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

Short Title

Marginal note:Short title

1 This Act may be cited as the Preclearance Act, 2016.

Interpretation and Application

Marginal note:Definitions

• 2 (1) The following definitions apply in this Act.

  Agreement

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

  goods

  goods includes

  • (a) currency and monetary instruments; and

  • (b) for greater certainty, animals and plants and their products, conveyances and any document in any form. (biens)

  Minister

  Minister means, in relation to section 6, 7 or 8, subsection 11(2) or 34(2), section 41 or 45 or subsection 59(1), a Minister designated under subsection 4(2) for the purpose of that provision or, in the absence of such a designation, the Minister who is responsible for this Act. (ministre)

• Marginal note:For greater certainty

  (2) For greater certainty, travellers or goods en route towards the United States or Canada on their way to another country are, for the purposes of this Act, bound for the United States or Canada, as the case may be.

• Marginal note:Definition of Act of Parliament

  (3) For greater certainty, in this Act Act of Parliament means an Act of the Parliament of Canada.

Marginal note:Binding on Her Majesty

3 This Act is binding on Her Majesty in right of Canada or a province.

Designation of Ministers

Marginal note:Act

• 4 (1) The Governor in Council may, by order, designate a federal Minister as the Minister responsible for this Act.

• Marginal note:Provision

  (2) The Governor in Council may, by order, designate one or more federal Ministers as the Minister or Ministers for the purpose of section 6, 7 or 8, subsection 11(2) or 34(2), section 41 or 45 or subsection 59(1).

• Marginal note:More than one Minister

  (3) If more than one Minister is designated under subsection (2) for the purpose of a provision, the Governor in Council must, by order, specify the circumstances in which each Minister is to exercise the powers and perform the duties or functions set out in the provision.

PART 1Preclearance by the United States in Canada

Definitions

Marginal note:Definitions

5 The following definitions apply in this Part.

biometric information

biometric information means information that is derived from a person’s measurable physical characteristics. (renseignements biométriques)

border services officer

border services officer means a person who is 

• (a) employed by the Canada Border Services Agency in the administration or enforcement of the Customs Act, the Customs Tariff or the Special Import Measures Act;

• (b) designated under subsection 9(2) of the Canada Border Services Agency Act; or

• (c) designated or authorized under section 6 of the Immigration and Refugee Protection Act. (agent des services frontaliers)

facility

facility means, except in the case of a medical facility, a facility in a preclearance area or preclearance perimeter or a facility in which there is a preclearance area or preclearance perimeter. (installation)

frisk search

frisk search means a search by hand or technical means of a person’s clothed body. (fouille par palpation)

preclearance

preclearance means the exercise of powers and the performance of duties and functions under the laws of the United States by a preclearance officer under section 10. (précontrôle)

preclearance officer

preclearance officer means a person authorized by the Government of the United States to conduct preclearance in Canada. (contrôleur)

strip search

strip search means a visual inspection of a person’s unclothed or partially clothed body. (fouille à nu)

Designation of Preclearance Areas and Preclearance Perimeters

Marginal note:Preclearance area

• 6 (1) The Minister may designate an area in a location set out in the schedule as a preclearance area. The Minister may provide that the designated area is a preclearance area only during specified periods and in specified circumstances.

• Marginal note:Other preclearance areas

  (2) If the Minister has designated a preclearance area under subsection (1) and a conveyance — that is intended to be used to transport travellers or goods that are undergoing preclearance — is stationed in preparation for departure to the United States such that all or part of the conveyance is outside that preclearance area, the following are also preclearance areas during the period in which the conveyance is so stationed:

  • (a) the conveyance;

  • (b) a corridor between the preclearance area designated under subsection (1) and the conveyance; and

  • (c) any other conveyance that is used to transport travellers or goods between the preclearance area designated under subsection (1) and the conveyance.

Marginal note:Preclearance perimeter

7 The Minister may designate as a preclearance perimeter an area that is adjacent to where a conveyance referred to in paragraph 6(2)(a) will be stationed in preparation for departure to the United States, but the designated area is only a preclearance perimeter during the period in which such a conveyance is so stationed.

