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.