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Bill S-7

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SUMMARY
Customs Act
Preclearance Act, 2016
EXPLANATORY NOTES

First Session, Forty-fourth Parliament,

70-71 Elizabeth II, 2021-2022

SENATE OF CANADA

BILL S-7
An Act to amend the Customs Act and the Preclearance Act, 2016

FIRST READING, March 31, 2022

THE HONOURABLE SENATOR GOLD, P.‍C.

91018

SUMMARY

This enactment amends the Customs Act to

(a) clarify the circumstances in which border service officers may examine documents stored on personal digital devices;

(b) authorize the making of regulations in respect of those examinations; and

The enactment also amends the Preclearance Act, 2016 to

(a) clarify the circumstances in which preclearance officers may examine, search and detain documents stored on personal digital devices;

(b) authorize the making of regulations and the giving of ministerial directions in respect of those examinations, searches and detentions; and

Available on the Senate of Canada website at the following address:

www.sencanada.ca/en

1st Session, 44th Parliament,

70-71 Elizabeth II, 2021-2022

SENATE OF CANADA

BILL S-7

An Act to amend the Customs Act and the Preclearance Act, 2016

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.‍S.‍, c. 1 (2nd Supp.‍)

Customs Act

1 The Customs Act is amended by adding the following after section 99:

Documents on personal digital device

99.‍01 (1) At any time up to the time of release or at any time up to the time of exportation, an officer designated under subsection (2) may, in accordance with the regulations, examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that has been imported or is about to be exported and is in the custody or possession of a person if the officer has a reasonable general concern that

(a) this Act or a regulation made under it has been or might be contravened in respect of one or more of the documents;
(b) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act has been or might be contravened in respect of one or more of the documents; or
(c) one or more of the documents may afford evidence in respect of a contravention under
- (i) this Act or a regulation made under it, or
- (ii) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act.
  End of inserted block

Designation by President

(2) The President may designate any officer or class of officers for the purposes of subsection (1).

Non-application

(3) This section does not apply in respect of personal digital devices that are imported or exported solely for

(a) sale;
(b) an industrial, occupational, commercial, institutional or other similar use; or
(c) any other prescribed use.
End of inserted block

2001, c. 25, s. 60

2 Paragraph 99.‍4(a) of the Act is replaced by the following:

(a) Insertion start respecting the examination of documents under subsection 99.‍01(1); Insertion end
Insertion start (a.‍1) Insertion end prescribing persons or classes of persons who may be searched under subsection 99.‍2(2);

3 Section 110 of the Act is amended by adding the following after subsection (3):

Electronic copy

(3.‍1) An officer who exercises the power referred to in subsection (3) may make an electronic copy of a record or document if it is impossible or impractical to seize anything on which the record or document is stored or if seizing the thing is likely to degrade the record or document or make it unusable as evidence.

1992, c. 1, s. 143 (Sch. VI, item 9)‍(E)

4 (1) Subsection 111(1) of the English version of the Act is replaced by the following:

Information for search warrant

111 (1) A justice of the peace may at any time issue a warrant authorizing an officer to search a building, receptacle or place and to seize Insertion start any of the following items Insertion end if the justice of the peace is satisfied by information on oath in the form set out as Form 1 in Part XXVIII of the Criminal Code, Insertion start with any necessary modifications Insertion end , that there are reasonable grounds to believe that Insertion start any of the items Insertion end will be found in the building, receptacle or place:

(a) any goods or conveyance in respect of which this Act or the regulations have been contravened or are suspected of having been contravened;
(b) any conveyance that has been made use of in respect of such goods, whether at or after the time of the contravention; Insertion start and Insertion end
(c) anything, Insertion start including a record or document in any form Insertion end , that there are reasonable grounds to believe will afford evidence in respect of a contravention of this Act or the regulations.

(2) Subsection 111(2) of the Act is replaced by the following:

Execution of warrant

(2) Insertion start A Insertion end warrant Insertion start issued under subsection (1) Insertion end may be executed Insertion start anywhere in Canada Insertion end .

(3) Paragraph 111(3)‍(c) of the English version of the Act is replaced by the following:

(c) anything, Insertion start including a record or document in any form Insertion end , that the officer believes on reasonable grounds will afford evidence in respect of a contravention of this Act or the regulations.

(4) Section 111 of the Act is amended by adding the following after subsection (3):

Electronic copy

(3.‍1) An officer who executes a warrant issued under subsection (1) may make an electronic copy of a record or document if it is impossible or impractical to seize anything on which the record or document is stored or if seizing the thing is likely to degrade the record or document or make it unusable as evidence.

(5) Section 111 of the Act is amended by adding the following after subsection (7):

Means of telecommunication

(8) An information referred to in subsection (1) may be submitted by telephone or other means of telecommunication in accordance with section 487.‍1 of the Criminal Code, with any necessary modifications.

