LS-332E BILL S-22: PRECLEARANCE ACT
Prepared by: LEGISLATIVE HISTORY OF BILL S-22
TABLE OF CONTENTS A. Interpretation, Designation of Minister, Purpose of
the Bill, and B. Preclearance and Intransit Areas C. Powers of Preclearance Officers H. Civil Liability and Immunity BILL S-22: PRECLEARANCE ACT On 1 December 1998, Bill S-22, the Preclearance Act, was introduced in the Senate by the Hon. Sharon Carstairs, the Deputy Leader of the Government in the Senate. The bill would provide U.S. Federal Inspection Services with the appropriate statutory authority to determine, at designated airport areas in Canada, what people and what goods would be allowed entry into the United States. Canada has allowed U.S. Federal Inspection Services to operate air passenger preclearance in Canada since the 1950s. "Preclearance" is the processing by U.S. federal inspection agencies of travellers and goods that are beginning their journey in Canada and seeking entry into the United States. These arrangements were formalized by the 1974 Air Transport Preclearance Agreement between Canada and the United States of America. Under that agreement, air preclearance services now clear some 8.5 million passengers at the following Canadian airports: Vancouver, Edmonton, Calgary, Winnipeg, Toronto, Ottawa, and Montreal (Dorval). Since that agreement was signed, however, changes have been made to Canada’s law; the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982 and consequently part of the Constitution of Canada) has granted Canadians new individual rights. At the same time, border processing has evolved as a result of the rapid increase in border crossings and the adoption of new technology. The statutory authority that would be provided in Bill S-22 and amendments to the 1974 agreement would ensure appropriate legal authorities for the new situation at the border and would also protect travellers’ rights under Canadian law. U.S. Federal Inspection Services would be able to examine and seize goods and to administer certain monetary penalties under American border-control statutes. The U.S. laws could be administered only in designated preclearance areas and would be subject to the Canadian Charter of Rights and Freedoms and relevant Canadian laws. No provision of American law that would be considered criminal under Canadian law could be applied in Canada; criminal matters would be dealt with by Canadian authorities under Canadian law. Currently, international passengers en route to the United States through a Canadian airport with preclearance facilities must pass through Canadian Customs and Immigration before seeing a U.S. preclearance officer. The proposed intransit preclearance at Canadian airports with approved facilities would allow third-country passengers to proceed directly to U.S. preclearance, thereby reducing two inspections to one. Intransit preclearance services have been provided at the Vancouver International Airport on a pilot basis since June 1997. In addition, if intransit preclearance facilities were being used, air transportation companies would, prior to arrival in Canada, be required to provide preclearance officers with specified information about passengers passing through this country to the United States. It is understood that the arrangements provided for in the bill would be reciprocated by similar arrangements for Canadian preclearance in the United States under U.S. customs and immigration laws. A. Interpretation, Designation of Minister, Purpose
of the Bill, and Clause 2 contains relevant definitions for purposes of the bill. A "Canadian officer" would be defined as meaning a peace officer or a person authorized to enforce an Act of Parliament. "Goods" would include means of transport, animals and plants and their products, and any documents in any form, but would not include anything excluded by regulation made pursuant to clause 38(1)(a). The "Minister" would be defined to mean, in respect of any provision of the bill, the member(s) of the federal Cabinet designated under clause 3 as the Minister(s) for purposes of that provision. A "preclearance area" would mean an area designated by the Minister under clause 7. "Preclearance laws" would mean U.S. laws with respect to customs, immigration, public health, food inspection, and plant and animal health that are applicable to the admission of travellers or the importation of goods to the United States, including the laws listed in the schedule to the bill; monetary penalty provisions in such laws would be included, but anything that would be considered criminal under Canadian law would not be. A "preclearance officer" would be defined as 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. The Governor in Council could, by order, designate any member(s) of the federal Cabinet as the Minister(s) for the purpose of any provision of the bill (clause 3). According to clause 4, the purpose of the bill would be 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. The Governor in Council could, on the recommendation of the Minister, by order, restrict any immunity or privileges under the bill that it deemed to exceed those accorded to Canada by the United States (clause 5). Preclearance laws could be administered in Canada in a preclearance area with respect to travellers who sought admission to the United States, and with respect to goods that were to be imported into that country, subject to the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act (clause 6(1)). No U.S. monetary penalties could be imposed in Canada when proceedings were instituted in this country with respect to an act or omission that had taken place in a preclearance area and that constituted an offence under Canadian law punishable by indictment or on summary conviction (clause 6(2)). Nothing in the bill would preclude a Canadian officer from enforcing Canadian law in a preclearance area (clause 6(3)). B. Preclearance and Intransit Areas The Minister would be empowered to designate preclearance areas where preclearance officers could process travellers and goods for entry