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

Marginal note:Powers — suspected offence

• 32 (1) If a preclearance officer has reasonable grounds to suspect that a traveller who is withdrawing from preclearance has committed an offence under an Act of Parliament, the officer may, for the purpose of maintaining the security of or control over the border, exercise any of the following powers in a preclearance area or preclearance perimeter:

  • (a) direct the traveller to identify themselves and to produce identification that contains their photograph and that is issued by the federal government, a provincial or local government or a foreign government;

  • (b) take and retain a photograph of the traveller, if the traveller has not produced identification that contains their photograph and allows their identity to be verified;

  • (c) question the traveller;

  • (d) collect information from the traveller;

  • (e) examine, search and detain goods in the traveller’s possession or control, including by taking samples of the goods in reasonable amounts;

  • (f) conduct a frisk search of the traveller, if the officer also has reasonable grounds to suspect that the traveller has on their person concealed goods; and

  • (g) detain the traveller for the purpose of a strip search, if the officer also has reasonable grounds to suspect that

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

    • (ii) the search is necessary for the purpose of maintaining the security of or control over the border.

• Marginal note:Strip search

  (2) A strip search referred to in paragraph (1)(g) may be conducted only in accordance with subsections 22(2) to (5) and sections 25 and 26, with the reference to “paragraphs (1)(a) and (b)” in subsection 22(4) to be read as a reference to “subparagraphs 32(1)(g)(i) and (ii)”.

• Marginal note:Detention of traveller

  (3) The exercise of any of the powers set out in subsection (1) with respect to a traveller constitutes a detention of the traveller.

Marginal note:Limitation re information

• 33 (1) No person is permitted to disclose or use information obtained from a traveller after their withdrawal from preclearance except for the purpose of maintaining the security of or control over the border between Canada and the United States or as otherwise authorized by law.

• Marginal note:Limitation re biometric information

  (2) No person is permitted to

  • (a) collect any biometric information in respect of a traveller after the traveller has indicated that they are withdrawing from preclearance;

  • (b) use a photograph of the traveller obtained under paragraph 31(2)(d) or 32(1)(b) to produce biometric information; or

  • (c) disclose such a photograph for the purpose of producing biometric information.

Seizure and Forfeiture

Marginal note:Preclearance officer

• 34 (1) Subject to subsection (2), in a preclearance area or preclearance perimeter, a preclearance officer may seize, including as forfeit, or accept if they are abandoned, goods that are detained by a preclearance officer under paragraph 20(1)(c) or 28(e) to the extent, and in a manner, that is consistent with the laws of the United States on importation of goods, immigration, agriculture and public health and safety.

• Marginal note:Transfer to Canadian officer

  (2) If the Minister has provided notice that the importation into Canada, exportation from Canada, possession or handling of goods of the type that are detained contravenes Canadian law or if the preclearance officer suspects that the detained goods constitute evidence of an offence under Canadian law, the preclearance officer must transfer the detained goods to a person who is prescribed by regulation, if the goods are prescribed by regulation, or, if the goods are not so prescribed, to a police officer or border services officer.

• Marginal note:Return of goods to preclearance officer

  (3) If a person or officer to whom goods are transferred under subsection (2) subsequently returns the goods to a preclearance officer, the preclearance officer may seize them, including as forfeit, or accept them if they have been abandoned.

• Marginal note:Return or disposal of goods

  (4) Subject to any regulations, a preclearance officer may, to the extent and in a manner that is consistent with the laws referred to in subsection (1), return any goods that they have seized or dispose of any goods that they have seized or accepted.

Police Officers and Border Services Officers

Marginal note:Request for assistance — police officer

• 35 (1) At the request of a preclearance officer, a police officer may, for the purpose of maintaining public peace,

  • (a) remove from a preclearance area a traveller, or a person not authorized to be in the preclearance area, who refuses to comply with a direction given under paragraph 20(1)(e);

  • (b) bring to a preclearance area a traveller who refuses to comply with a direction given under paragraph 28(c); and

  • (c) assist the preclearance officer in the exercise of their powers, and performance of their duties and functions, under this Part.

• Marginal note:Border services officer

  (2) At the request of a preclearance officer, a border services officer may assist the preclearance officer in conducting a frisk search under section 13.

• Marginal note:Frisk search

  (3) A border services officer or police officer may conduct a frisk search of a traveller if they have reasonable grounds to suspect that the traveller has anything on their person that would present a danger to human life or safety in the following circumstances:

  • (a) in the case of a border services officer, before conducting a strip search under subsection 22(3) or a monitored bowel movement under subsection 23(3);

  • (b) in the case of either officer, before transferring the traveller to a medical facility under subsection 24(3).

Marginal note:Powers and obligations — peace officer

• 36 (1) A border services officer who is designated under subsection 163.4(1) of the Customs Act and who is exercising powers or performing duties or functions under this Part has, in relation to an offence under any Act of Parliament, the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code, and subsections 495(3) and 497(3) of that Act apply to the officer as if he or she were a peace officer.

• Marginal note:Power to detain

  (2) The officer who arrests a person in the exercise of the powers conferred under subsection (1) may detain the person until the person can be delivered into the custody of a police officer.

Offences and Punishment

Marginal note:False or deceptive statements

• 37 (1) Every person who makes an oral or written statement to a preclearance officer, police officer or border services officer, with respect to the preclearance of a person or any goods, that the person knows to be false or deceptive or to contain information that the person knows to be false or deceptive is guilty of an offence punishable on summary conviction and is liable to a maximum fine of $5,000.

• Marginal note:No imprisonment

  (2) Despite subsection 787(2) of the Criminal Code, a term of imprisonment is not to be imposed for default of payment of a fine imposed under subsection (1).

Marginal note:Obstruction of officer

38 Every person who resists or wilfully obstructs a preclearance officer, police officer or border services officer in the exercise of the officer’s powers or the performance of their duties and functions under this Part, or a person lawfully acting in aid of such an officer,

• (a) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or

• (b) is guilty of an offence punishable on summary conviction.

Civil Liability and Immunity

Marginal note:Claim against the United States

• 39 (1) An action or other proceeding of a civil nature, in which the United States is not immune under the State Immunity Act from the jurisdiction of a court in Canada, may be brought against the United States in respect of anything that is, or is purported to be, done or omitted by a preclearance officer in the exercise of their powers or the performance of their duties and functions under this Part.

• Marginal note:Preclearance officer’s immunity

  (2) No action or other proceeding of a civil nature may be brought against a preclearance officer in respect of anything that is done or omitted in the exercise of their powers or the performance of their duties and functions under this Part.

• Marginal note:For greater certainty

  (3) For greater certainty, a preclearance officer is not a servant of the Crown for the purposes of the Crown Liability and Proceedings Act.