2001, c. 25, s. 65

5 Subsection 115(1) of the Act is replaced by the following:

Copies of records

115 (1) If any record is examined or seized under this Act, the Minister, or the officer by whom it is examined or seized, may make or cause to be made, Insertion start in any form Insertion end , one or more copies of Insertion start the record Insertion end , and a copy purporting to be certified by the Minister or a person authorized by the Minister is admissible in evidence and has the same probative force as the original would have if it had been proved in the ordinary way.

2001, c. 17, s. 256

6 Section 160.‍1 of the Act is replaced by the following:

Penalty for hindering an officer

160.‍1 Every person who contravenes section 153.‍1

(a) is guilty of an offence Insertion start punishable Insertion end on summary conviction and liable to a fine of not more than Insertion start $10,000 Insertion end or Insertion start to Insertion end imprisonment for a term Insertion start of Insertion end not Insertion start more than six Insertion end months, or to both; or
Start of inserted block
(b) is guilty of an indictable offence and liable to a fine of not more than $50,000 or to imprisonment for a term of not more than five years, or to both.
End of inserted block

7 Section 163 of the Act is replaced by the following:

Limitation or prescription period in summary convictions

163 Proceedings may be instituted by way of summary conviction in respect of offences under this Act at any time within but not later than Insertion start eight Insertion end years after the time when the subject-matter of the proceedings arose.

2017, c. 27

Preclearance Act, 2016

8 Paragraph 20(1)‍(d) of the French version of the Preclearance Act, 2016 is replaced by the following:

d) ordonner à toute personne de se présenter à un contrôleur, de Insertion start donner son identité Insertion end et de faire état de la raison de sa présence dans la zone de précontrôle;

9 The Act is amended by adding the following after section 20:

Documents on personal digital device

20.‍1 (1) A preclearance officer may, for the purposes of conducting preclearance, examine, search and detain documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that is in the possession or control of a traveller bound for the United States if the preclearance officer has a reasonable general concern that

(a) a law of the United States on importation of goods, immigration, agriculture or public health and safety has been or might be contravened in respect of one or more of the documents; or
(b) one or more of the documents in question may afford evidence in respect of a contravention of any of those laws.
End of inserted block

For greater certainty

(2) For greater certainty, the power to examine, search and detain documents under subsection (1) includes the power to detain the personal digital device on which they are stored.

Regulations and directions

(3) A preclearance officer who examines, searches or detains documents under subsection (1) must do so in accordance with the regulations or any directions given under subsection 45.‍1(1).

Non-application

(4) This section does not apply in respect of personal digital devices that are bound for the United States solely for

(a) sale;
(b) an industrial, occupational, commercial, institutional or other similar use; or
(c) any other use that is prescribed by regulation.
End of inserted block

10 Paragraph 27(2)‍(a) of the French version of the Act is replaced by the following:

a) sur ordre du contrôleur, de Insertion start donner son identité Insertion end et de faire état de la raison de sa présence dans le périmètre de précontrôle;

11 Paragraph 28(a) of the French version of the Act is replaced by the following:

a) ordonner à toute personne de Insertion start donner son identité Insertion end et de faire état de la raison de sa présence dans le périmètre de précontrôle;

12 The Act is amended by adding the following after section 28:

Documents on personal digital device

28.‍1 (1) 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, examine, search and detain documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that is in the possession or control of a traveller bound for the United States and that is to be loaded onto a conveyance referred to in paragraph 6(2)‍(a) if the preclearance officer has a reasonable general concern that

(a) a law of the United States on importation of goods, immigration, agriculture or public health and safety has been or might be contravened in respect of one or more of the documents; or
(b) one or more of the documents may afford evidence in respect of a contravention of any of those laws.
End of inserted block

For greater certainty

(2) For greater certainty, the power to examine, search and detain documents under subsection (1) includes the power to detain the personal digital device on which they are stored.

Regulations and directions

(3) A preclearance officer who examines, searches or detains documents under subsection (1) must do so in accordance with the regulations or any directions given under subsection 45.‍1(1).

Non-application

(4) This section does not apply in respect of personal digital devices that are bound for the United States solely for

(a) sale;
(b) an industrial, occupational, commercial, institutional or other similar use; or
(c) any other use that is prescribed by regulation.
End of inserted block

13 Paragraph 31(2)‍(a) of the French version of the Act is replaced by the following:

a) lui ordonner de Insertion start donner son identité Insertion end et de fournir une pièce d’identité comportant sa photographie qui est délivrée par l’administration fédérale, une administration provinciale ou locale ou toute administration d’un autre pays;

14 Paragraph 32(1)‍(a) of the French version of the Act is replaced by the following:

a) ordonner au voyageur de Insertion start donner son identité Insertion end et de fournir une pièce d’identité comportant sa photographie qui est délivrée par l’administration fédérale, une administration provinciale ou locale ou toute administration d’un autre pays;

15 Subsection 34(1) of the Act is replaced by the following:

Preclearance officer

34 (1) Subject to subsection (2), in a preclearance area or preclearance perimeter, a preclearance officer may seize, including as forfeit, or accept if they are abandoned, goods that are detained by a preclearance officer under paragraph 20(1)‍(c), Insertion start subsection 20.‍1(1) Insertion end , Insertion start paragraph Insertion end 28(e) or Insertion start subsection 28.‍1(1) Insertion end to the extent, and in a manner, that is consistent with the laws of the United States on importation of goods, immigration, agriculture and public health and safety.

