Law:Preclearance Act

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S.c. 1999, c. 20

Assented to 1999-06-17

An Act authorizing the United States to preclear travellers and goods in Canada for entry into the United States for the purposes of customs, immigration, public health, food inspection and plant and animal health

Preamble

WHEREAS the Agreement between the Government of Canada and the Government of the United States of America on Air Transport Preclearance was entered into on May 8, 1974;

WHEREAS since that date it has become desirable to put in place statutory authority, on a reciprocal basis in both Canada and the United States, to facilitate the movement of travellers and goods across the border between the two countries by all means of transportation;

WHEREAS it would facilitate cross-border travel and movement of goods if those provisions of American law directly related to the admission of travellers and the importation of goods into the United States, but excluding criminal law, were allowed to be administered in Canada;

AND WHEREAS the administration of any provision of American 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;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Preclearance Act.


Interpretation

Definitions

2. The definitions in this section apply in this Act.

“Canadian officer”

« agent canadien »

“Canadian officer” means a peace officer or a person who is authorized to enforce an Act of Parliament.

“goods”

« marchandises »

“goods” includes means of transport, animals and plants and their products, and any document in any form, but does not include anything prescribed by a regulation made under paragraph 38(1)(a).

“Minister”

« ministre »

“Minister”, in respect of any provision of this Act, means the member or members of the Queen’s Privy Council for Canada designated under section 3 as the Minister or Ministers for the purpose of that provision.

“preclearance area”

« zone de précontrôle »

“preclearance area” means an area designated by the Minister under section 7.

“preclearance laws”

« droit de précontrôle »

“preclearance laws” means the law of the United States with respect to customs, immigration, public health, food inspection and plant and animal health that is applicable to the admission of travellers or the importation of goods to the United States, including the laws listed in the schedule. It includes monetary penalty provisions in such law but does not include anything that would be considered criminal under Canadian law.

“preclearance officer”

« contrôleur »

“preclearance officer” means a person authorized by the United States to perform preclearance duties in Canada for the purposes of customs, immigration, public health, food inspection and plant and animal health.


Designation Of Minister

Order designating Minister

3. The Governor in Council may, by order, designate any member or members of the Queen’s Privy Council for Canada as the Minister or Ministers for the purpose of any provision of this Act.


Purpose

Purpose

4. The purpose of this Act is to permit the administration of preclearance laws in Canada, subject to Canadian constitutional safeguards, in order to facilitate the movement of travellers and goods between Canada and the United States, based on the principle of reciprocity.

Reciprocity

5. The Governor in Council may, on the recommendation of the Minister, by order, restrict any immunity or privileges under this Act if, in the opinion of the Governor in Council, the immunity or privileges exceed those accorded to Canada by the United States.


Administration Of Preclearance Laws

Preclearance laws

6. (1) Preclearance laws may be administered in Canada in a preclearance area with respect to travellers who seek admission to, and with respect to goods to be imported into, the United States, subject to the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.

Preclearance laws not to be administered

(2) When proceedings are instituted in Canada with respect to an act or omission that occurs in a preclearance area and that is an offence under Canadian law punishable by indictment or on summary conviction, monetary penalties that could otherwise be imposed under preclearance laws may not be imposed in Canada with respect to that act or omission.

Canadian officer

(3) Nothing in this Act precludes a Canadian officer from enforcing Canadian law in a preclearance area.


Preclearance And Intransit Areas

Preclearance areas

7. (1) The Minister may designate preclearance areas where preclearance officers may preclear travellers and goods for entry into the United States.

Air travel

(2) The Minister may designate all or part of a preclearance area as an intransit area that is to be used for the preclearance of travellers and goods that are in transit through Canada by air to the United States.

Amendment, cancellation or reinstatement of designation

(3) The Minister may amend, cancel or reinstate at any time a designation made under this section.

Access to a preclearance area

8. (1) Only persons who are travellers destined for the United States or any person or category of persons designated by regulation may enter a preclearance area.

Reporting to a preclearance officer

(2) Every traveller who enters a preclearance area must report to a preclearance officer without delay.

