Canada: The Government Of Canada Implements Its New Preclearance Act

Last Updated: September 13 2019
Article by Henry J. Chang

On August 15, 2019, US Department of Homeland Security announced that the United States and Canada had implemented its Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of the United States of America and the Government of Canada (Preclearance Agreement). The Preclearance Agreement was signed by the US Secretary of Homeland Security and Canadian Minister of Public Safety and Emergency Preparedness on March 16, 2015, as part of the Beyond the Border Action Plan.

In furtherance of the Preclearance Agreement, the Government of Canada enacted the Preclearance Act, 2016 (New Preclearance Act), which received Royal Assent on December 12, 2017. It was intended to replace the Preclearance Act, 1999, (Old Preclearance Act), which was enacted on June 17, 1999. However, implementation of the New Preclearance Act was delayed until enabling regulations could be published. The Preclearance in Canada Regulations were published in the Canada Gazette on June 4, 2019. As a result, the Canadian and United States governments exchanged Diplomatic Notes on August 15, 2019, formally implementing the Preclearance Agreement.

The New Preclearance Act grants enhanced powers to United States Customs and Border Protection (USCBP) officers working at preclearance areas located in Canada. USCBP officers at the Canada-US land border already possess the broad authority to question, search, detain and arrest travellers because they carry out their duties while on US soil. However, the situation is different in the case of USCBP officers who are conducting preclearance (US Preclearance Officers), because they carry out their duties while on Canadian soil.

Even before the New Preclearance Act received Royal Assent, many Canadians expressed concerns about the enhanced powers that US Preclearance Officers would have when carrying out their duties in Canada. As the New Preclearance Act is now in force, it remains to be seen whether Canadians traveling to the United States through Canadian airports will experience a marked change in their legal rights.

A discussion of some of the most significant provisions contained in the New Preclearance Act appears below.

No recourse for most violations of Canadian law

The New Preclearance Act specifically states that a US Preclearance Officer must act in accordance with Canadian law, including the Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act.1 However, it is unlikely that Charter rights could ever be enforced against US Preclearance Officers or the United States government.

The New Preclearance Act makes clear that no action or civil proceeding may be brought against a US Preclearance Officer in respect of anything that is done or omitted in the exercise of their powers, or the performance of their duties and functions under the legislation.2 It also makes clear that such actions or civil proceedings must instead be brought against the United States directly and only if the United States is not immune under the State Immunity Act.3

The State Immunity Act provides that, unless it consents, a foreign state is immune from the jurisdiction of any Canadian court, except where the proceedings relate to: (a) any death, or personal or bodily injury, or (b) any damage to or loss of property that occurs in Canada.4 As a result, civil proceedings based on a US Preclearance Officer's alleged violation of Canadian law will be severely limited.

Although Canadians would still be able to commence civil proceedings against the United States government if the conduct of a US Preclearance Officer resulted in death, personal/bodily injury, or damage/loss to property, there are many instances where the Charter could be violated and where no recourse would be available. For example, the United States would be protected against a Charter violation involving a warrantless search of a traveler's electronic device, or discrimination based on race, religion, country of origin or sexual orientation.

When the Privacy Commissioner of Canada testified before the Senate Standing Committee on National Security and Defence (the Senate Committee) on Bill C-23 (which later became the New Preclearance Act), he said essentially the same thing:

Cabinet members, including the Prime Minister and the Minister of Public Safety, have sought to reassure Canadians by saying Canadian law, including the Canadian Charter of Rights and Freedoms, will apply to US officers as they perform their duties and exercise their powers in pre-clearance facilities (section 11 of Bill C-23). However, the principle of state immunity as enacted by the State Immunity Act, 1985 would appear to make the protections of section 11 of Bill C-23 hollow, as these protections could not be enforced in a court of law, except in circumstances largely irrelevant to the present discussion.

Even criminal conduct by a US Preclearance Officer may not be protected by Canadian law. Section 62 amends the Canadian Criminal Code so that, if a US Preclearance Officer is charged with a criminal offense (for example, sexually assaulting a traveler), the United States government may give notice of its intention to exercise primary criminal jurisdiction over the matter. If this occurs, any Canadian proceeding against the US Preclearance Officer will be stayed, and the alleged victim must rely on the US criminal justice system.

