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

• Published date: 08 March 2018
• Section: Part III - Acts of Parliament
• Gazette Issue: 2 - [object Object]

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

SUMMARY

This enactment implements 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), done at Washington on March 16, 2015, to provide for the preclearance in each country of travellers and goods bound for the other country.

Part 1 of the enactment authorizes United States preclearance officers to conduct preclearance in Canada of travellers and goods bound for the United States and, among other things, it

• (a) authorizes a federal Minister to designate preclearance areas and preclearance perimeters in Canada, in which preclearance may take place;

• (b) provides United States preclearance officers with powers to facilitate preclearance;

• (c) establishes that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;

• (d) authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;

• (e) allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained under Part 1; and

• (f) limits the ability to request the extradition or provisional arrest of a current or former United States preclearance officer.

Part 2 of the enactment provides for the preclearance in the United States, by Canadian officers, of travellers and goods bound for Canada. Among other things, Part 2

• (a) specifies how the Immigration and Refugee Protection Act will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters;

• (b) authorizes the Governor in Council to make regulations adapting, restricting or excluding the application of provisions of the Immigration and Refugee Protection Act and that other Canadian legislation in preclearance areas and preclearance perimeters;

• (c) prevents, as required under the Agreement, the exercise of powers of Canadian officers under Canadian law with respect to questioning or interrogation, examination, search, seizure, forfeiture, detention and arrest in preclearance areas and preclearance perimeters, as similar powers will be conferred under the laws of the United States on Canadian officers;

• (d) allows a traveller bound for Canada to withdraw from the preclearance process, unless the traveller is detained under the laws of the United States;

• (e) deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada; and

• (f) grants the Attorney General of Canada the exclusive authority to commence and conduct a prosecution of a Canadian officer with respect to an act or omission committed in the United States.

Part 3 of the enactment makes related amendments to the Criminal Code to provide United States preclearance officers with an exemption from criminal liability under the Criminal Code and the Firearms Act with respect to the carriage of firearms and other regulated items. It also amends the Criminal Code to provide for a stay of proceedings against a United States preclearance officer when the Government of the United States provides notice under paragraph 14 of Article X of the Agreement.

Part 3.1 of the enactment provides for an independent review relating to the administration and operation of the Preclearance Act, 2016.

Part 4 of the enactment makes a consequential amendment to the Customs Act, repeals the Preclearance Act and contains the coming-into-force provision.

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

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...