Arrival in an intransit area

9. In order to travel through Canada to the United States through an intransit area, a traveller must report without delay on arrival in Canada to a preclearance officer at the intransit area.

Right of traveller to leave preclearance area

10. (1) Every traveller has the right, at any stage of the preclearance process, to leave a preclearance area without departing for the United States, unless a preclearance officer informs the traveller that the officer suspects on reasonable grounds that the traveller has committed an offence under section 33 or 34.

Departure from an intransit area

(2) Every traveller, whether travelling from Canada or in transit through Canada, who leaves an intransit area without departing immediately for the United States must report without delay to a customs officer and an immigration officer for examination.


Powers Of Preclearance Officers

Powers and duties — preclearance area

11. (1) A preclearance officer may exercise the powers conferred and perform the duties imposed on the officer under this Act and the regulations only in a preclearance area.

Outside a preclearance area

(2) Outside a preclearance area, a preclearance officer may examine a means of transport that is subject to preclearance, including goods, currency and monetary instruments that are in, or that are to be loaded onto, that means of transport.

Reporting after examination

(3) After the examination described in subsection (2), the preclearance officer may request that a traveller, or anything that is in or that is to be loaded onto the means of transport, be sent to a preclearance area to be dealt with in accordance with this Act.

Assistance of a Canadian officer

(4) If a traveller refuses to go to a preclearance area, the preclearance officer may request a Canadian officer to take the traveller to the preclearance area, and the Canadian officer is authorized to do so.

Protection of persons acting under authority

12. (1) A preclearance officer is, if the officer acts on reasonable grounds, justified in doing what the officer is required or authorized to do under this Act or the regulations, and in using as much force as is necessary for that purpose.

When not protected

(2) A preclearance officer must not use force that is intended or is likely to cause death or grievous bodily harm unless the officer believes on reasonable grounds that it is necessary for self-preservation or the preservation of anyone under the officer’s protection from death or grievous bodily harm.

Assistance of a Canadian officer

13. A preclearance officer may request a Canadian officer to assist in exercising the powers of search, examination, seizure and detention conferred on the preclearance officer by this Act, and the Canadian officer is authorized to exercise those powers.

Orders of a preclearance officer

14. A preclearance officer may order anyone found in a preclearance area to report to the officer or to leave the area.

Reporting goods

15. (1) Every traveller reporting to a preclearance officer must report all goods in their possession or that form part of their baggage or that are on board a means of transport under their charge.

Examination of goods

(2) If requested to do so by a preclearance officer, a traveller must present to the officer any of their goods, remove any covering from the goods, unload any means of transport or open any part of it, or open or unpack any package or container that the officer wishes to examine.

Answers to questions

16. (1) If the traveller chooses to answer any question that is asked by a preclearance officer for preclearance purposes, the traveller must answer truthfully.

Refusal to answer

(2) If the traveller refuses to answer any question asked for preclearance purposes, the preclearance officer may order the traveller to leave the preclearance area.

Refusal to answer not grounds for suspicion

(3) The refusal by a traveller to answer any question asked by a preclearance officer does not in and of itself constitute reasonable grounds for the officer to suspect that a search of the traveller is necessary for the purposes of this Act or that an offence has been committed under section 33 or 34.

Assistance of Canadian officer

17. A preclearance officer may request a Canadian officer to remove from a preclearance area any person who refuses to obey an order described in section 14 or subsection 16(2), and the Canadian officer is authorized to remove that person.

Refusal to preclear

18. If a traveller, or a person in control of goods, does not satisfy a preclearance officer that they can be admitted or that their goods can be imported to the United States in accordance with preclearance laws, the officer may refuse to preclear the traveller or goods.


Search Of Persons

Definitions

19. The definitions in this section apply in sections 20 to 23.

“frisk search”

« fouille par palpation »

“frisk search” means a search by manual or technical means of a person’s clothed body.

“strip search”

« fouille à nu »

“strip search” means a visual inspection of a person’s naked body.

Frisk search — danger

20. A preclearance officer may conduct a frisk search of any person if the officer suspects on reasonable grounds that the person is carrying anything that would present a danger to human life or safety.

