Preclearance Act, 2016

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

The following definitions apply in this Act.

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 includes

currency and monetary instruments; and

for greater certainty, animals and plants and their products, conveyances and any document in any form. (biens)

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)

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.

For greater certainty, in this Act Act of Parliament means an Act of the Parliament of Canada.

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

The Governor in Council may, by order, designate a federal Minister as the Minister responsible for this Act.

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).

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.

The following definitions apply in this Part.

biometric information means information that is derived from a person’s measurable physical characteristics. (renseignements biométriques)

border services officer means a person who is

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;

designated under subsection 9(2) of the Canada Border Services Agency Act; or

designated or authorized under section 6 of the Immigration and Refugee Protection Act. (agent des services frontaliers)

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 means a search by hand or technical means of a person’s clothed body. (fouille par palpation)

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 means a person authorized by the Government of the United States to conduct preclearance in Canada. (contrôleur)

strip search means a visual inspection of a person’s unclothed or partially clothed body. (fouille à nu)

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.

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:

the conveyance;

a corridor between the preclearance area designated under subsection (1) and the conveyance; and

any other conveyance that is used to transport travellers or goods between the preclearance area designated under subsection (1) and the conveyance.

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.

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

For greater certainty, Canadian law applies, and may be administered and enforced, in preclearance areas and preclearance perimeters.

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.

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.

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.

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.

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.

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.

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.

A preclearance officer may, in a preclearance area or preclearance perimeter, conduct a frisk search of a person if the officer has reasonable grounds to suspect that the person has on their person anything that would present a danger to human life or safety.

The preclearance officer may detain anything found during the search that would present a danger to human life or safety.

If a preclearance officer has reasonable grounds to believe that a person has committed an offence under an Act of Parliament, the officer may, in a preclearance area or preclearance perimeter,

detain the person; and

detain any goods they have on their person and any goods under their control, if the goods may be evidence of the offence.

The preclearance officer must, as soon as feasible, deliver the person and any detained goods into the custody of a police officer or border services officer.

If a preclearance officer has reasonable grounds to believe that a traveller bound for the United States poses a risk of significant harm to public health, the officer may, in a preclearance area or preclearance perimeter, detain the traveller.

The preclearance officer must, as soon as feasible, deliver the traveller into the custody of a police officer, a border services officer or a person designated as a quarantine officer under subsection 5(2) of the Quarantine Act.

A preclearance officer is, if they act on reasonable grounds, justified in doing what they are required or authorized to do under this Act and in using as much force as is necessary for that purpose.

However, a preclearance officer is not justified in using force that is intended or is likely to cause death or grievous bodily harm unless the officer has reasonable grounds to believe that it is necessary for self-preservation or the preservation of anyone under the officer’s protection from death or grievous bodily harm.

Only the following persons may enter a preclearance area:

travellers bound for the United States;

preclearance officers;

police officers and border services officers, for the purposes of exercising powers and performing duties and functions under this Part;

persons who are authorized by the Minister under section 45 or by regulation; and

subject to any regulations, persons who are authorized by the operator of a facility.

A traveller bound for the United States who is in a preclearance area must

have in their possession identification that is issued by the federal government, a provincial or local government or a foreign government and that, except in the circumstances that may be prescribed by regulation, contains their photograph; and

on entry, immediately report to a preclearance officer.

Unless they withdraw from preclearance under section 29, a traveller bound for the United States who is in a preclearance area must

answer truthfully any question that is asked by a preclearance officer in accordance with this Act;

as directed by a preclearance officer, present any goods in the traveller’s possession, open or unpack the goods, and unload a conveyance for which they are responsible or open any part of it;

comply with any other direction given to the traveller in accordance with this Act by a preclearance officer, police officer or border services officer; and

comply with any other requirement that is prescribed by regulation.

A person, other than a traveller bound for the United States, who is in a preclearance area must comply with any requirement that is prescribed by regulation.

A preclearance officer may exercise the powers, and perform the duties and functions, set out in sections 20 to 26 only in a preclearance area.

A preclearance officer may, for the purpose of conducting preclearance,

question a traveller bound for the United States;

collect information from a traveller bound for the United States;

examine, search and detain goods bound for the United States, including by taking samples of the goods in reasonable amounts;

direct a person to report to a preclearance officer, identify themselves, and state their reason for being in a preclearance area; and

direct a traveller, or a person not authorized to be in a preclearance area, to leave a preclearance area.

