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

Assented to 2017-12-12

Jurisdiction — Offence by Canadian Officer

Marginal note:Primary criminal jurisdiction
  •  (1) The Attorney General of Canada is responsible for advising the Minister with respect to the exercise or waiver of primary criminal jurisdiction under Article X of the Agreement in relation to an act or omission committed in the United States by a border services officer or other public officer in the exercise of their powers, and performance of their duties and functions, under this Part.

  • Marginal note:Additional factors

    (2) The Attorney General of Canada may, in providing advice with respect to the waiver of primary criminal jurisdiction under paragraphs 15 and 16 of Article X of the Agreement, consider the following factors in addition to those set out in that paragraph 16:

    • (a) the severity of the sentence a border services officer or other public officer accused of an offence is likely, if convicted, to receive in Canada as compared to the United States;

    • (b) the impact with respect to evidence if proceedings are held in Canada as compared to the United States;

    • (c) the impact on witnesses if proceedings are held in Canada as compared to the United States;

    • (d) the jurisdiction that has the greater interest in prosecuting the border services officer or other public officer for the act or omission in question; and

    • (e) any other factor that the Attorney General considers relevant.

Marginal note:Exclusive authority

 The Attorney General of Canada has exclusive authority to commence and conduct a prosecution or other criminal proceedings with respect to an act or omission committed in the United States by a border services officer or other public officer in the exercise of their powers, and performance of their duties and functions, under this Part, and for that purpose the Attorney General of Canada may exercise any of the powers, or perform any of the duties and functions, assigned under the Criminal Code to an Attorney General.

Part 3R.S., c. C-46Related Amendments to the Criminal Code

 The Criminal Code is amended by adding the following after section 117.07:

Marginal note:Preclearance officers

117.071 Despite any other provision of this Act, but subject to section 117.1, no preclearance officer, as defined in section 5 of the Preclearance Act, 2016, is guilty of an offence under this Act or the Firearms Act by reason only that the preclearance officer

  • (a) possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition in the course of or for the purpose of their duties or employment;

  • (b) transfers or offers to transfer a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition in the course of their duties or employment;

  • (c) exports or imports a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition in the course of their duties or employment; or

  • (d) fails to report the loss, theft or finding of any firearm, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance that occurs in the course of their duties or employment or the destruction of any such thing in the course of their duties or employment.

 The Act is amended by adding the following after section 579:

Marginal note:Instruction to stay
  • 579.001 (1) The Attorney General or counsel instructed by him or her for that purpose shall, at any time after proceedings in relation to an act or omission of a preclearance officer, as defined in section 5 of the Preclearance Act, 2016, are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by direction of the Attorney General if the Government of the United States has provided notice of the exercise of primary criminal jurisdiction under paragraph 14 of Article X of the Agreement.

  • Marginal note:Stay

    (2) The clerk or other officer of the court shall make the entry immediately after being so directed, and on the entry being made the proceedings are stayed and any recognizance relating to the proceedings is vacated.

  • Marginal note:Recommencement

    (3) The proceedings may be recommenced without laying a new information or preferring a new indictment, if the Attorney General or counsel instructed by him or her gives notice to the clerk or other officer of the court that

    • (a) the Government of the United States has provided notice of waiver under paragraph 15 of Article X of the Agreement; or

    • (b) the Government of the United States has declined, or is unable, to prosecute the accused and the accused has returned to Canada.

  • Marginal note:Proceedings deemed never commenced

    (4) However, if the Attorney General or counsel does not give notice under subsection (3) on or before the first anniversary of the day on which the stay of proceedings was entered, the proceedings are deemed never to have been commenced.

  • Marginal note:Definition of Agreement

    (5) In this section, Agreement means the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Washington on March 16, 2015.

Part 3.1Independent Review

Marginal note:Review and report

 Five years after this Act comes into force, the Minister must cause to be conducted an independent review of this Act, and its administration and operation, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.

Part 4Consequential Amendment, Repeal and Coming into Force

R.S., c. 1 (2nd Supp.)Consequential Amendment to the Customs Act

 Subsection 107(5) of the Customs Act is amended by adding the following after paragraph (l.2):

  • (l.3) a United States federal, state, tribal or local law enforcement agent, solely for the purpose of communicating the circumstances of detention and delivery referred to in subsection 52(2) of the Preclearance Act, 2016;

Repeal

Marginal note:Repeal

 The Preclearance Act, chapter 20 of the Statutes of Canada, 1999, is repealed.

Coming into Force

Marginal note:Order in council

 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

 
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