Authority to carry firearms in Canada in certain circumstances

Under the Old Preclearance Act, US Preclearance Officers could not carry firearms on Canadian soil. However, the New Preclearance Act contains amendments to the Canadian Criminal Code, which will permit US Preclearance Officers to possess, transfer, import and export a firearm, prohibited weapon (which includes a taser but also an automatic weapon), or restricted weapon (for example, a handgun) for the purposes of their duties or employment.5

Although the Preclearance Agreement describes a US Preclearance Officer's ability to possess the same firearms and other weapons that CBSA officers are authorized to possess in the same environment, the New Preclearance Act does not specifically limit a US Preclearance Officer's authority in this manner. It simply exempts US Preclearance Officers from applicable criminal laws relating to firearms and other weapons.

Authorization to use force

The New Preclearance Act states that US Preclearance Officers are justified in doing what they are required or authorized to do, and in using as much force as is necessary for that purpose, if they act on reasonable grounds.6 US Preclearance Officers are not justified in using force that is intended or likely to cause death or grievous bodily harm unless they have reasonable grounds to believe that it is necessary for self-preservation or the preservation (from death of grievous bodily harm) of anyone under their protection.7 However, the authorization to use reasonable force could allow them to temporarily detain travelers in connection with the performance of their duties.

Traveler obligations to respond to questions truthfully

The New Preclearance Act gives US Preclearance Officers the broad general power to question a traveler bound for the United States. There is no specific requirement that questions asked by the US Preclearance Officer be reasonable or even relevant to their admissibility.

Unless they choose to withdraw their application for admission, travelers have a positive obligation to answer truthfully any question that a US Preclearance Officer asks (even those that would be considered inappropriate).8 Under the Old Preclearance Act, a traveler was only required to answer truthfully if he or she voluntarily chose to answer the question.

Under the New Preclearance Act, travelers could be asked about their religion or other personal topics. For example, they may be asked whether they have ever smoked marijuana. Under the New Preclearance Act, a traveler bound for the United States is required to answer these questions and to do so truthfully.

The New Preclearance Act also makes it a criminal offense to make false or deceptive statements to a US Preclearance Officer. Any person who makes an oral or written statement to a US Preclearance Officer (with respect to the preclearance of a person or goods), which the person knows to contain information that is false or deceptive, is guilty of a summary conviction offense and is subject to a maximum fine of $5,000.9 In other words, not answering a US Preclearance Officer's question truthfully may result in criminal prosecution in Canada.

Under the New Preclearance Act, failure to answer any question may also result in the traveler being charged with resisting or willfully obstructing a US Preclearance Officer, which can be punished by up to two years of imprisonment.10 Although a similar offense appeared in the Old Preclearance Act, it also made clear that the mere refusal to answer a question asked by a US Preclearance Officer was not sufficient, on its own, to support such a charge; this language no longer appears in the New Preclearance Act.

Broad general power to examine, search and detain goods

The New Preclearance Act gives US Preclearance Officers the broad general power to examine, search and detain goods. However, this has the potential of narrowing the privacy rights of Canadians who are inspected by US Preclearance Officers on Canadian soil.

USCBP currently takes the position that its officers may demand passwords for a traveler's smartphone or laptop for further examination, since they are "goods" bound for the United States. However, on September 13, 2017, the Electronic Frontier Foundation and the American Civil Liberties Union filed a lawsuit against the United States government on behalf of 11 travelers (10 United States citizens and one lawful permanent resident), whose smartphones and other electronic devices were searched without a warrant at the United States border. The case is still pending.

It should be mentioned that CBSA also takes a similar position in relation to travelers arriving in Canada. However, the constitutionality of smartphone and laptop searches in Canada is still uncertain as well.

