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

Act current to 2022-09-11 and last amended on 2019-08-15. Previous Versions

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

Police Officers and Border Services Officers

Marginal note:Request for assistance — police officer

  •  (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

  •  (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

  •  (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

 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

  •  (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

 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

 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

 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

  •  (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

 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

 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

 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

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

  •  (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

  •  (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

  •  (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.

 
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