The Honourable Lawrence Cannon, Minister of Foreign Affairs, and the Honourable John Baird, Minister of Transport, Infrastructure and Communities, have announced that the Government of Canada has engaged InterVISTAS Consulting Inc. to conduct an independent review of the Preclearance Act. The Ministers’ press release is available in the Media Room at Foreign Affairs and International Trade Canada (DFAIT). The independent review includes an assessment of the operation, administration and organization of United States preclearance at Canadian airports, consultations with stakeholders and any recommendations that the consultant may wish to make specifically on the Preclearance Act and its four regulations as well as on airport preclearance in general. The purpose of this Information Document is to provide guidance to the consultant and stakeholders on the review of the Preclearance Act and to provide an opportunity for stakeholders and members of the travelling public to submit their views.
You should submit your views directly to the consultant. Please note that the consultant will share your views with federal government officials, but you may ask for your name to be withheld. Views should be submitted by March 26, 2009.
Your views may be submitted....
Preclearance Act Review
InterVISTAS Consulting Inc.
1200 West 73rd Avenue
Paragraph 39 of the Preclearance Act (1999, c.20) reads as follows:
“Five years after this Act comes into force, the Minister shall cause an independent review of the Act and its administration and operation to be conducted, and shall cause a report on the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the review is completed.”
In accordance with Order-In-Council P.C. 2001-2350, the Minister of Foreign Affairs is the Minister responsible for the Preclearance Act, except for Section 7 of the Act (on the designation of preclearance areas), which is the responsibility of the Minister of Transport, Infrastructure and Communities in consultation with the Minister of Foreign Affairs.
Although most sections of the Preclearance Act entered into force on May 1, 2002* , they had no practical effect until the Agreement between the Government of Canada and the Government of the United States on Air Transport Preclearance (“the Preclearance Agreement”) entered into force on May 2, 2003. Accordingly, the Review will consider experience with the Preclearance Act and its four regulations in the five years since May 2, 2003 in the context of the Preclearance Agreement.
The review will assess to what extent the objectives of the Preclearance Act have been fulfilled, including through the Preclearance Agreement. It will consider the impact the evolving economic, security, regulatory, legislative, airport and airline environment on the administration and operation of the Preclearance Act since May 2, 2003.
The review will include direct consultations with relevant airport and airline stakeholders, site visits to Canadian preclearance airports, and a mail address and an Internet address established by the consultants to allow stakeholders to submit written views. The consultant will provide Canadian Government officials with copies of written views that it has received but will provide a mechanism to allow stakeholders to withhold their identities from Canadian Government officials should they prefer. Specific information on how to submit views to the consultant is presented above.
For copies of the Preclearance Act and its four regulations, go to Department of Justice Canada.
The four regulations under the Preclearance Act are:
* Section 37 of the Act is a privative clause that would seek to prevent judicial review in Canada of any decision by a preclearance officer to refuse preclearance, or to refuse the admission of persons or the importation of goods to the United States. However, as the United States was unable to provide reciprocity in this regard, Canada did not bring Section 37 into force when it brought the Act into force.
For a copy of the Preclearance Agreement, go to Canada Treaty Information
Preclearance allows travellers to be inspected by United States officers, known as preclearance officers, before they depart Canada for United States destinations. This facilitates air travel from Canada to the United States. The Preclearance Act gives United States preclearance officers at designated sites in Canada the authority to decide what people and goods are allowed to enter the United States. More specifically, the full title of the Preclearance Act is:
“An Act authorizing the United States to preclear travellers and goods in Canada for entry into the United States for the purposes of United States customs, immigration, public health, food inspection and plant and animal health.”
The preamble of the Preclearance Act includes “Whereas ... it has become desirable to put in place statutory authority, on a reciprocal basis in both Canada and the United States, to facilitate the movement of travellers and goods across the border between the two countries by all means of transportation.” However, to date the Preclearance Act has only been applied at preclearance airports in Canada and includes goods only to extent that they are accompanying baggage of travellers. As well, while the Preclearance Act is based on the principle of reciprocity, and the Preclearance Agreement is fully reciprocal, Canada has not chosen to conduct preclearance in the United States.
