Order Fixing the Date on which the Preclearance Act, 2016 Comes into Force as the Day on which the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America Enters into Force: SI/2019-34
Canada Gazette, Part II, Volume 153, Number 12
SI/2019-34 June 12, 2019
PRECLEARANCE ACT, 2016
Order Fixing the Date on which the Preclearance Act, 2016 Comes into Force as the Day on which the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America Enters into Force
P.C. 2019-717 June 3, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 65 of the Preclearance Act, 2016, chapter 27 of the Statutes of Canada, 2017, fixes the date of entry into force of the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America as the day on which that Act comes into force.
(This note is not part of the Order.)
Pursuant to section 65 of the Preclearance Act, 2016, this Order fixes the date on which the Preclearance Act, 2016 (the Act) comes into force as the date on which the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (the LRMA) comes into force
To bring the Act into force which is necessary to implement the LRMA.
Preclearance refers to the practice whereby the officials of a destination country approve or deny the entry of travellers and goods into their country while located in a host country. U.S. preclearance operations have taken place in Canada since 1952, and are governed through the Preclearance Act and the Agreement on Air Transport Preclearance Between the Government of Canada and the Government of the United States of America (the Air Agreement). The United States currently conducts preclearance at airports in Vancouver, Calgary, Edmonton, Winnipeg, Toronto (Pearson), Ottawa, Montreal, and Halifax.
In 2011, Canada and the United States signed the Beyond the Border Action Plan which aimed to enhance the flows of travellers and cargo between the two countries. Under the Action Plan, the implementation of the Canada–United States Shared Vision for Perimeter Security and Economic Competitiveness called for a new multimodal preclearance agreement covering air, land, marine and rail transportation.
On March 16, 2015, Canada and the United States signed the LRMA; it specifies that it enters into force on the date of the last note in an exchange of notes in which Canada and the United States notify each other of the completion of their respective internal procedures necessary for the entry into force of the Agreement.
The Act was first introduced in the House of Commons on June 17, 2016, and received royal assent on December 12, 2017; it has four parts. Part 1 provides the rules that pertain to U.S. preclearance of travellers and goods destined for the United States This includes listing a U.S. preclearance officer’s authorities within a preclearance area, such as the conditions that apply to searching a traveller. Part 1 also lays out rules that apply to travellers such as requiring them to answer a preclearance officer’s questions truthfully, as well as their right to withdraw from preclearance.
Part 2 of the Act establishes the legal framework governing Canadian preclearance operations in the United States (the Air Agreement did not contemplate these activities; Canadian preclearance operations have not yet been established in the United States). It confirms that Canadian legislation related to the entry of persons or the importation of goods into Canada applies to travellers and goods in preclearance areas and perimeters located in the United States Part 2 also enables Canadian border officers to enforce relevant Canadian legislation at these locations and authorizes supporting regulations to be made for this purpose.
Part 3 amends the Criminal Code to clarify that it is not a crime for a U.S. preclearance officer to carry a firearm in Canada in the course of their preclearance duties. The Criminal Code is also amended to require the Attorney General of Canada to take steps to suspend legal action against a U.S. preclearance officer if the U.S. claims primary criminal jurisdiction under the LRMA. Part 3.1 provides for an independent review of the administration and operation of the Act. Part 4 repeals the Preclearance Act, and makes consequential changes to the Customs Act.
Canada and the United States have passed the required domestic legislation to bring the Act into force. In addition, Canada was required to put in place additional legal instruments not addressed by the Act, including regulations regarding: how detained or seized goods are disposed of, determining who is permitted to enter a preclearance area, determining what instructions airport employees and other non-travellers must comply with within a preclearance area, establishing a mechanism for travellers to submit comments on their interactions with preclearance officers and mandating a continuous police presence in a preclearance area. Canada was also required to complete an exemption order to the Firearms Act, which permits U.S. preclearance officers to carry firearms within Canada.
Once the Act is brought into force and the LRMA is ratified, existing preclearance sites will automatically transition to the new regime. With the endorsement of Canada and the United States, new sites will be able to establish preclearance operations if they deem it to be economically viable.
Current preclearance sites in Canada will be notified of the coming into force date of the Act, to ensure they have sufficient time to transition to the new regime.
To bring the LRMA into effect, several of its features must be authorized under Canadian legislation. Bringing the Act into force serves this purpose and is an essential step to meeting Canada’s obligations under the LRMA.
The Government of Canada conducted consultations with several stakeholders before and after the Act was tabled in Parliament. Meetings about the Act were held with airport authorities and airlines currently engaged in preclearance activities. Meetings on the Act were also held with facility and service operators that have expressed an interest in preclearance such as marine facilities in British Columbia with ferry services to the United States, Amtrak with respect to its services out of Montreal Central Station and Pacific Central Station (Vancouver), Rocky Mountaineer train service, Billy Bishop Toronto City Airport, and Jean Lesage International Airport. Provincial officials from Quebec and British Columbia were also consulted. These stakeholders supported expanding preclearance to new sites and to the land, rail and marine modes of transportation. The area of greatest concern for the above stakeholders were the timelines for bringing the Act into force and the associated costs for complying with legislative requirements under the framework.
The Government of Canada has also made several presentations about the Act at trade and transportation events such as those organized by the Pacific NorthWest Economic Region Foundation, the Council of the Great Lakes Region, Beyond Preclearance Coalition, and the Eastern Border Transportation Coalition. Stakeholders at these events emphasized the importance of expanding preclearance to the land, rail and marine modes of transportation and facilitating the preclearance of cargo.
During the Parliamentary process, the Act was referred to the Standing Committee on National Security and Public Safety and the Standing Senate Committee on National Security and Defence. During committee meetings several of the above-mentioned stakeholders provided testimony along with various other interested parties such as: the International Longshore and Warehouse Union (Canada); Canadian Muslim Lawyers Association; Customs and Immigration Union; Tourism Industry Association of Canada; International Civil Liberties Monitoring Group; and the Canadian Bar Association. Witnesses’ support for the Act was mixed.
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