into the United States (clause 7(1)). All or part of a preclearance area could be designated in this way as an intransit area for the preclearance of travellers and goods passing through Canada by air on the way to the United States (clause 7(2)). The Minister could at any time amend, cancel or reinstate at any time a designation made under this provision (clause 7(3)). Only persons who were travellers destined for the United States or a person or category of persons designated by regulation could enter a preclearance area (clause 8(1)). On doing so, a traveller would have to report to a preclearance officer without delay (clause 8(2)). In its submission to the Standing Senate Committee on Foreign Affairs examining the bill, the Canadian Bar Association recommended that clause 8 be amended to allow legal counsel access to the preclearance area, in order to comply with Charter provisions allowing a person who is detained to retain and instruct counsel without delay. Foreign Affairs officials subsequently informed the Committee that a regulation would be drafted pursuant to clause 8(1) to ensure that in the case of a detention or strip search legal counsel would be allowed access to the preclearance area in order to meet with a client. On arrival in Canada, a traveller passing through this country on the way to the United States through an intransit area would have to report without delay to a preclearance officer there (clause 9). According to clause 10(1), every traveller would have the right, at any stage of the preclearance process, to leave a preclearance area without departing for the United States, unless he or she was suspected on reasonable grounds of having committed an offence under clause 33 (false or deceptive statement) or 34 (obstruction of officer) and had been so informed by the preclearance officer. Every traveller, whether travelling from Canada or in transit through Canada, who left an intransit area without departing immediately for the United States, would have to report without delay to a customs officer and an immigration officer for examination (clause 10(2)). C. Powers of Preclearance Officers Only in a preclearance area could a preclearance officer exercise the powers and duties conferred under the bill and regulations (clause 11(1)). Outside a preclearance area, the officer could examine a means of transport that was subject to preclearance, including goods, currency and monetary instruments that were in, or that were to be loaded onto, that means of transport (clause 11(2)). After that examination, the preclearance officer could request that a traveller, or anything that was in or that was to be loaded onto the means of transport, be sent to a preclearance area to be dealt with in accordance with the bill (clause 11(3)). A traveller who refused to go to a preclearance area could be taken there by a Canadian officer at the request of the preclearance officer (clause 11(4)). A preclearance officer who acted on reasonable grounds would be justified in doing whatever he or she was required or authorized to do under the bill or the regulations, and in using such force as was necessary for that purpose (clause 12(1)). Force intended or likely to cause death or grievous bodily harm could not be used unless the officer believed on reasonable grounds that it was necessary for self-preservation or to save anyone under the officer’s protection from death or grievous bodily harm (clause 12(2)). A preclearance officer could request a Canadian officer to assist in exercising the conferred powers of search, examination, seizure and detention and the Canadian officer would be authorized to do so (clause 13). A preclearance officer could order anyone found in a preclearance area to report to the officer or to leave the area (clause 14). Travellers would have to report all goods in their possession or that formed part of their baggage or that were on board a means of transport under their charge (clause 15(1)). Travellers would also have to present on request any of their goods and remove any covering from them, unload any means of transport or open any part of it, or open or unpack any package or container for examination (clause 15(2)). Under the original form of clause 16, travellers would have been required to answer truthfully any question asked by the preclearance officer for preclearance purposes and could otherwise have been ordered to leave the preclearance area. The Standing Senate Committee on Foreign Affairs amended clause 16, however, to make it clear that the traveller would have a choice as to whether to answer such questions. If the traveller chose to answer, he or she would be required to answer truthfully (clause 16(1)) but if the traveller refused to answer, he or she could be ordered by the preclearance officer to leave the preclearance area (clause 16(2)). The bill would also now stipulate in clause 16(3) that the refusal by a traveller to answer a preclearance officer would not in and of itself constitute reasonable grounds for the officer to suspect that a search of the traveller was necessary for the purposes of the bill or that an offence had been committed under clause 33 (false or deceptive statement) or 34 (obstruction of officer). Under clause 17, a Canadian officer could, at the request of a preclearance officer, remove from a preclearance area any person who refused to obey an order described in clauses 14 or 16(2). A preclearance officer who was not satisfied that travellers or persons in control of goods could be admitted, or that their goods could be imported, to the United States in accordance with preclearance laws, could refuse preclearance (clause 18). For the purposes of clauses 20 to 23, a "frisk search" would mean a search by manual or technical means of a person’s clothed body while a "strip search" would mean a visual inspection of a person’s naked body (clause 19). Clause 20 would entitle a preclearance officer to conduct a frisk search of any person whom he or she suspected on reasonable grounds of carrying anything that could present a danger to