer

  (3) A border services officer may conduct the strip search if they have reasonable grounds to suspect that

  • (a) the traveller has on their person concealed goods or anything that would present a danger to human life or safety; and

  • (b) the strip search is necessary for the purpose of conducting preclearance.

• Marginal note:Strip search — preclearance officer

  (4) A preclearance officer may conduct the strip search, in a manner consistent with section 11, if they have reasonable grounds to suspect that the conditions under paragraphs (1)(a) and (b) are still met and if

  • (a) a border services officer declines to conduct it;

  • (b) the Canada Border Services Agency advises the preclearance officer that no border services officer is able to conduct the search within a reasonable time; or

  • (c) the Agency and the preclearance officer agree that a border services officer is to conduct the search within a specified period, but no border services officer arrives within that period.

• Marginal note:Observation by preclearance officer

  (5) A strip search conducted under subsection (3) may be observed by a preclearance officer who is of the same sex as the traveller or, if no such preclearance officer is available, by any suitable person of the same sex as the traveller that a preclearance officer may authorize.