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

Marginal note:Amendment of schedule

44 The Governor in Council may, by order, amend the schedule by adding, amending or deleting the reference to a location in which an area may be designated as a preclearance area or a preclearance perimeter.

Marginal note:Authorization — access

45 The Minister may, by order, authorize a person who, or class of persons that, is not otherwise authorized to do so to enter a preclearance area and establish conditions of entry for those persons.

PART 2Preclearance by Canada in the United States

Definitions

Marginal note:Definitions

46 The following definitions apply in this Part.

border services officer

border services officer means a person who is assigned to conduct preclearance in the United States and 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)

other public officer

other public officer means a person, other than a border services officer, who is designated or authorized to exercise powers or perform duties or functions under preclearance legislation described in paragraph (a) of the definition of that expression in this section, and who is assigned to conduct preclearance in the United States. (autre fonctionnaire)

preclearance

preclearance means the exercise of powers and the performance of duties and functions by a border services officer or other public officer under sections 47 to 51 and regulations made under paragraph 57(1)(a). (précontrôle)

preclearance area

preclearance area means an area in the United States that is

• (a) designated by the Government of the United States as a preclearance area under the Agreement; and

• (b) designated as a customs office under section 5 of the Customs Act. (zone de précontrôle)

preclearance legislation

preclearance legislation means

• (a) the provisions — of an Act of Parliament other than this Act, or of regulations made under such an Act — that apply in respect of the entry of persons or the importation of goods into Canada, including provisions relating to customs, agriculture or public health and safety; and

• (b) the provisions — of an Act of a provincial legislature, or of regulations made under such an Act — that authorize the collection by a border services officer of taxes, fees, mark-ups or other amounts.

It does not include any provision that creates an offence or any provision of the Immigration and Refugee Protection Act or its regulations. (législation relative au précontrôle)

preclearance perimeter

preclearance perimeter means an area in the United States that is

• (a) designated by the Government of the United States as a preclearance perimeter under the Agreement; and

• (b) designated as a customs office under section 5 of the Customs Act. (périmètre de précontrôle)

Preclearance

Marginal note:Application of preclearance legislation

• 47 (1) Subject to the regulations, preclearance legislation applies to a traveller and goods bound for Canada in a preclearance area or preclearance perimeter as if the traveller had entered, and the goods had been imported into, Canada.

• Marginal note:Powers, duties and functions

  (2) Subject to section 49 and the regulations, a border services officer or other public officer may, in a preclearance area or preclearance perimeter, exercise the powers and perform the duties and functions that are conferred on the officer under preclearance legislation with respect to travellers and goods bound for Canada, as if the officer were in Canada.

• Marginal note:Refusal

  (3) A border services officer or other public officer may, in a preclearance area or preclearance perimeter, refuse to permit travellers to proceed, or goods to be taken, to Canada through the preclearance area or preclearance perimeter if the entry of the traveller, or the importation of the goods, into Canada does not comply with preclearance legislation.

• Marginal note:For greater certainty

  (4) For greater certainty, a border services officer or other public officer in a preclearance area or preclearance perimeter may, to the extent they are permitted to do so under the powers, duties and functions that are conferred on them under preclearance legislation,

  • (a) subject to subsection 49(4), impose an administrative monetary penalty or other civil sanction in accordance with preclearance legislation; and

  • (b) collect any amounts — including duties, taxes and fees — owing under preclearance legislation.

• Marginal note:Sections 20 and 21 of Customs Act

  (5) For the purposes of sections 20 and 21 of the Customs Act, goods, as defined in section 2 of that Act, are to be treated as if they have been transported entirely within Canada if they are transported from a preclearance area or preclearance perimeter to a place in Canada over territory or waters outside Canada.

Marginal note:Application of Immigration and Refugee Protection Act

• 48 (1) For greater certainty, a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is, for the purposes of the Immigration and Refugee Protection Act, outside Canada.

• Marginal note:No claim for refugee protection

  (2) No claim for refugee protection under section 99 of the Immigration and Refugee Protection Act may be made in a preclearance area or preclearance perimeter.

• Marginal note:Powers, duties and functions

  (3) Subject to section 49 and the regulations, a border services officer may, in a preclearance area or preclearance perimeter, exercise the powers and perform the duties and functions specified in their designation or authorization under section 6 of the Immigration and Refugee Protection Act with respect to travellers bound for Canada.

• Marginal note:Preparation of report — inadmissibility

  (4) A border services officer may prepare a report setting out the relevant facts, and transmit it to the Minister of Public Safety and Emergency Preparedness, if the officer is of the opinion that a foreign national or permanent resident in a preclearance area or preclearance perimeter is inadmissible on any ground of inadmissibility that is set out in the Immigration and Refugee Protection Act and that is prescribed by regulations made under subsection (7).