human life or safety. Under clause 21, a preclearance officer could conduct a frisk search of a traveller whom the officer suspected on reasonable grounds of carrying anything that would afford evidence of a contravention of clause 33 (false or deceptive statement). Any person could be detained where the preclearance officer suspected on reasonable grounds that a strip search was necessary for the purposes of clause 20 or 21; in that case, the officer would without delay have to ask a Canadian officer to conduct the search (clause 22(1)). This could subsequently be done if the Canadian officer suspected on reasonable grounds that it was necessary for the purpose of those clauses. The preclearance officer could be present for the search (clause 22(2)). Prior to conducting a search described in clause 21 or 22, a preclearance officer or a Canadian officer would have to inform the traveller of his or her right to be taken before a senior officer and, if the traveller so requested, would have to take the traveller before that officer (clause 23(1)). The senior officer could direct the traveller to be searched only if the officer suspected on reasonable grounds that the search was necessary for clause 21 or 22 (clause 23(2)). A preclearance officer or Canadian officer could not perform a search of a person of the opposite sex under clause 21 or 22 but if no officer of the same sex were available, could authorize any suitable person of the same sex to do so (clause 23(3)). A preclearance officer could not observe a strip search under clause 22 of a person of the opposite sex but if no officer of the same sex were available, could authorize any suitable person of the same sex to do so (clause 23(4)). A preclearance officer could detain any traveller whom the officer believed on reasonable grounds to have contravened clause 33 (false or deceptive statement) or to have committed an offence under an Act of Parliament punishable by indictment or on summary conviction (clause 24(1)). The preclearance officer would be obligated to deliver any traveller so detained as soon as possible into the custody of a peace officer (as defined in paragraph (c) in section 2 of the Criminal Code (clause 24(2))). A preclearance officer would be authorized to examine any goods submitted for preclearance, and could open, or cause to be opened, any package or container and take samples of the goods in reasonable amounts (clause 25(1)). He or she could also examine any currency and monetary instruments found in a preclearance area (clause 25(2)). Any goods submitted for preclearance, could be detained by the preclearance officer until the latter was satisfied that these had been dealt with in accordance with the bill, the regulations and preclearance laws (clause 26(1)(a)). In addition, a preclearance officer could detain anything designated by regulations under clause 38(1)(d) but would have to transfer it to a Canadian officer without delay (clause 26(1)(b)). A preclearance officer would have to detain anything whose possession, import, export or handling the officer believed on reasonable grounds to be an offence punishable by indictment or on summary conviction under Canadian law. The officer would also have to detain anything he or she believed on reasonable grounds would afford evidence of such an offence. Anything detained in this way without delay would have to be transferred to a Canadian officer authorized to receive it (clause 26(2)). Where a preclearance officer believed on reasonable grounds that any goods submitted for preclearance related to a false or deceptive statement made in contravention of clause 33 (clause 27(1)), he or she could seize the goods. As well, a preclearance officer who believed that there had been a contravention of clause 33 (false or deceptive statement) could seize any goods that he or she believed on reasonable grounds would afford evidence of the contravention (clause 27(2)). Subject to clause 26(2), goods lawfully seized by a preclearance officer under the bill would be subject to forfeiture procedures under preclearance laws (clause 28). For the purposes of clauses 30 to 32, "specified passenger information" would mean information prescribed by regulations under clause 38(1)(c) about any person who was travelling by aircraft to the United States and whose travel route provided for arrival in Canada in an intransit area (clause 29). Clause 38(1)(c) would empower the Governor in Council to make regulations prescribing specified passenger information, the manner of providing it, and the purpose for which, and how, a preclearance officer could use and communicate it. A transportation company operating an aircraft carrying passengers as described in clause 29 would be required, prior to arrival of the aircraft in Canada, to provide a preclearance officer with specified passenger information (clause 30(1)). Otherwise, the preclearance officer could refuse to preclear the passengers or their goods in an intransit area (clause 30(2)). A preclearance officer could use specified passenger information for the purposes of discharging his or her duties under the bill and preclearance laws and could: a) examine the information for travel methods, behaviours or patterns in order to apply the appropriate preclearance measures in respect of passengers and their goods; and b) search and match data in the information with other data (clause 31(1)). A preclearance officer could disclose any specified passenger information, and any of his or her findings with respect to the information, to a Canadian officer, to the extent that the latter required this for the performance of his or her duties and was authorized by law to receive it (clause 31(2)). Specified passenger information could be used by a preclearance officer only in the administration and enforcement of the bill and U.S. preclearance laws and would have to be destroyed within 24 hours of being obtained, unless it was reasonably required for the administration and enforcement of Canadian laws or U.S. preclearance laws (clause 32(1)). A preclearance