The US Department of Homeland Security made an announcement on August 15th, 2019 stating that the USA and Canada had implemented the Agreement on Land, Rail, Marine, and Air Transport Preclearance.
The Preclearance Agreement was signed by the US Secretary of Homeland Security and the Canadian Minister of Public Safety and Emergency Preparedness back in March 2015, which was part of the Beyond the Border Action Plan.
The Preclearance Act 2016 was also enacted by the Government of Canada and it received Royal Assent in December 2017. It is a replacement for the Preclearance Act 1999. But its implementation was delayed until the regulations were published, and the regulations were finally published in June 2019. The Preclearance Agreement was then formally implemented on August 15th, 2019.
The New Preclearance Act gives more powers to United States Customs and Border Protection (USCBP) officers who are working at preclearance areas in Canada.
USCBP officers working at the border have authority to question and detain travellers while on US soil, but when they are conducting preclearance on Canadian soil, they do not have the same powers. The New Preclearance Act changes this.
Canadian Law Violations
The New Preclearance Act states that US Preclearance Officers must act within Canadian law. But it is unlikely that Charter rights could be enforced against them.
The act clarifies that no action can be brought against officers in relation to anything that they do when exercising their powers or performing their duties, and action must be brought against the US directly.
However, there are situations where the Charter may be violated but no action could be taken, such as discriminating against a traveler.
Permission to Carry Firearms
The Old Preclearance Act stated that no firearms could be carried on Canadian soil by US Preclearance Officers. However, this has now been amended and US Preclearance Officers can now possess them to carry out their duties.
Use of Force Permitted
The New Preclearance Act states that officers can use force and they are justified to do so to carry out their duties, but they must have reasonable grounds to believe that the use of force is necessary. This could, however, lead to the temporary detention of travelers.
Power to Question Travelers
The New Preclearance Act states that US Preclearance Officers have the power to question travelers heading into the United States. But there is no requirement that the questions they ask are reasonable or relevant to whether they are admissible.
Travelers now have an obligation to answer any questions truthfully, unless they withdraw their application, even if the question is inappropriate. This is a change from the Old Preclearance Act, when travelers only had to answer truthfully when they chose to voluntarily answer the question. So, they could be asked about personal issues or religion, and they have to answer truthfully.
Making a false statement to a US Preclearance Officer is also made into a criminal offense, and the traveler will be guilty of a summary conviction offense with a maximum fine of $5,000. So, it could lead to criminal prosecution in Canada.
And failing to answer a question could result in being charged with resisting a US Preclearance Officer or willfully obstructing them, which can lead to up to two years in prison. Before, the refusal to answer a question alone was not sufficient to support this charge.
Power to Examine and Detain Goods
US Preclearance Officers will now have a broad general power to search, examine and detain goods. This could narrow the privacy rights of Canadians.
Currently, offices can demand passwords for a smartphone or laptop for examination. The CBSA has a similar position for travelers who are arriving in Canada.
Now, any traveler who does not provide a password could be charged by obstructing the US Preclearance Officers, which can lead to a prison term of up to two years.
Withdrawal of Applications
Previously, travelers going to the United States were able to withdraw an application and leave the preclearance area. They could only be detained to be turned over to a police officer if the US Preclearance Officers suspected they had committed a crime.
So, when a traveler was asked a question, they thought was inappropriate, they could refuse to answer and withdraw their application.
Now, in the New Preclearance Act, travelers can still withdraw from preclearance and leave the area, but they still have the obligation to answer questions truthfully put to them by US Preclearance Officers in relation to determine their reason for withdrawing. And they must comply with other directions given by US Preclearance Officers.
A traveler who has withdrawn his or her application could be detained until they provide an answer for why they have withdrawn it.
Power to Carry Out Strip Searches
The New Preclearance Act gives officers the power to carry out strip searches under some circumstances. If they have reasonable grounds to believe that travelers have concealed goods, they should request for a CBSA officer to perform the search. But they also have the right to perform the search under certain circumstances.
Benefits for Canada, But Questions Remain
The New Preclearance Act is an important part of the Preclearance Agreement that will allow US preclearance operations to expand to Canadian airports like Billy Bishop Airport, as well as to other types of travel, and this is positive for Canada. But whether people who are traveling to the United States will be adversely affected is something that may concern travellers.
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