• Marginal note:Refusal to permit entrance

  (5) If the Minister of Public Safety and Emergency Preparedness is of the opinion that the report is well-founded, he or she may refuse to permit the foreign national — or, despite subsections 19(2) and 27(1) of the Immigration and Refugee Protection Act, the permanent resident — from entering Canada through the preclearance area or preclearance perimeter.

• Marginal note:Delegation of powers

  (6) Anything that may be done by the Minister of Public Safety and Emergency Preparedness under subsection (5) may be done by a border services officer who is so authorized in writing by that Minister, without proof of the authenticity of the authorization.

• Marginal note:Regulations

  (7) The Governor in Council may make regulations prescribing grounds of inadmissibility that are set out in the Immigration and Refugee Protection Act for the purpose of subsection (4). The regulations may distinguish between foreign nationals and permanent residents and between classes of foreign nationals.

• Marginal note:Definitions

  (8) In this section, foreign national and permanent resident have the same meanings as in subsection 2(1) of the Immigration and Refugee Protection Act.

Marginal note:Limitation

• 49 (1) A border services officer or other public officer is not permitted, in a preclearance area or preclearance perimeter, to exercise any powers of questioning or interrogation, examination, search, seizure, forfeiture, detention or arrest, except to the extent that such powers are conferred on the officer by the laws of the United States.

• Marginal note:Exception

  (2) Subsection (1) does not apply to an examination within the meaning of the Immigration and Refugee Protection Act.

• Marginal note:Restriction

  (3) The authority that may designate or authorize a border services officer or other public officer to exercise powers, or perform duties or functions, under preclearance legislation or the Immigration and Refugee Protection Act may restrict or exclude the exercise of a power, or the performance of a duty or function, in a preclearance area or preclearance perimeter by the officer or by a class of border service officers or other public officers.

• Marginal note:No penalty or sanction — United States prosecution

  (4) No administrative monetary penalty or other civil sanction may be imposed with respect to an act or omission committed by a person in a preclearance area or preclearance perimeter if a prosecution for an offence is instituted in the United States 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.

Marginal note:Proceeds of crime — reporting

50 If a border services officer transfers, to a United States federal, state, tribal or local law enforcement agent, currency or a monetary instrument that was retained in a preclearance area or preclearance perimeter as a result of the application of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the officer must, without delay, report the circumstances of the transfer to the President of the Canada Border Services Agency and to the Financial Transactions and Reports Analysis Centre of Canada. The officer’s report must be provided in the form and manner that are specified by the Centre.

Marginal note:Detained goods

51 If goods are detained under the laws of the United States by a border services officer or other public officer in the course of preclearance, a border services officer or other public officer may, to the extent permitted by the laws of the United States, deal with those goods as if they were detained under the applicable preclearance legislation.

Detention and Delivery under Laws of the United States

Marginal note:For greater certainty

• 52 (1) For greater certainty, section 19 and subsection 27(1) of the Immigration and Refugee Protection Act do not operate so as to prevent a border services officer from, under the laws of the United States, detaining a person in a preclearance area or preclearance perimeter and delivering them into the custody of a United States federal, state, tribal or local law enforcement agent.

• Marginal note:Information

  (2) If a person or goods are detained under the laws of the United States in a preclearance area or preclearance perimeter by a border services officer and delivered into the custody of a United States federal, state, tribal or local law enforcement agent, a border services officer may disclose to the agent any information — including personal information, as defined in section 3 of the Privacy Act — that relates to the circumstances of that detention and delivery.

Exemption from Compliance on Entry into Canada

Marginal note:Exempt from further compliance

• 53 (1) If a traveller bound for Canada has fully met, in a preclearance area or preclearance perimeter, an obligation under preclearance legislation or under the Immigration and Refugee Protection Act that applies on entry into Canada, the traveller is exempt from again complying with that obligation once they enter Canada, unless a border services officer or other public officer requires the traveller to do so.

• Marginal note:Obligation under regulations

  (2) If a traveller bound for Canada has fully met, in a preclearance area or preclearance perimeter, an obligation under the regulations that is an adaptation of an equivalent obligation under preclearance legislation or under the Immigration and Refugee Protection Act that applies on entry into Canada, the traveller is exempt from complying with that equivalent obligation once they enter Canada, unless a border services officer or other public officer requires the traveller to do so.

• Marginal note:Officers

  (3) In this section, a reference to a “border services officer or other public officer” includes a reference to a person who is employed, designated or authorized as set out in the definition border services officer or other public officer in section 46 but who has not been assigned to conduct preclearance in the United States.