On June 17, 2016, the Minister of Public Safety and Emergency Preparedness introduced Bill C-23 “an Act respecting the preclearance of persons and goods in Canada and the United States” (to be known as the “Preclearance Act 2016″) in the House of Commons. This proposed legislation does not impose obligations in the United States and is not contrary to the sovereignty of the United States despite the name of the bill. The Government of Canada issued a limited information News Release and a Backgrounder.
Bill C-23 is intended to implement the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America signed on March 16, 2015 (the “Agreement”). A treaty, such as the Agreement, is not enforceable in Canadian law until implementing legislation is passed. Bill C-23 is the implementing legislation for the Agreement.
This Agreement is a component of the Beyond the Border Action Plan that was announced in February 2011. The Agreement was previously tabled in the House of Commons on April 22, 2015 by the Harper Government. So, this is not a new initiative and it should pass Canada’s legislative process.
The main purpose of the Agreement and Bill C-23 is to facilitate and expedite travel between Canada and the United States for goods and services. Canada and the United States have one of the most important trading relationships in the World. As a result, mechanisms such as preclearance, make a lot of common sense.
Part 1 of Bill C-23 addresses the performance of U.S. preclearance officers in Canada. Part 1 of Bill C-23 authorizes United States customs officers to conduct preclearance in Canada of travellers and goods bound for the United States. Bill C-23 also authorizes a federal Minister to designate preclearance areas and preclearance perimeters in Canada, in which preclearance may take place. Bill C-23 gives United States preclearance officers powers to facilitate preclearance.
The exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act. Canadian police officers and the officers of the Canada Border Services Agency are authorized to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions. Bill C-23 allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained under Part 1. Bill C-23 limits the ability to request the extradition or provisional arrest of a current or former United States preclearance officer.
Part 2 of Bill C-23 addresses the performance of Canadian preclearance officers in the United States. Bill C-23 specifies how the Immigration and Refugee Protection Act will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters. Bill C-23 allows a traveller bound for Canada to withdraw from the preclearance process, unless the traveller is detained.
Part 3 of Bill C-23 contains amendments to the Criminal Code.
Part 4 of Bill C-23 amends the Customs Act.
Preclearance allows the inspection of goods and people before they leave the country of exit. A preclearance inspection at a point of embarkment is essentially the same inspection an individual would undergo at a U.S. port of entry (or at a point of disembarkment) and preclearance travellers do not have to undergo a second U.S. Customs and Border Protection inspection upon arrival in the United States. Preclearance of goods occurs away from the border prior to the export from Canada and is also the same inspection goods would undergo at a U.S. port of entry and precleared goods do not have to undergo a second U.S. Customs and Border Protection inspection upon arrival in the United States.
Many travellers from Canada are familiar with preclearance at airports, such as Toronto Pearson International Airport, Calgary Airport, Montreal Trudeau Airport, Vancouver Airport, etc. At previously approved preclearance airports, all travelers go through U.S. Customs Preclearance before boarding flights destined for a location in the U.S. Inadmissible travelers are not permitted to board their planes and do not enter the United States. High risk passengers are screened before being allowed to proceed. Goods are also x-rayed to identify risks.
This preclearance will be expanded to other airports and land/rail/marine locations. For example, preclearance will be available at a number of new Canadian locations, including Quebec’s Jean Lesage International Airport, Toronto’s Billy Bishop City Airport, Montreal Central Station and the Rocky Mountaineer.
Preclearance is good for Canada and Canadian businesses. Previously, Canada and the United States have worked at establishing a security perimeter around North America (or, at least, Canada and the United States). The next step is to somewhat erase the border between Canada and the United States for the movement of goods and people – it can never be fully erased. The next step in the process will be to further harmonize laws and regulations and policies to eliminate (or reduce) bottlenecks at the border in order to expedite the movement of low risk goods and people. But, I digress beyond Bill C-23 to paint the picture on where we need to go from here.