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

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.