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

Marginal note:Monitored bowel movement

• 23 (1) 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

  • (a) the traveller is concealing goods inside their body;

  • (b) the monitoring would permit the finding or retrieval of the goods; and

  • (c) the monitoring is necessary for the purpose of conducting preclearance.

• Marginal note:Delivery to border services officer

  (2) 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.

• Marginal note:Monitoring by border services officer

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

  • (a) the traveller is concealing goods inside their body;

  • (b) the monitoring would permit the finding or retrieval of the goods; and

  • (c) the monitoring is necessary for the purpose of conducting preclearance.

Marginal note:X-ray or body cavity search

• 24 (1) 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

  • (a) the traveller is concealing goods inside their body;

  • (b) 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

  • (c) the search is necessary for the purpose of conducting preclearance.

• Marginal note:Traveller’s consent

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

• Marginal note:Transfer to medical facility

  (3) 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.

• Marginal note:Person conducting search

  (4) 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.

• Marginal note:Danger to traveller’s health or safety

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

  • (a) 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

  • (b) 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.

Marginal note:Right to be taken before senior officer

• 25 (1) 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.

• Marginal note:Senior officer’s agreement

  (2) 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.

Marginal note:Search by officer of same sex

• 26 (1) 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.

• Marginal note:Appointed observer

  (2) 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.

Marginal note:Situation referred to in certain provisions

26.1 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.

Preclearance Perimeter

Marginal note:Traveller’s obligations

• 27 (1) A traveller bound for the United States who is in a preclearance perimeter must comply with

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

  • (b) any requirement that is prescribed by regulation.

• Marginal note:Obligations of other persons

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

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

  • (b) comply with any requirement that is prescribed by regulation.

Marginal note:Powers of preclearance officer

28 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,

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

• (b) question a traveller bound for the United States;

• (c) direct a traveller bound for the United States to go to a preclearance area;

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

• (e) 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

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

Withdrawal

Marginal note:Traveller may withdraw from preclearance

29 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.

Marginal note:Traveller’s obligations

30 A traveller who withdraws from preclearance must

• (a) 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

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

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.