Preclearance Act, 2016 (S.C. 2017, c. 27)

Withdrawal

Marginal note:Traveller may withdraw from preclearance

• 54 (1) Despite any preclearance legislation and the Immigration and Refugee Protection Act, every traveller bound for Canada, unless they are detained, may withdraw from preclearance and may leave a preclearance area or preclearance perimeter without departing for Canada.

• Marginal note:For greater certainty

  (2) For greater certainty, despite any obligation that would otherwise apply under section 47, under the Immigration and Refugee Protection Act or under the regulations, a traveller who withdraws from preclearance is not required to answer any question asked of them for the purpose of conducting preclearance.

Marginal note:Traveller’s obligations

55 Subject to the laws of the United States, a traveller who withdraws from preclearance must

• (a) answer truthfully any question asked by a border services officer for the purpose of identifying the traveller or of determining their reason for withdrawing; and

• (b) comply with any other direction made by a border services officer that such an officer is authorized to make under the laws of the United States when a traveller withdraws.

Marginal note:Powers, duties and functions on withdrawal

56 After a traveller has indicated that he or she is withdrawing from preclearance, a border services officer or other public officer is not permitted to exercise any powers, or perform any duties or functions, other than those authorized under the laws of the United States when a traveller withdraws.

Regulations

Marginal note:Governor in Council

• 57 (1) The Governor in Council may make regulations

  • (a) adapting, for the purpose of applying it in a preclearance area or preclearance perimeter,

    • (i) any preclearance legislation described in paragraph (a) of the definition of that expression in section 46, or

    • (ii) any provision of the Immigration and Refugee Protection Act or of regulations made under that Act; and

  • (b) restricting or excluding the application of any such preclearance legislation or provision in a preclearance area or preclearance perimeter.

• Marginal note:Different treatment

  (2) The regulations made under subsection (1) may distinguish between individual preclearance areas or individual preclearance perimeters and between classes of such areas or perimeters.

Offences — Acts or Omissions in Preclearance Area or Preclearance Perimeter

Marginal note:Deemed commission in Canada

• 58 (1) A person is deemed to have committed an act or omission in Canada if the act or omission is committed in a preclearance area or preclearance perimeter and, had it been committed in Canada, would constitute

  • (a) an offence, under any Act of Parliament other than the Immigration and Refugee Protection Act, that relates to the entry of persons or importation of goods into Canada; or

  • (b) a conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, such an offence.

• Marginal note:Element of offence — entry or importation

  (2) For the purpose of determining whether an act or omission would constitute an offence referred to in paragraph (1)(a) or (b),

  • (a) if an element of the offence is the entry of a person into Canada, a person who is a traveller bound for Canada and who enters a preclearance area or preclearance perimeter is considered to have entered Canada; and

  • (b) if an element of the offence is the importation of goods into Canada, goods that are bound for Canada and that are brought into a preclearance area or preclearance perimeter are considered to have been imported into Canada.

• Marginal note:Jurisdiction

  (3) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1), proceedings for an offence in respect of that act or omission may be commenced in any territorial division in Canada. The person may be tried and punished for that offence as if the offence had been committed in that territorial division.

• Marginal note:Previously tried in the United States

  (4) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1) and they have been tried and dealt with in the United States for an offence in respect of the act or omission so that, if they had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, they are deemed to have been so tried and dealt with in Canada.

• Marginal note:For greater certainty

  (5) For greater certainty, sections 135 and 136 of the Immigration and Refugee Protection Act apply with respect to an act or omission committed in a preclearance area or preclearance perimeter.

Jurisdiction — Offence by Canadian Officer

Marginal note:Primary criminal jurisdiction

• 59 (1) The Attorney General of Canada is responsible for advising the Minister with respect to the exercise or waiver of primary criminal jurisdiction under Article X of the Agreement in relation to an act or omission committed in the United States by a border services officer or other public officer in the exercise of their powers, and performance of their duties and functions, under this Part.

• Marginal note:Additional factors

  (2) The Attorney General of Canada may, in providing advice with respect to the waiver of primary criminal jurisdiction under paragraphs 15 and 16 of Article X of the Agreement, consider the following factors in addition to those set out in that paragraph 16:

  • (a) the severity of the sentence a border services officer or other public officer accused of an offence is likely, if convicted, to receive in Canada as compared to the United States;

  • (b) the impact with respect to evidence if proceedings are held in Canada as compared to the United States;

  • (c) the impact on witnesses if proceedings are held in Canada as compared to the United States;

  • (d) the jurisdiction that has the greater interest in prosecuting the border services officer or other public officer for the act or omission in question; and

  • (e) any other factor that the Attorney General considers relevant.

Marginal note:Exclusive authority

60 The Attorney General of Canada has exclusive authority to commence and conduct a prosecution or other criminal proceedings with respect to an act or omission committed in the United States by a border services officer or other public officer in the exercise of their powers, and performance of their duties and functions, under this Part, and for that purpose the Attorney General of Canada may exercise any of the powers, or perform any of the duties and functions, assigned under the Criminal Code to an Attorney General.

Part 3R.S., c. C-46Related Amendments to the Criminal Code

61 The Criminal Code is amended by adding the following after section 117.07:

62 The Act is amended by adding the following after section 579:

Part 3.1Independent Review

Marginal note:Review and report

62.1 Five years after this Act comes into force, the Minister must cause to be conducted an independent review of this Act, and its administration and operation, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.

Part 4Consequential Amendment, Repeal and Coming into Force

R.S., c. 1 (2nd Supp.)Consequential Amendment to the Customs Act

63 Subsection 107(5) of the Customs Act is amended by adding the following after paragraph (l.2):

Repeal

Marginal note:Repeal

64 The Preclearance Act, chapter 20 of the Statutes of Canada, 1999, is repealed.

Coming into Force

Marginal note:Order in council

65 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.