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1st Session, 36th Parliament, 46-47-48 Elizabeth II, 1997-98-99
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The Senate of Canada
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BILL S-22 |
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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
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Preamble
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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;
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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;
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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;
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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;
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NOW, THEREFORE, Her Majesty, by and
with the advice and consent of the Senate and
House of Commons of Canada, enacts as
follows:
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SHORT TITLE |
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Short title
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1. This Act may be cited as the
Preclearance Act.
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INTERPRETATION |
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Definitions
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2. The definitions in this section apply in
this Act.
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``Canadian
officer'' « agent canadien »
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``Canadian officer'' means a peace officer or
a person who is authorized to enforce an Act
of Parliament.
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``goods'' « marchandis es »
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``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).
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``Minister'' « ministre »
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``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.
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``preclear- ance area'' « zone de précon- trôle »
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``preclearance area'' means an area
designated by the Minister under section 7.
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``preclear- ance laws'' « droit de précon- trôle »
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``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.
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``preclear- ance officer'' « contrôleur »
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``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.
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DESIGNATION OF MINISTER |
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Order
designating
Minister
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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.
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PURPOSE |
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Purpose
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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.
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Reciprocity
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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.
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ADMINISTRATION OF PRECLEARANCE LAWS |
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Preclearance
laws
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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.
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Preclearance
laws not to be
administered
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(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.
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Canadian
officer
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(3) Nothing in this Act precludes a
Canadian officer from enforcing Canadian
law in a preclearance area.
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PRECLEARANCE AND INTRANSIT AREAS |
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Preclearance
areas
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7. (1) The Minister may designate
preclearance areas where preclearance
officers may preclear travellers and goods for
entry into the United States.
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Air travel
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(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.
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Amendment,
cancellation
or reinstate- ment of designation
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(3) The Minister may amend, cancel or
reinstate at any time a designation made under
this section.
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Access to a
preclearance
area
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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.
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Reporting to a
preclearance
officer
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(2) Every traveller who enters a
preclearance area must report to a
preclearance officer without delay.
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Arrival in an
intransit area
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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.
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Right of
traveller to
leave
preclearance
area
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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.
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Departure
from an
intransit area
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(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.
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POWERS OF PRECLEARANCE OFFICERS |
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Powers and
duties -
preclearance
area
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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.
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Outside a
preclearance
area
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(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.
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Reporting
after
examination
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(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.
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Assistance of
a Canadian
officer
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(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.
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Protection of
persons acting
under
authority
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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.
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When not
protected
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(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.
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Assistance of
a Canadian
officer
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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.
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Orders of a
preclearance
officer
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14. A preclearance officer may order
anyone found in a preclearance area to report
to the officer or to leave the area.
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Reporting
goods
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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.
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Examination
of goods
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(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.
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Answers to
questions
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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.
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Refusal to
answer
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(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.
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Refusal to
answer not
grounds for
suspicion
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(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.
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Assistance of
Canadian
officer
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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.
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Refusal to
preclear
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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.
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SEARCH OF PERSONS |
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Definitions
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19. The definitions in this section apply in
sections 20 to 23.
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``frisk search'' « fouille par palpation »
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``frisk search'' means a search by manual or
technical means of a person's clothed body.
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``strip search'' « fouille à nu »
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``strip search'' means a visual inspection of a
person's naked body.
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Frisk
search -
danger
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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.
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Frisk
search -
evidence
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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.
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Strip search
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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.
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Powers of
Canadian
officer
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(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.
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Right to be
taken before a
senior officer
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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.
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Powers of
senior officer
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(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.
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Search by
same sex
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(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.
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Observation
of strip search
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(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.
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Detention of
travellers
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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.
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Delivery to a
peace officer
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(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.
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