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

Obligations

Marginal note:Traveller’s obligations

• 18 (1) A traveller bound for the United States who is in a preclearance area must

  • (a) 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

  • (b) on entry, immediately report to a preclearance officer.

• Marginal note:Obligations subject to withdrawal

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

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

  • (b) 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;

  • (c) 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

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

• Marginal note:Obligations of other persons

  (3) 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.

Powers, Duties and Functions

Marginal note:Only in preclearance area

19 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.

Marginal note:General powers

• 20 (1) A preclearance officer may, for the purpose of conducting preclearance,

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

  • (b) collect information from a traveller bound for the United States;

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

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

  • (e) direct a traveller, or a person not authorized to be in a preclearance area, to leave a preclearance area.

• Marginal note:Biometric information

  (2) 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.

Marginal note:Frisk search — concealed goods

21 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.

Marginal note:Strip search

• 22 (1) 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

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

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

• Marginal note:Request — border services officer

  (2) 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.

• Marginal note:Strip search — border services officer

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

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

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

• Marginal note:Strip search — preclearance officer

  (4) 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) a border services officer declines to conduct it;

  • (b) 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

  • (c) 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.

• Marginal note:Observation by preclearance officer

  (5) 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.

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).