Frisk search — evidence

21. A preclearance officer may conduct a frisk search of a traveller if the officer suspects on reasonable grounds that the traveller is carrying anything that would afford evidence of a contravention of section 33.

Strip search

22. (1) A preclearance officer may detain any person if the officer suspects on reasonable grounds that a strip search is necessary for the purpose of section 20 or 21 and, in that case, must without delay request a Canadian officer to conduct the search.

Powers of Canadian officer

(2) After receiving a request described in subsection (1), the Canadian officer may conduct the strip search if the officer suspects on reasonable grounds that the search is necessary for the purpose of section 20 or 21. The preclearance officer may be present for the search.

Right to be taken before a senior officer

23. (1) A preclearance officer or Canadian officer must, before conducting a search described in section 21 or 22, inform the traveller of their right to be taken before a senior officer and, if the traveller so requests, must take the traveller before that officer.

Powers of senior officer

(2) The senior officer may direct the traveller to be searched only if the officer suspects on reasonable grounds that the search is necessary for the purpose of section 21 or 22.

Search by same sex

(3) A preclearance officer or Canadian officer may not perform a search under section 21 or 22 of a person of the opposite sex. If no officer of the same sex is available, the preclearance officer or Canadian officer may authorize any suitable person of the same sex to perform the search.

Observation of strip search

(4) A preclearance officer may not observe a strip search under section 22 of a person of the opposite sex. If no officer of the same sex is available, the preclearance officer may authorize any suitable person of the same sex to observe the search.

Detention of travellers

24. (1) A preclearance officer may detain any traveller if the officer believes on reasonable grounds that the traveller has contravened section 33 or has committed an offence under an Act of Parliament that is punishable by indictment or on summary conviction.

Delivery to a peace officer

(2) The preclearance officer must deliver any traveller detained under subsection (1) as soon as possible into the custody of a peace officer within the meaning of paragraph (c) of the definition “peace officer” in section 2 of the Criminal Code.


Examination Of Goods

Examination of goods

25. (1) A preclearance officer may examine any goods that are submitted for preclearance, and may open or cause to be opened any package or container and take samples of the goods in reasonable amounts.

Examination of currency and monetary instruments

(2) A preclearance officer may examine currency and monetary instruments that are found in a preclearance area.

Right to detain goods

26. (1) A preclearance officer

(a) may detain any goods that are submitted for preclearance, until the officer is satisfied that the goods have been dealt with in accordance with this Act, the regulations and preclearance laws; or

(b) may detain anything designated by regulations under paragraph 38(1)(d), and must without delay transfer that thing to a Canadian officer.

Detention mandatory

(2) A preclearance officer must detain anything the possession, import, export or handling of which the officer believes on reasonable grounds to be an offence under Canadian law punishable by indictment or on summary conviction and anything that the officer believes on reasonable grounds will afford evidence of that offence, and must without delay transfer anything so detained to a Canadian officer who is authorized to receive it.

Seizure of goods

27. (1) A preclearance officer may seize any goods referred to in paragraph 26(1)(a) that the officer believes on reasonable grounds relate to a false or deceptive statement made in contravention of section 33.

Seizure of evidence

(2) A preclearance officer may, if the officer believes on reasonable grounds that there has been a contravention of section 33, seize any goods that the officer believes on reasonable grounds will afford evidence of the contravention.

Forfeiture of seized goods

28. Subject to subsection 26(2), goods lawfully seized by a preclearance officer under this Act are subject to forfeiture procedures under preclearance laws.


Passenger Information

Definition of “specified passenger information”

29. For the purposes of sections 30 to 32, “specified passenger information” means information prescribed by regulations under paragraph 38(1)(c) about any person who is travelling by aircraft to the United States and whose travel route provides for arrival in Canada in an intransit area.

Duty to provide specified passenger information

30. (1) A transportation company that operates an aircraft carrying passengers described in section 29 must, before the arrival of the aircraft in Canada, provide a preclearance officer with specified passenger information for those passengers.

Failure to provide specified passenger information

(2) If a transportation company fails to provide the information required under subsection (1), the preclearance officer may refuse to preclear the passengers or their goods in an intransit area.