Marginal note:Modify or cancel

8 The Minister may modify or cancel anything that he or she has done under subsection 6(1) or section 7.

Marginal note:Canadian law

9 For greater certainty, Canadian law applies, and may be administered and enforced, in preclearance areas and preclearance perimeters.

Powers, Duties and Functions in Preclearance Area and Preclearance Perimeter

Preclearance

Marginal note:Preclearance powers, duties and functions

• 10 (1) Subject to subsection (2), a preclearance officer may, in a preclearance area or preclearance perimeter, exercise the powers and perform the duties and functions conferred on them under the laws of the United States on importation of goods, immigration, agriculture and public health and safety, in order to determine whether a traveller or goods bound for the United States is or are admissible into that country and, if applicable, to permit them to enter that country.

• Marginal note:Limitation

  (2) A preclearance officer is not permitted to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest that are conferred under the laws of the United States.

Marginal note:Compliance with Canadian law

• 11 (1) A preclearance officer must exercise their powers and perform their duties and functions under this Act in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.

• Marginal note:Training — preclearance officer

  (2) The Minister must, in accordance with paragraph 2 of Article IX of the Agreement, provide every preclearance officer with training on the Canadian law that applies to the exercise of the preclearance officer’s powers and the performance of their duties and functions under this Act.

Marginal note:Duties, taxes and fees

• 12 (1) For greater certainty, in the course of preclearing travellers and goods, a preclearance officer may collect duties, taxes and fees in accordance with the laws of the United States on importation of goods, immigration, agriculture and public health and safety.

• Marginal note:Penalties or sanctions

  (2) For greater certainty, in the course of preclearing travellers and goods, a preclearance officer may impose administrative monetary penalties or other civil sanctions in accordance with those laws.

• Marginal note:Exception — Canadian prosecution

  (3) However, no such penalty or other sanction is to be imposed if a prosecution for an offence under an Act of Parliament is instituted in Canada with respect to the act or omission that would give rise to it. If such a prosecution is instituted after a penalty or sanction has been imposed, the penalty or sanction is a nullity and any payment in respect of it must be reimbursed.

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.

Marginal note:Monitored bowel movement

• 23 (1) A preclearance officer may, for the purpose of a monitored bowel movement, detain a traveller bound for the United States if the officer has reasonable grounds to suspect that

  • (a) the traveller is concealing goods inside their body;

  • (b) the monitoring would permit the finding or retrieval of the goods; and

  • (c) the monitoring is necessary for the purpose of conducting preclearance.

• Marginal note:Delivery to border services officer

  (2) On detaining a traveller for the purpose of a monitored bowel movement, the preclearance officer must deliver the traveller into the custody of a border services officer as soon as feasible and advise that officer of the grounds on which the traveller was detained.

• Marginal note:Monitoring by border services officer

  (3) A border services officer may conduct a monitored bowel movement if they have reasonable grounds to suspect that

  • (a) the traveller is concealing goods inside their body;

  • (b) the monitoring would permit the finding or retrieval of the goods; and

  • (c) the monitoring is necessary for the purpose of conducting preclearance.

Marginal note:X-ray or body cavity search

• 24 (1) A preclearance officer or border services officer may request that a traveller bound for the United States undergo an x-ray search or a body cavity search if the officer has reasonable grounds to suspect that

  • (a) the traveller is concealing goods inside their body;

  • (b) the x-ray search would permit the finding or identification of the goods or the body cavity search would permit the finding or retrieval of the goods; and

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

• Marginal note:Traveller’s consent

  (2) Despite paragraph 18(2)(c), no x-ray search or body cavity search may be conducted unless the traveller consents.

• Marginal note:Transfer to medical facility

  (3) A police officer or border services officer may transfer the traveller to a medical facility for the search. A preclearance officer is not permitted to do so.

• Marginal note:Person conducting search

  (4) Only an x-ray technician may, with the consent of a physician, conduct an x-ray search, and only a physician may conduct a body cavity search.

