BILL S-22 - As passed by the House of Commons

	1st Session, 36th Parliament, 46-47-48 Elizabeth II, 1997-98-99
	The Senate of Canada
	BILL S-22
	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
Preamble	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;
	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;
	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;
	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;
	NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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