Preclearance is a great convenience to the travelling public. It allows travellers to be cleared for entry into the United States before departing from a Canadian preclearance airport. Once cleared at a Canadian airport, transborder flights are treated on arrival in the United States as if they were United States domestic flights. This enables precleared flights to use domestic terminals in the United States. This makes it more likely that passengers will not have to change terminals in the United States when taking connecting flights to other United States destinations. As a result, passengers enjoy shorter connecting times in the United States for flights to other United States airports.
Another benefit of preclearance is that it allows for transborder flights to United States airports that do not have customs and immigration inspection facilities, such as flights to LaGuardia in New York City.
There are also clear security and immigration processing advantages for the United States which is able to screen passengers for customs and immigration purposes before they arrive in the United States. Preclearance also reduces the demand for customs and immigration services at busy airports in the United States and helps reduce congestion at those airports.
Canadians have enjoyed preclearance since 1952 when it first began at the airport at Toronto. These operations were not performed pursuant to any Canadian legislation or formal agreement with the United States, but rather reflected ad hoc arrangements.
In 1974 Canada and the United States reached their first Air Transport Preclearance Agreement. That agreement established certain standards for the operation of preclearance and for preclearance facilities. However, United States preclearance officers had authority only to deny entry into the United States by passengers and/or their goods. Furthermore, there was not a strong basis in Canadian law for preclearance operations in Canadian airports.
Since that 1974 Agreement was reached, there were a number of changes that led to the introduction of the Preclearance Act before the Senate in 1998 and the signing in 2001 of a new Canada-United States Agreement on Air Transport Preclearance. In 1982, Canada’s Charter of Rights and Freedoms granted Canadians new individual rights while border inspection had evolved to accommodate the rapid increase in border crossings and technology. In addition, in 1995, Canada and the United States reached a new Agreement on Air Transport that greatly liberalized transborder air services, which needed to be facilitated by a modern airport preclearance program.
The Preclearance Act provides United States preclearance officers with limited Canadian authorities to inspect United States-bound travellers in Canada while ensuring that travellers’ rights and Canadian sovereignty are fully respected. Specifically, the United States laws that preclearance officers may administer in Canada are limited to the following preclearance laws, as listed in the Schedule to the Preclearance Act:
The Preclearance Act provides that preclearance officers may administer United States preclearance laws only in designated preclearance areas in Canadian airports. These activities are subject to all Canadian laws including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act. No provision of United States law pertaining to criminality under Canadian law may be administered in Canada. Criminal matters must be dealt with by Canadian officers under Canadian law. Airports are responsible for the security of preclearance areas, including arranging for the presence of armed Canadian law enforcement officers, in accordance with Annex II of the Preclearance Agreement, to maintain Canadian law.
The Preclearance Act also authorizes United States preclearance officers to conduct searches of persons and to detain them for transfer to a Canadian officer. Preclearance officers have the right to detain travellers but do not have power to arrest, which can only be done by a Canadian officer. Preclearance officers may conduct frisk or pat down searches but strip searches must be performed only by Canadian officers. United States preclearance officers may also examine and seize goods, which may then be subject to forfeiture. United States preclearance officers may impose a fine or monetary penalty on a person who makes a false declaration, or may deliver the person to a Canadian officer to be charged. Preclearance officers may not compel the payment of fines but travellers’ failure to pay such fines may affect their admissibility into the United States. Travellers returning to the United States may be the subject of enforcement action in the United States for the payment of fines or monetary penalties.
Although Canada has not chosen to operate preclearance at United States airports, the Preclearance Agreement between Canada and the United States is fully reciprocal.
Furthermore, the Preamble of the Preclearance Act makes clear that statutory authority for preclearance is “on a reciprocal basis.” As well, the administration of United States preclearance laws in Canada is subject to Canadian law including the Preclearance Act, the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, the Canadian Human Rights Act and Canadian criminal law. Preclearance officers may not administer any law that would fall under Canada’s criminal law, which can be enforced only by Canadian officers. United States preclearance officers do not have power of arrest: they may detain a passenger if the preclearance officer has a reasonable suspicion that the passenger has contravened a Canadian law but must immediately transfer the person to a Canadian peace officer who determines whether an arrest is warranted.
The Preclearance Act and Preclearance Agreement provide a permanent basis for intransit preclearance which is key benefit to Canada. In the absence of intransit preclearance, international passengers (e.g. from a third country) on route to the United States through a Canadian airport must pass through customs and immigration inspection by the Canada Border Services Agency officers before proceeding to United States preclearance. Intransit preclearance allows such travellers to by-pass the Canadian inspection process and report directly to United States preclearance. By reducing a two-step process to a one-step process, intransit preclearance provides for shorter flight connections at Canadian airports and faster routings from Asia and Europe to the United States. This makes Canadian airports that have intransit preclearance, and the accompanying air services, more convenient for international travellers to the United States.
