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.

For more information, please contact Henry J. Chang.

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).]↩