16 Subsection 43(1) of the Act is amended by adding the following after paragraph (c):

Start of inserted block
(c.‍1) respecting examinations, searches and detentions under section 20.‍1 or 28.‍1;
End of inserted block

17 The Act is amended by adding the following after section 45:

Ministerial directions

45.‍1 (1) The Minister may give directions respecting examinations, searches and detentions under section 20.‍1 or 28.‍1.

Cessation of effect

(2) The directions have effect from the time they are given and cease to have effect on the earliest of

(a) the day on which they are repealed,
(b) the day on which a regulation made under this Act that has the same effect as the directions comes into force,
(c) one year after the day on which the directions are given or any shorter period that may be specified in them, unless they are extended by the Minister, and
(d) the day that is specified by the Minister, if the Minister extends their effective period.
End of inserted block

Extension

(3) If the Minister amends the directions to extend their effective period, the extension must not exceed one year after the end of the applicable period referred to in paragraph (2)‍(c).

Statutory Instruments Act

(4) The Statutory Instruments Act does not apply to the directions. However, the Minister must cause the directions to be published in the Canada Gazette within 60 days after the day on which they are given.

Conflict

(5) If there is a conflict between the directions and the regulations, the regulations prevail to the extent of the conflict.

Published under authority of the Senate of Canada

EXPLANATORY NOTES

Customs Act

Clause 1: New.

Clause 2: Relevant portion of section 99.‍4:

99.‍4 The Governor in Council may make regulations

(a) prescribing persons or classes of persons who may be searched under subsection 99.‍2(2);

Clause 3: New.

Clause 4: (1) and (2) Existing text of subsections 111(1) and (2):

111 (1) A justice of the peace who is satisfied by information on oath in the form set out as Form 1 in Part XXVIII of the Criminal Code, varied to suit the case, that there are reasonable grounds to believe that there will be found in a building, receptacle or place

(a) any goods or conveyance in respect of which this Act or the regulations have been contravened or are suspected of having been contravened,
(b) any conveyance that has been made use of in respect of such goods, whether at or after the time of the contravention, or
(c) anything that there are reasonable grounds to believe will afford evidence in respect of a contravention of this Act or the regulations,

may at any time issue a warrant under his hand authorizing an officer to search the building, receptacle or place for any such thing and to seize it.

(2) A justice of the peace may, where a building, receptacle or place referred to in subsection (1) is in a territorial division other than that in which the justice of the peace has jurisdiction, issue his warrant in a form similar to the form referred to in subsection (1), modified according to the circumstances, and the warrant may be executed in the other territorial division after it has been endorsed, in the manner set out in Form 28 of Part XXVIII of the Criminal Code, by a justice of the peace having jurisdiction in that territorial division.

(3) Relevant portion of subsection 111(3):

(3) An officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,

.‍.‍.
(c) anything that the officer believes on reasonable grounds will afford evidence in respect of a contravention of this Act or the regulations.

(4) New.

(5) New.

Clause 5: Existing text of subsection 115(1):

115 (1) If any record is examined or seized under this Act, the Minister, or the officer by whom it is examined or seized, may make or cause to be made one or more copies of it, and a copy purporting to be certified by the Minister or a person authorized by the Minister is admissible in evidence and has the same probative force as the original would have if it had been proved in the ordinary way.

Clause 6: Existing text of section 160.‍1:

160.‍1 Every person who contravenes section 153.‍1 is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to

(a) a fine of not less than $1,000 and not more than $25,000; or
(b) both a fine described in paragraph (a) and imprisonment for a term not exceeding twelve months.

Clause 7: Existing text of section 163:

163 Proceedings may be instituted by way of summary conviction in respect of offences under this Act at any time within but not later than three years after the time when the subject-matter of the proceedings arose.

Preclearance Act, 2016

Clause 8: Relevant portion of subsection 20(1):

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

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

Clause 9: New.

Clause 10: Relevant portion of subsection 27(2):

(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

Clause 11: Relevant portion of section 28:

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;

Clause 12: New.

Clause 13: Relevant portion of subsection 31(2):

(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;

Clause 14: Relevant portion of subsection 32(1):

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;

Clause 15: Existing text of subsection 34(1):

34 (1) Subject to subsection (2), in a preclearance area or preclearance perimeter, a preclearance officer may seize, including as forfeit, or accept if they are abandoned, goods that are detained by a preclearance officer under paragraph 20(1)‍(c) or 28(e) to the extent, and in a manner, that is consistent with the laws of the United States on importation of goods, immigration, agriculture and public health and safety.

Clause 16: Relevant portion of subsection 43(1):

43 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations

Clause 17: New.