• Marginal note:Danger to traveller’s health or safety

  (5) Regardless of whether the traveller consents to an x-ray search or body cavity search,

  • (a) if a preclearance officer has reasonable grounds to suspect that there is a clear and substantial danger to the traveller’s health or safety, the officer may deliver the traveller to a police officer or border services officer so that the police officer or border services officer may transfer the traveller to a medical facility; and

  • (b) if a border services officer has reasonable grounds to suspect that there is such a danger, the officer may transfer the traveller to a medical facility.

Marginal note:Right to be taken before senior officer

• 25 (1) A preclearance officer or border services officer must, before conducting a search of a traveller under any of sections 21 to 23, inform the traveller of their right to be taken before the officer’s senior officer and, if the traveller requests it, must take the traveller before the senior officer.

• Marginal note:Senior officer’s agreement

  (2) If the traveller is brought before a senior officer, the search is permitted only if that officer agrees that the preclearance officer or border services officer, as the case may be, is authorized under the applicable section to conduct the search.

Marginal note:Search by officer of same sex

• 26 (1) Neither a preclearance officer nor a border services officer is permitted to conduct a search under any of sections 21 to 23 of a person of the opposite sex. If no such officer of the same sex as the person is available, the officer may authorize any suitable person of the same sex to conduct the search.

• Marginal note:Appointed observer

  (2) A preclearance officer or border services officer may authorize a person of the same sex as the traveller being searched to observe a search under any of sections 21 to 23 that is conducted by the officer.

Marginal note:Situation referred to in certain provisions

26.1 Regardless of any applicable recourse, a traveller may, in a prescribed manner, inform the Canadian senior officials of the Preclearance Consultative Group established under the Agreement of any situation referred to in sections 22, 23 and 24, subsection 31(2) and section 32 of this Act.

Preclearance Perimeter

Marginal note:Traveller’s obligations

• 27 (1) A traveller bound for the United States who is in a preclearance perimeter must comply with

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

  • (b) any requirement that is prescribed by regulation.

• Marginal note:Obligations of other persons

  (2) A person, other than a traveller bound for the United States, who is in a preclearance perimeter must

  • (a) as directed by a preclearance officer, identify themselves and state their reason for being in the preclearance perimeter; and

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

Marginal note:Powers of preclearance officer

28 In a preclearance perimeter, a preclearance officer may, for the purpose of conducting preclearance or of maintaining the security of or control over the border between Canada and the United States,

• (a) direct that a person identify themselves and state their reason for being in the preclearance perimeter;

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

• (c) direct a traveller bound for the United States to go to a preclearance area;

• (d) examine the exterior of a conveyance referred to in paragraph 6(2)(a);

• (e) examine, search and detain goods — including by taking samples of the goods in reasonable amounts — that are bound for the United States and that are to be loaded onto such a conveyance; and

• (f) return goods bound for the United States to a preclearance area, or direct a person with control of the goods to do so.

Withdrawal

Marginal note:Traveller may withdraw from preclearance

29 Unless they are detained under this Act, every traveller bound for the United States may withdraw from preclearance and, subject to section 30, may leave a preclearance area or preclearance perimeter without departing for the United States.

Marginal note:Traveller’s obligations

30 A traveller who withdraws from preclearance must

• (a) answer truthfully any question asked by a preclearance officer under paragraph 31(2)(b) for the purpose of identifying the traveller or of determining their reason for withdrawing; and

• (b) comply with any other direction given by a preclearance officer in accordance with subsection 31(2).

Marginal note:No preclearance on withdrawal

• 31 (1) A preclearance officer is, after a traveller has indicated that he or she is withdrawing from preclearance, permitted to exercise only the powers, and perform only the duties and functions, under this section and sections 13 to 15 and 32 with respect to the traveller.

• Marginal note:Powers on withdrawal

  (2) A preclearance officer may, for the purpose of maintaining the security of or control over the border between Canada and the United States, exercise the following powers in a preclearance area or preclearance perimeter with respect to a traveller who is withdrawing from preclearance:

  • (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) question the traveller for the purposes of identifying them or determining their reason for withdrawing;

  • (c) record and retain information obtained from the traveller under paragraph (a) or (b), including by making a copy of the traveller’s identification;

  • (d) 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;

  • (e) visually examine a conveyance used by the traveller and, if the conveyance transports goods on a commercial basis, open its cargo compartments to visually examine the contents;

  • (f) examine, using means or devices that are minimally intrusive, a conveyance used by the traveller, without opening or entering it, if the preclearance officer has reasonable grounds to suspect that the traveller could compromise the security of or control over the border.

• Marginal note:Limitation

  (3) A preclearance officer may exercise the powers set out in subsection (2) only to the extent that doing so would not unreasonably delay the traveller’s withdrawal.

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.

Marginal note:Decision not reviewable

40 No decision of a preclearance officer to refuse to conduct preclearance, or to refuse the admission of persons or goods into the United States in accordance with the laws of the United States, is subject to judicial review in Canada.

Marginal note:Reciprocity

41 The Governor in Council may, on the recommendation of the Minister, by order, restrict any immunity or privileges under section 39 or 40 with respect to an action or other proceeding of a civil nature if, in the opinion of the Governor in Council, the immunity or privileges exceed those accorded to Canada by the United States.

Limitation on Requests for Extradition or Provisional Arrest

Marginal note:Request to third-party state

42 No request under section 78 of the Extradition Act for the extradition or provisional arrest of a current or former preclearance officer may, without the consent of the Government of the United States, be made to a State or entity other than the United States with respect to an act or omission committed by the officer, if the Government of the United States has provided notice under paragraph 14 of Article X of the Agreement that it is exercising primary criminal jurisdiction over the act or omission.

Regulations and Orders

Marginal note:Regulations

• 43 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations

  • (a) authorizing persons or classes of persons to enter a preclearance area and establishing conditions of entry for those persons;

  • (b) imposing conditions on the exercise of the authority of the operator of a facility to authorize the entry of persons into a preclearance area under paragraph 17(e), or prohibiting the operator of a facility from authorizing a person to enter a preclearance area;

  • (c) respecting obligations on the operator of a facility, including with respect to access of people and goods to preclearance areas and preclearance perimeters, the security of preclearance areas and preclearance perimeters, the demarcation of preclearance areas and preclearance perimeters, and signage or other means of communication with respect to preclearance areas and preclearance perimeters;

  • (d) respecting the disposal of seized, forfeited or abandoned goods and the return of seized goods; and

  • (e) prescribing anything that by this Part is to be prescribed by regulation.

• Marginal note:Different treatment

  (2) The regulations may distinguish between individual preclearance areas or individual preclearance perimeters and between classes of such areas or perimeters.

Marginal note:Amendment of schedule

44 The Governor in Council may, by order, amend the schedule by adding, amending or deleting the reference to a location in which an area may be designated as a preclearance area or a preclearance perimeter.

Marginal note:Authorization — access

45 The Minister may, by order, authorize a person who, or class of persons that, is not otherwise authorized to do so to enter a preclearance area and establish conditions of entry for those persons.

PART 2Preclearance by Canada in the United States

Definitions

Marginal note:Definitions

46 The following definitions apply in this Part.

border services officer

border services officer means a person who is assigned to conduct preclearance in the United States and is

• (a) employed by the Canada Border Services Agency in the administration or enforcement of the Customs Act, the Customs Tariff or the Special Import Measures Act;

• (b) designated under subsection 9(2) of the Canada Border Services Agency Act; or

• (c) designated or authorized under section 6 of the Immigration and Refugee Protection Act. (agent des services frontaliers)

other public officer

other public officer means a person, other than a border services officer, who is designated or authorized to exercise powers or perform duties or functions under preclearance legislation described in paragraph (a) of the definition of that expression in this section, and who is assigned to conduct preclearance in the United States. (autre fonctionnaire)

preclearance

preclearance means the exercise of powers and the performance of duties and functions by a border services officer or other public officer under sections 47 to 51 and regulations made under paragraph 57(1)(a). (précontrôle)

preclearance area

preclearance area means an area in the United States that is

• (a) designated by the Government of the United States as a preclearance area under the Agreement; and

• (b) designated as a customs office under section 5 of the Customs Act. (zone de précontrôle)

preclearance legislation

preclearance legislation means

• (a) the provisions — of an Act of Parliament other than this Act, or of regulations made under such an Act — that apply in respect of the entry of persons or the importation of goods into Canada, including provisions relating to customs, agriculture or public health and safety; and

• (b) the provisions — of an Act of a provincial legislature, or of regulations made under such an Act — that authorize the collection by a border services officer of taxes, fees, mark-ups or other amounts.

It does not include any provision that creates an offence or any provision of the Immigration and Refugee Protection Act or its regulations. (législation relative au précontrôle)

preclearance perimeter

preclearance perimeter means an area in the United States that is

• (a) designated by the Government of the United States as a preclearance perimeter under the Agreement; and

• (b) designated as a customs office under section 5 of the Customs Act. (périmètre de précontrôle)

Preclearance

Marginal note:Application of preclearance legislation

• 47 (1) Subject to the regulations, preclearance legislation applies to a traveller and goods bound for Canada in a preclearance area or preclearance perimeter as if the traveller had entered, and the goods had been imported into, Canada.

• Marginal note:Powers, duties and functions

  (2) Subject to section 49 and the regulations, a border services officer or other public officer may, in a preclearance area or preclearance perimeter, exercise the powers and perform the duties and functions that are conferred on the officer under preclearance legislation with respect to travellers and goods bound for Canada, as if the officer were in Canada.

• Marginal note:Refusal

  (3) A border services officer or other public officer may, in a preclearance area or preclearance perimeter, refuse to permit travellers to proceed, or goods to be taken, to Canada through the preclearance area or preclearance perimeter if the entry of the traveller, or the importation of the goods, into Canada does not comply with preclearance legislation.

• Marginal note:For greater certainty

  (4) For greater certainty, a border services officer or other public officer in a preclearance area or preclearance perimeter may, to the extent they are permitted to do so under the powers, duties and functions that are conferred on them under preclearance legislation,

  • (a) subject to subsection 49(4), impose an administrative monetary penalty or other civil sanction in accordance with preclearance legislation; and

  • (b) collect any amounts — including duties, taxes and fees — owing under preclearance legislation.

• Marginal note:Sections 20 and 21 of Customs Act

  (5) For the purposes of sections 20 and 21 of the Customs Act, goods, as defined in section 2 of that Act, are to be treated as if they have been transported entirely within Canada if they are transported from a preclearance area or preclearance perimeter to a place in Canada over territory or waters outside Canada.

Marginal note:Application of Immigration and Refugee Protection Act

• 48 (1) For greater certainty, a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is, for the purposes of the Immigration and Refugee Protection Act, outside Canada.

• Marginal note:No claim for refugee protection

  (2) No claim for refugee protection under section 99 of the Immigration and Refugee Protection Act may be made in a preclearance area or preclearance perimeter.

• Marginal note:Powers, duties and functions

  (3) Subject to section 49 and the regulations, a border services officer may, in a preclearance area or preclearance perimeter, exercise the powers and perform the duties and functions specified in their designation or authorization under section 6 of the Immigration and Refugee Protection Act with respect to travellers bound for Canada.

• Marginal note:Preparation of report — inadmissibility

  (4) A border services officer may prepare a report setting out the relevant facts, and transmit it to the Minister of Public Safety and Emergency Preparedness, if the officer is of the opinion that a foreign national or permanent resident in a preclearance area or preclearance perimeter is inadmissible on any ground of inadmissibility that is set out in the Immigration and Refugee Protection Act and that is prescribed by regulations made under subsection (7).

• Marginal note:Refusal to permit entrance

  (5) If the Minister of Public Safety and Emergency Preparedness is of the opinion that the report is well-founded, he or she may refuse to permit the foreign national — or, despite subsections 19(2) and 27(1) of the Immigration and Refugee Protection Act, the permanent resident — from entering Canada through the preclearance area or preclearance perimeter.

• Marginal note:Delegation of powers

  (6) Anything that may be done by the Minister of Public Safety and Emergency Preparedness under subsection (5) may be done by a border services officer who is so authorized in writing by that Minister, without proof of the authenticity of the authorization.

