Bill S-7
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- ENGLISH
- SUMMARY SUMMARY
- Customs Act Customs Act
- Preclearance Act, 2016 Preclearance Act, 2016
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REPRINT
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First Session, Forty-fourth Parliament, 70-71 Elizabeth II, 2021-2022 |
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SENATE OF CANADA |
An Act to amend the Customs Act and the Preclearance Act, 2016
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AS PASSED
BY THE SENATE
June 20, 2022
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This reprint corrects an administrative error in the incorporation of amendments made by the Standing Senate Committee on National Security and Defence.
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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
(c) update certain provisions respecting enforcement, offences and punishment.
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
(c) update the French version of that Act in respect of a traveller’s obligation to identify themselves.
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Available on the Senate of Canada website at the following address:
www.sencanada.ca/en |
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1st Session, 44th Parliament, 70-71 Elizabeth II, 2021-2022 |
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SENATE OF CANADA |
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BILL S-7 |
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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, has had its network connectivity disabled and is in the custody or possession of a person if the officer has reasonable grounds to suspect that
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(a) this Act or a regulation made under it has been or might be contravened in respect of one or more of the documents;
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(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
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(c) one or more of the documents may afford evidence in respect of a contravention under
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(i) this Act or a regulation made under it, or
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(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.
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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
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(a) sale;
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(b) an industrial, occupational, commercial, institutional or other similar use; or
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(c) any other prescribed use.
2001, c. 25, s. 60
2 Paragraph 99.4(a) of the Act is replaced by the following:
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(a) respecting the examination of documents under subsection 99.01(1);
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(a.01) respecting measures to be taken by an officer if a person asserts that a document to be examined under subsection 99.01(1) is subject to a privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries, or litigation privilege;
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(a.1) 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 any of the following items 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, with any necessary modifications, that there are reasonable grounds to believe that any of the items will be found in the building, receptacle or place:
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(a) any goods or conveyance in respect of which this Act or the regulations have been contravened or are suspected of having been contravened;
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(b) any conveyance that has been made use of in respect of such goods, whether at or after the time of the contravention; and
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(c) anything, including a record or document in any form, 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) A warrant issued under subsection (1) may be executed anywhere in Canada.
(3) Paragraph 111(3)(c) of the English version of the Act is replaced by the following:
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(c) anything, including a record or document in any form, 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, in any form, one or more copies of the record, 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
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(a) is guilty of an offence punishable on summary conviction and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both; or
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(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.
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 eight 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:
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d) ordonner à toute personne de se présenter à un contrôleur, de donner son identité 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 and that has its network connectivity disabled if the preclearance officer has reasonable grounds to suspect that
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(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
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(b) one or more of the documents in question may afford evidence in respect of a contravention of any of those laws.
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
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(a) sale;
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(b) an industrial, occupational, commercial, institutional or other similar use; or
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(c) any other use that is prescribed by regulation.
10 Paragraph 27(2)(a) of the French version of the Act is replaced by the following:
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a) sur ordre du contrôleur, de donner son identité 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:
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a) ordonner à toute personne de donner son identité 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, that has its network connectivity disabled and that is to be loaded onto a conveyance referred to in paragraph 6(2)(a) if the preclearance officer has reasonable grounds to suspect that
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(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
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(b) one or more of the documents may afford evidence in respect of a contravention of any of those laws.
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
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(a) sale;
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(b) an industrial, occupational, commercial, institutional or other similar use; or
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(c) any other use that is prescribed by regulation.
13 Paragraph 31(2)(a) of the French version of the Act is replaced by the following:
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a) lui ordonner de donner son identité 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:
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a) ordonner au voyageur de donner son identité 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), subsection 20.1(1), paragraph 28(e) or subsection 28.1(1) 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):
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(c.1) respecting examinations, searches and detentions under section 20.1 or 28.1;
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(c.2) respecting measures to be taken by a preclearance officer if a person asserts that a document to be examined, searched or detained under section 20.1 or 28.1 is subject to a privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries, or litigation privilege;
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
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(a) the day on which they are repealed,
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(b) the day on which a regulation made under this Act that has the same effect as the directions comes into force,
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(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
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(d) the day that is specified by the Minister, if the Minister extends their effective period.
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.
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Published under authority of the Senate of Canada
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