officer would be required to take reasonable measures to protect specified passenger information under his or her control from unauthorized use and disclosure (clause 32(2)). Under the original form of clause 33, every person who made, participated in or assented to the making of a false or deceptive oral or written statement to a preclearance officer with respect to the preclearance of travellers or goods for entry into the United States would have been guilty of either: a) an indictable offence and liable to imprisonment for a term of not more than two years; or b) an offence punishable on summary conviction. However, the Standing Senate Committee on Foreign Affairs replaced the previous clause 33 with a new provision (clause 33(1)). This stipulated that a person would be guilty of an offence punishable on summary conviction and liable to a fine of $5,000 who, knowing it to be false or deceptive or to contain information that was false or deceptive, made an oral or written statement to a preclearance officer with respect to the preclearance of the person or any goods for entry into the United States. Thus the offence would now require proof of intent on the part of the traveller. Furthermore, notwithstanding section 787(2) of the Criminal Code (concerning imprisonment in default of payment of a fine where not otherwise specified), a term of imprisonment could not be the penalty for default of a payment of a fine imposed under clause 33(1) of the bill (clause 33(2)). Nor, according to clause 33(3), would an offence under clause 33(1) constitute an offence for the purposes of the Criminal Records Act. Every person who resisted or wilfully obstructed a preclearance officer or a Canadian officer in the execution of their duty or so obstructed any person lawfully acting in aid of such an officer would be guilty of either: a) an indictable offence and liable to imprisonment for a term of not more than two years; or b) an offence punishable on summary conviction (clause 34). Every person who failed to comply with the provisions of clause 32 would be guilty of a summary conviction offence and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than 12 months, or to both (clause 35). H. Civil Liability and Immunity An action or other proceeding of a civil nature, where the United States was not immune from the jurisdiction of a court in Canada under the State Immunity Act, could be brought against the United States in respect of anything that was, or was purported to be done or omitted by a preclearance officer within the scope of his or her duties (clause 36(1)). No action or other proceeding of a civil nature could be brought against a preclearance officer in respect of anything that he or she had done or not done under the bill or the regulations (clause 36(2)). For greater certainty, a preclearance officer would not be a servant of the Crown for the purposes of the Crown Liability and Proceedings Act (clause 36(3)). For the purposes of clause 36, the term "preclearance officer" would include any person who assisted a preclearance officer at the officer’s request, but would not include a Canadian officer (clause 36(4)). No decision of a preclearance officer to refuse preclearance, or to refuse the admission of persons or the importation of goods to the United States, would be subject to judicial review in Canada (clause 37). The Governor in Council would be empowered to make regulations for carrying out the purposes and provisions of the bill, including regulations: a) excluding anything from the definition of "goods" in section 2; b) designating the persons or categories of persons who could enter a preclearance area; c) prescribing specified passenger information, the manner of providing it, and the purpose for which and how a preclearance officer could use and communicate that information; d) designating anything whose possession, import, export or handling was prohibited, controlled or regulated by or under the bill or any other Act of Parliament; e) providing for how goods that were detained, seized or forfeited could be disposed of, and f) prescribing anything that by the bill was to be prescribed (clause 38(1)). The Minister could, by order, amend the schedule to the bill by adding or deleting any law of the United States with respect to customs, immigration, public health, food inspection and plant and animal health that was applicable to the admission of travellers or the importation of goods to the United States (clause 38(2)). The Senate added a new clause 39 to the bill during its deliberations at report stage. Under this clause, the Minister would be required to have an independent review of the Act and its administration and operation conducted five years after the bill came into force. The Minister would also be required to table a report on that review in both the Senate and the House of Commons on any of the first 15 sitting days of each chamber after the review was completed. The bill or any of its provisions would come into force on a day or days to be fixed by order of the Governor in Council (clause 40). In its submission to the Standing Senate Committee on Foreign Affairs which examined Bill S-22, the Canadian Bar Association (C.B.A.) pointed out a number of serious concerns about the bill. The organization stated that it believed the bill "would result in the serious abrogation of the rights of travellers on Canadian soil and a considerable intrusion upon Canadian sovereignty…. While there are doubtless economic benefits to permitting preclearance on Canadian soil, we believe these can be achieved in a manner which is considerably less intrusive than what has been proposed in Bill S-22." Following the appearance of C.B.A. officials before the Senate Committee, there were consultations between the government and the C.B.A. As a result, the government introduced a number of amendments that addressed some of the central concerns of the C.B.A. and provided clarity in clauses 16 and 33 of the bill. The amendments were adopted by the Senate Committee. | ||||||||||||||||||||||||||||||||||