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

Act current to 2021-11-17 and last amended on 2019-08-15. Previous Versions

PART 1Preclearance by the United States in Canada (continued)

Preclearance Area (continued)

Powers, Duties and Functions (continued)

Marginal note:Strip search

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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

 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

  •  (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

 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

 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

 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

  •  (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

  •  (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

  •  (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

  •  (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.

 
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