• Marginal note:Regulations

  (7) The Governor in Council may make regulations prescribing grounds of inadmissibility that are set out in the Immigration and Refugee Protection Act for the purpose of subsection (4). The regulations may distinguish between foreign nationals and permanent residents and between classes of foreign nationals.

• Marginal note:Definitions

  (8) In this section, foreign national and permanent resident have the same meanings as in subsection 2(1) of the Immigration and Refugee Protection Act.

Marginal note:Limitation

• 49 (1) A border services officer or other public officer is not permitted, in a preclearance area or preclearance perimeter, to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest, except to the extent that such powers are conferred on the officer by the laws of the United States.

• Marginal note:Exception

  (2) Subsection (1) does not apply to an examination within the meaning of the Immigration and Refugee Protection Act.

• Marginal note:Restriction

  (3) The authority that may designate or authorize a border services officer or other public officer to exercise powers, or perform duties or functions, under preclearance legislation or the Immigration and Refugee Protection Act may restrict or exclude the exercise of a power, or the performance of a duty or function, in a preclearance area or preclearance perimeter by the officer or by a class of border service officers or other public officers.

• Marginal note:No penalty or sanction — United States prosecution

  (4) No administrative monetary penalty or other civil sanction may be imposed with respect to an act or omission committed by a person in a preclearance area or preclearance perimeter if a prosecution for an offence is instituted in the United States with respect to the act or omission that would give rise to it. If such a prosecution is instituted after a penalty or sanction has been imposed, the penalty or sanction is a nullity and any payment in respect of it must be reimbursed.

Marginal note:Proceeds of crime — reporting

50 If a border services officer transfers, to a United States federal, state, tribal or local law enforcement agent, currency or a monetary instrument that was retained in a preclearance area or preclearance perimeter as a result of the application of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the officer must, without delay, report the circumstances of the transfer to the President of the Canada Border Services Agency and to the Financial Transactions and Reports Analysis Centre of Canada. The officer’s report must be provided in the form and manner that are specified by the Centre.

Marginal note:Detained goods

51 If goods are detained under the laws of the United States by a border services officer or other public officer in the course of preclearance, a border services officer or other public officer may, to the extent permitted by the laws of the United States, deal with those goods as if they were detained under the applicable preclearance legislation.

Detention and Delivery under Laws of the United States

Marginal note:For greater certainty

• 52 (1) For greater certainty, section 19 and subsection 27(1) of the Immigration and Refugee Protection Act do not operate so as to prevent a border services officer from, under the laws of the United States, detaining a person in a preclearance area or preclearance perimeter and delivering them into the custody of a United States federal, state, tribal or local law enforcement agent.

• Marginal note:Information

  (2) If a person or goods are detained under the laws of the United States in a preclearance area or preclearance perimeter by a border services officer and delivered into the custody of a United States federal, state, tribal or local law enforcement agent, a border services officer may disclose to the agent any information — including personal information, as defined in section 3 of the Privacy Act — that relates to the circumstances of that detention and delivery.

Exemption from Compliance on Entry into Canada

Marginal note:Exempt from further compliance

• 53 (1) If a traveller bound for Canada has fully met, in a preclearance area or preclearance perimeter, an obligation under preclearance legislation or under the Immigration and Refugee Protection Act that applies on entry into Canada, the traveller is exempt from again complying with that obligation once they enter Canada, unless a border services officer or other public officer requires the traveller to do so.

• Marginal note:Obligation under regulations

  (2) If a traveller bound for Canada has fully met, in a preclearance area or preclearance perimeter, an obligation under the regulations that is an adaptation of an equivalent obligation under preclearance legislation or under the Immigration and Refugee Protection Act that applies on entry into Canada, the traveller is exempt from complying with that equivalent obligation once they enter Canada, unless a border services officer or other public officer requires the traveller to do so.

• Marginal note:Officers

  (3) In this section, a reference to a “border services officer or other public officer” includes a reference to a person who is employed, designated or authorized as set out in the definition border services officer or other public officer in section 46 but who has not been assigned to conduct preclearance in the United States.