As mentioned above, the New Preclearance Act imposes criminal liability on any person who resists or willfully obstructs US Preclearance Officers in the exercise of their powers or the performance of their duties/functions. As a result, a traveler who refuses to provide a password for his or her smartphone or laptop could be theoretically be charged with an indictable offense, which carries a possible prison term of up to two years. At the very least, US Preclearance Officers could use the threat of criminal prosecution to compel travelers to turn over their smartphone and laptop passwords.

Travelers cannot withdraw applications for admission unconditionally

Under the Old Preclearance Act, travelers bound for the United States could withdraw their application for admission and choose to leave the preclearance area. US Preclearance Officers only had the authority to detain a traveler (for the purposes of turning them over to a police officer) if they suspected that the traveler had committed a Canadian criminal offense (for example, a controlled substance violation). Therefore, if a traveler bound for the United States was asked an inappropriate question, they could refuse to answer the question and simply withdraw their application for admission.

The New Preclearance Act still states that every traveler bound for the United States will be able to withdraw from preclearance (unless he or she is detained in accordance with the legislation), and then leave the preclearance area or perimeter. However, it imposes continuing obligations on the traveler to:

  • Truthfully answer any question asked by a US Preclearance Officer for the purpose of identifying the traveler or of determining their reason for withdrawing; and
  • Comply with any other direction given by the US Preclearance Officer in accordance with the New Preclearance Act.11

US Preclearance Officers could theoretically detain travelers who have withdrawn their application for admission until they provide a satisfactory answer regarding the reason for their withdrawal. Refusing to answer such questions could also result in criminal prosecution since, as mentioned above, it is a criminal offense to resist or willfully obstruct a US Preclearance Officer.

Powers of US Preclearance Officers to perform strip searches

The New Preclearance Act gives US Preclearance Officers the authority to perform strip searches, at least under certain circumstances. US Preclearance Officers may detain a traveler for a strip search if they have reasonable grounds to believe that the traveler is in possession of concealed goods or anything that would present a danger to human life or safety.12 They are supposed to request immediately that a CBSA officer perform the strip search.13 However, US Preclearance Officers also have the right to perform the strip search on their own if:

  • A CBSA officer declines to perform the strip search;
  • CBSA informs them that they are not able to perform the search within a reasonable time; or
  • CBSA agrees to conduct the strip search within a specific period, but no CBSA officer arrives within that period.14

Even if a CBSA officer performs the strip search, a US Preclearance Officer (of the same sex) may observe the strip search.15 If no such US Preclearance Officer is available, they may authorize any person of the same sex to observe the strip search.16

Before conducting a strip search, a US Preclearance Officer or CBSA officer must inform the traveler of their right to be taken before a senior officer.17 If the traveler is brought before a senior officer, the search may proceed only if that officer agrees that the search is authorized under the New Preclearance Act.18

Conclusion

There is no doubt that the New Preclearance Act is critical to the Preclearance Agreement, which will allow for the expansion of US preclearance operations to additional Canadian airports (such as Billy Bishop Airport in Toronto) and to other modes of travel (i.e., land, rail and marine); this is clearly a significant benefit for Canada. However, it remains to be seen whether Canadians traveling to the United States through Canadian airports will be adversely affected by its implementation.

Footnotes

1 [New Preclearance Act, Subsection 11(1).]

2 [New Preclearance Act, Subsection 39(2).]

3 [New Preclearance Act, Subsection 39(1).]

4 [State Immunity Act, Section 6.]

5 [New Preclearance Act, Section 117.071.]

6 [New Preclearance Act, Subsection 16(1).]

7 [New Preclearance Act, Subsection 16(2).]

8 [New Preclearance Act, Paragraph 18(2)(a).]

9 [New Preclearance Act, Section 37.]

10 [New Preclearance Act, Section 38.]

11 [New Preclearance Act, Subsection 30(a).]

12 [New Preclearance Act, Subsection 22(1).]

13 [New Preclearance Act, Subsection 22(2).]

14 [New Preclearance Act, Subsection 22(4).]

15 [New Preclearance Act, Subsection 22(5).]

16 [Id.]

17 [New Preclearance Act, Subsection 25(1).]

18 [New Preclearance Act, Subsection 25(2).]

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions