Preclearance Act, 2016 - C-23


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42nd Parliament, Session 1
Introduced: Friday 17th of June 2016
Status: First reading (Senate)

Sponsor:

Full text: Bill C-23

Description:

This bill allows preclearance in each country of travellers and goods bound for the other country.

Part 1 of the enactment authorizes United States preclearance officers to conduct preclearance in Canada of travellers and goods bound for the United States and, among other things, it

(a) authorizes a federal Minister to designate preclearance areas and preclearance perimeters in Canada, in which preclearance may take place;
(b) provides United States preclearance officers with powers to facilitate preclearance;
(c) establishes that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
(d) authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
(e) allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained under Part 1; and
(f) limits the ability to request the extradition or provisional arrest of a current or former United States preclearance officer.

Part 2 of the enactment provides for the preclearance in the United States, by Canadian officers, of travellers and goods bound for Canada. Among other things, Part 2

(a) specifies how the Immigration and Refugee Protection Act will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters;
(b) authorizes the Governor in Council to make regulations adapting, restricting or excluding the application of provisions of the Immigration and Refugee Protection Act and that other Canadian legislation in preclearance areas and preclearance perimeters;
(c) prevents, as required under the Agreement, the exercise of powers of Canadian officers under Canadian law with respect to questioning or interrogation, examination, search, seizure, forfeiture, detention and arrest in preclearance areas and preclearance perimeters, as similar powers will be conferred under the laws of the United States on Canadian officers;
(d) allows a traveller bound for Canada to withdraw from the preclearance process, unless the traveller is detained under the laws of the United States;
(e) deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada; and
(f) grants the Attorney General of Canada the exclusive authority to commence and conduct a prosecution of a Canadian officer with respect to an act or omission committed in the United States.

Part 3 of the enactment makes related amendments to the Criminal Code to provide United States preclearance officers with an exemption from criminal liability under the Criminal Code and the Firearms Act with respect to the carriage of firearms and other regulated items. It also amends the Criminal Code to provide for a stay of proceedings against a United States preclearance officer when the Government of the United States provides notice under paragraph 14 of Article X of the Agreement.

Part 4 of the enactment makes a consequential amendment to the Customs Act, repeals the Preclearance Act and contains the coming-into-force provision.

Notable section:

WITHDRAWAL:

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.

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).

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.

(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.

32 (1) 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:

(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) 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;
(c) question the traveller;
(d) collect information from the traveller;
(e) examine, search and detain goods in the traveller's possession or control, including by taking samples of the goods in reasonable amounts;
(f) 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
(g) detain the traveller for the purpose of a strip search, if the officer also has reasonable grounds to suspect that
(i) the traveller has on their person concealed goods or anything that would present a danger to human life or safety, and
(ii) the search is necessary for the purpose of maintaining the security of or control over the border.

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