In the course of conducting preclearance, a preclearance officer may, for the purpose of verifying the identity of a traveller bound for the United States, collect biometric information from the traveller, other than from the traveller’s bodily substances. However, the officer is not permitted to collect biometric information unless notification that travellers may withdraw from preclearance is provided in the preclearance area, through signage or other means of communication.

A preclearance officer may, for the purpose of conducting preclearance, conduct a frisk search of a traveller bound for the United States if the officer has reasonable grounds to suspect that the traveller has on their person concealed goods.

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

the traveller has on their person concealed goods or anything that would present a danger to human life or safety; and

the search is necessary for the purpose of conducting preclearance.

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.

A border services officer may conduct the strip search if they have reasonable grounds to suspect that

the traveller has on their person concealed goods or anything that would present a danger to human life or safety; and

the strip search is necessary for the purpose of conducting preclearance.

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 border services officer declines to conduct it;

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

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.

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.

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

the traveller is concealing goods inside their body;

the monitoring would permit the finding or retrieval of the goods; and

the monitoring is necessary for the purpose of conducting preclearance.

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.

A border services officer may conduct a monitored bowel movement if they have reasonable grounds to suspect that

the traveller is concealing goods inside their body;

the monitoring would permit the finding or retrieval of the goods; and

the monitoring is necessary for the purpose of conducting preclearance.

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

the traveller is concealing goods inside their body;

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

the search is necessary for the purpose of conducting preclearance.

Despite paragraph 18(2)(c), no x-ray search or body cavity search may be conducted unless the traveller consents.

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.

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.

Regardless of whether the traveller consents to an x-ray search or body cavity search,

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

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.

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.

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.

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.

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.

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.

A traveller bound for the United States who is in a preclearance perimeter must comply with

any direction given to the traveller in accordance with this Act by a preclearance officer, police officer or border services officer; and

any requirement that is prescribed by regulation.

A person, other than a traveller bound for the United States, who is in a preclearance perimeter must

as directed by a preclearance officer, identify themselves and state their reason for being in the preclearance perimeter; and

comply with any requirement that is prescribed by regulation.

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,

direct that a person identify themselves and state their reason for being in the preclearance perimeter;

question a traveller bound for the United States;

direct a traveller bound for the United States to go to a preclearance area;

examine the exterior of a conveyance referred to in paragraph 6(2)(a);

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

return goods bound for the United States to a preclearance area, or direct a person with control of the goods to do so.

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.

A traveller who withdraws from preclearance must

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

comply with any other direction given by a preclearance officer in accordance with subsection 31(2).

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.

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:

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;

question the traveller for the purposes of identifying them or determining their reason for withdrawing;

record and retain information obtained from the traveller under paragraph (a) or (b), including by making a copy of the traveller’s identification;

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;

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;

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.

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.

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:

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;

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;

question the traveller;

collect information from the traveller;

examine, search and detain goods in the traveller’s possession or control, including by taking samples of the goods in reasonable amounts;

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

detain the traveller for the purpose of a strip search, if the officer also has reasonable grounds to suspect that

the traveller has on their person concealed goods or anything that would present a danger to human life or safety, and

the search is necessary for the purpose of maintaining the security of or control over the border.

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)”.

The exercise of any of the powers set out in subsection (1) with respect to a traveller constitutes a detention of the traveller.

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.

No person is permitted to

collect any biometric information in respect of a traveller after the traveller has indicated that they are withdrawing from preclearance;

use a photograph of the traveller obtained under paragraph 31(2)(d) or 32(1)(b) to produce biometric information; or

disclose such a photograph for the purpose of producing biometric information.

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.

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.

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.

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.

At the request of a preclearance officer, a police officer may, for the purpose of maintaining public peace,

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);

bring to a preclearance area a traveller who refuses to comply with a direction given under paragraph 28(c); and

assist the preclearance officer in the exercise of their powers, and performance of their duties and functions, under this Part.

At the request of a preclearance officer, a border services officer may assist the preclearance officer in conducting a frisk search under section 13.

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:

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);

in the case of either officer, before transferring the traveller to a medical facility under subsection 24(3).

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.

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.

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.

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).

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,

is guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or

is guilty of an offence punishable on summary conviction.

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.

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.

For greater certainty, a preclearance officer is not a servant of the Crown for the purposes of the Crown Liability and Proceedings Act.