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

Act current to 2019-08-28 and last amended on 2019-08-15. Previous Versions

Preclearance Act, 2016

S.C. 2017, c. 27

Assented to 2017-12-12

An Act respecting the preclearance of persons and goods in Canada and the United States

Preamble

Whereas the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (the “Agreement”) was done at Washington on March 16, 2015;

Whereas the Agreement builds on the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Toronto on January 18, 2001;

Whereas the Agreement imposes reciprocal obligations on both countries to facilitate travel and trade while enhancing the security of both countries;

Whereas, under the Agreement, United States preclearance officers may be authorized to conduct preclearance in Canada of travellers and goods bound for the United States and, as part of preclearance, to exercise powers, and perform duties and functions, under the laws of the United States on the admission of travellers and goods into the United States;

Whereas the exercise of any power and performance of any duty or function under United States law in Canada is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;

And whereas, under the Agreement, Canadian border services officers and other Canadian public officers may be authorized to conduct preclearance in the United States of travellers and goods bound for Canada and, as part of preclearance, to exercise powers and perform duties and functions under Canadian law concerning the admission of travellers and goods into Canada;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Marginal note:Short title

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

Interpretation and Application

Marginal note:Definitions

  •  (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

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

Designation of Ministers

Marginal note:Act

  •  (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

 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 

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

  •  (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

 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

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

Marginal note:Canadian law

 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

  •  (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

  •  (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

  •  (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.

 
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