Use of specified passenger information

31. (1) A preclearance officer may use specified passenger information for the purposes of discharging their duties under this Act and preclearance laws, and may

(a) examine the information for travel methods, behaviours or patterns for the purpose of applying the appropriate preclearance measures in respect of passengers and their goods; and

(b) search and match data contained in the information with other data available to the officer.

Disclosure of information to a Canadian officer

(2) A preclearance officer may disclose to a Canadian officer any specified passenger information and any of the preclearance officer’s findings with respect to the information, to the extent that the information is required by the Canadian officer for the performance of the duties of the Canadian officer, and to the extent that the Canadian officer is authorized by law to have access to the information.

Use and destruction of passenger information

32. (1) A preclearance officer must

(a) use any specified passenger information only in the administration and enforcement of this Act and preclearance laws; and

(b) destroy specified passenger information within 24 hours after the officer obtains it, unless the information is reasonably required for the administration or enforcement of Canadian law or preclearance laws.

Duty to protect information

(2) A preclearance officer must take reasonable measures to protect specified passenger information that is under the officer’s control from unauthorized use and disclosure.


Offences And Punishment

False or deceptive statements

33. (1) Every person who makes an oral or written statement to a preclearance officer with respect to the preclearance of the person or any goods for entry into the United States that the person knows to be false or deceptive or to contain information that the person knows is false or deceptive is guilty of an offence punishable on summary conviction and liable to a maximum fine of $5,000.

No imprisonment on default of payment of fine

(2) Notwithstanding subsection 787(2) of the Criminal Code, a term of imprisonment may not be imposed for default of payment of a fine imposed under subsection (1).

No criminal record

(3) An offence under subsection (1) does not constitute an offence for the purposes of the Criminal Records Act.

Obstruction of officer

34. Every person who resists or wilfully obstructs a preclearance officer or a Canadian officer in the execution of the officer’s duty or any 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.

Unauthorized use of specified passenger information

35. Every person who fails to comply with the provisions of section 32 is guilty of an offence and liable on summary conviction to a fine of not more than $5,000 or to imprisonment for a term of not more than 12 months, or to both.


Civil Liability And Immunity

Relief against the United States

36. (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 to be done within the scope of their duties by a preclearance officer.

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 to be done by the officer under this Act or the regulations.

Crown Liability and Proceedings Act

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

Persons assisting preclearance officers

(4) For the purposes of this section, the term “preclearance officer” includes any person who assists a preclearance officer at the officer’s request, but does not include a Canadian officer.

The following provision is not in force.Decisions not reviewable

37. No decision of a preclearance officer to refuse preclearance, or to refuse the admission of persons or the importation of goods to the United States, is subject to judicial review in Canada.


Regulations

Regulations

38. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations

(a) excluding anything from the definition of “goods” in section 2;

(b) designating the persons or categories of persons who may enter a preclearance area;

(c) prescribing specified passenger information, the manner of providing it, and the purpose for which, and the manner in which, a preclearance officer may use and communicate that information;

(d) designating anything the possession, import, export or handling of which is prohibited, controlled or regulated by or under this or any other Act of Parliament;

(e) providing for the manner of disposing of detained, seized or forfeited goods; and

(f) prescribing anything that by this Act is to be prescribed.

Amendment of schedule

(2) The Minister may, by order, amend the schedule by adding or deleting any law of the United States with respect to customs, immigration, public health, food inspection and plant and animal health that is applicable to the admission of travellers or the importation of goods to the United States.


Five-year Review

Review

39. Five years after this Act comes into force, the Minister shall cause an independent review of the Act and its administration and operation to be conducted, and shall cause a report on the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the review is completed.


Coming Into Force

Coming into force

Schedule

(Section 2 and subsection 38(2))

Agriculture (Title 7 of the U.S. Code)

Aliens and Nationality (Title 8 of the U.S. Code)

Custom Duties (Title 19 of the U.S. Code)

Food and Drugs (Title 21 of the U.S. Code)

Immigration and Nationality Act of 1952, as amended

Public Health and Welfare (Title 42 of the U.S. Code)


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