Withdrawal

Marginal note:Traveller may withdraw from preclearance

• 54 (1) Despite any preclearance legislation and the Immigration and Refugee Protection Act, every traveller bound for Canada, unless they are detained, may withdraw from preclearance and may leave a preclearance area or preclearance perimeter without departing for Canada.

• Marginal note:For greater certainty

  (2) For greater certainty, despite any obligation that would otherwise apply under section 47, under the Immigration and Refugee Protection Act or under the regulations, a traveller who withdraws from preclearance is not required to answer any question asked of them for the purpose of conducting preclearance.

Marginal note:Traveller’s obligations

55 Subject to the laws of the United States, a traveller who withdraws from preclearance must

• (a) answer truthfully any question asked by a border services officer for the purpose of identifying the traveller or of determining their reason for withdrawing; and

• (b) comply with any other direction made by a border services officer that such an officer is authorized to make under the laws of the United States when a traveller withdraws.

Marginal note:Powers, duties and functions on withdrawal

56 After a traveller has indicated that he or she is withdrawing from preclearance, a border services officer or other public officer is not permitted to exercise any powers, or perform any duties or functions, other than those authorized under the laws of the United States when a traveller withdraws.

Regulations

Marginal note:Governor in Council

• 57 (1) The Governor in Council may make regulations

  • (a) adapting, for the purpose of applying it in a preclearance area or preclearance perimeter,

    • (i) any preclearance legislation described in paragraph (a) of the definition of that expression in section 46, or

    • (ii) any provision of the Immigration and Refugee Protection Act or of regulations made under that Act; and

  • (b) restricting or excluding the application of any such preclearance legislation or provision in a preclearance area or preclearance perimeter.

• Marginal note:Different treatment

  (2) The regulations made under subsection (1) may distinguish between individual preclearance areas or individual preclearance perimeters and between classes of such areas or perimeters.

Offences — Acts or Omissions in Preclearance Area or Preclearance Perimeter

Marginal note:Deemed commission in Canada

• 58 (1) A person is deemed to have committed an act or omission in Canada if the act or omission is committed in a preclearance area or preclearance perimeter and, had it been committed in Canada, would constitute

  • (a) an offence, under any Act of Parliament other than the Immigration and Refugee Protection Act, that relates to the entry of persons or importation of goods into Canada; or

  • (b) a conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, such an offence.

• Marginal note:Element of offence — entry or importation

  (2) For the purpose of determining whether an act or omission would constitute an offence referred to in paragraph (1)(a) or (b),

  • (a) if an element of the offence is the entry of a person into Canada, a person who is a traveller bound for Canada and who enters a preclearance area or preclearance perimeter is considered to have entered Canada; and

  • (b) if an element of the offence is the importation of goods into Canada, goods that are bound for Canada and that are brought into a preclearance area or preclearance perimeter are considered to have been imported into Canada.

• Marginal note:Jurisdiction

  (3) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1), proceedings for an offence in respect of that act or omission may be commenced in any territorial division in Canada. The person may be tried and punished for that offence as if the offence had been committed in that territorial division.

• Marginal note:Previously tried in the United States

  (4) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1) and they have been tried and dealt with in the United States for an offence in respect of the act or omission so that, if they had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, they are deemed to have been so tried and dealt with in Canada.

• Marginal note:For greater certainty

  (5) For greater certainty, sections 135 and 136 of the Immigration and Refugee Protection Act apply with respect to an act or omission committed in a preclearance area or preclearance perimeter.

Jurisdiction — Offence by Canadian Officer

Marginal note:Primary criminal jurisdiction

• 59 (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

60 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 3Related Amendments to the Criminal Code

61 [Amendment]

62 [Amendment]

PART 3.1Independent Review

Marginal note:Review and report

62.1 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

Consequential Amendment to the Customs Act

63 [Amendment]

Repeal

Marginal note:Repeal

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

Coming into Force

Marginal note:Order in council

Footnote ^*65 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Act in force August 15, 2019, see SI/2019-34.]