The Preclearance Agreement made permanent an intransit preclearance pilot project at Vancouver, which began in 1997. The Agreement provides for the extension of intransit preclearance to other Canadian preclearance airports. The airport at Toronto has implemented intransit preclearance and Montreal plans do so when new facilities are completed.
The United States currently performs preclearance at eight Canadian airports: Vancouver, Calgary, Edmonton, Winnipeg, Toronto, Ottawa, Montreal and Halifax. Each year about 11.7 million travellers enjoy the benefits of preclearance. At the end of this Consultation Document is a table that shows the most recent annual number of travellers precleared at each airport.
Article XII of the Preclearance Agreement calls for the creation of a Preclearance Consultative Group (PCG) consisting of representatives of the federal governments of both parties. Canadian and United States officials met in a Preclearance Preparatory meeting on October 26, 2005 which led to PCG meetings on December 13, 2005, December 12, 2006 and February 26, 2008.
On the Canadian side, these meetings have been led by officials from the Department of Foreign Affairs with participation by officials from Transport Canada and the Canada Border Services Agency. On the United States side this has been led by the Department of State along with officials from the Transportation Security Administration and Customs and Border Protection. Article XII (b) allows “Other interested groups, including the air industry,” to attend portions of PCG meetings “by consensus of the Parties.” Canada has ensured that Canadian stakeholders are consulted by Canadian officials before PCG meetings and briefed on their outcomes.
Noting that issues arise between annual PCG meetings and that there needs to be a more flexible and timely way of dealing with operational issues as they arise, Canadian and United States officials have agreed to establish a Preclearance Technical Working Group (PTWG) focussed on addressing local issues at preclearance locations. This will support, and not replace, the annual PCG meetings while recognizing that some issues may have policy implications that can only be dealt with by the PCG. The first PTWG was held at Vancouver on August 21, 2008 and the second was held at Montreal on October 23, 2008.
The Preclearance Act has four regulations.
Under this regulation, preclearance officers cannot seize or detain currency and monetary instruments in Canada, consistent with Canadian policy. However, preclearance officers may examine currency and monetary instruments (including cash, stocks, bonds, cheques, travellers’ cheques, money orders, bank drafts and treasury bills) and, if they are not declared, may allow the traveller to proceed to the United States where detention and seizure may take place, or direct the traveller to report a Canadian officer if there has been a potential breach of Canadian export laws or Section 33 of the Act.
On January 6, 2003 Canada began enforcing a requirement for the declaration of the export or import of currency and monetary instruments in excess of C$10,000.
The intention of these regulations under paragraph 38 (1) (a) of the Preclearance Act was to specify a transparent and fair administrative due process for the disposal of detained, seized or forfeited goods by United States preclearance officers, consistent with then existing Canadian and United States laws and procedures. This includes notices to travellers of the reasons for the detention, seizure or forfeiture of goods and how to regain possession of those goods. It also was intended to require certain mandatory actions by preclearance officers regarding certain goods, such as requiring the immediate transfer of dangerous or contaminated goods to a Canadian officer for disposal.
Parliament’s Standing Joint Committee for the Scrutiny of Regulations is currently reviewing this Regulation in accordance with its mandate.
The intention of these regulations under paragraph 38 (1) (b) of the Preclearance Act was to specify who may enter preclearance areas, other than travellers destined for the United States. This was in recognition of the importance that Canada and the United States attach to the security of preclearance areas which is the responsibility of the airports. The regulations’ paragraph 2 (b) allows for persons to enter a preclearance area in order to perform maintenance or repair of the airport facilities or emergency services if those persons are “under constant surveillance by the airport operator, either electronically or by way of personal escort, while they are in the preclearance area.” However, Canada’s regulations under the Aeronautics Act require personal escort and do not accept electronic surveillance as sufficient in these circumstances. Accordingly, all preclearance airports use personal escorts of persons noted in paragraph 2(b) of these regulations.
Parliament’s Standing Joint Committee for the Scrutiny of Regulations is currently reviewing this Regulation in accordance with its mandate.
These regulations under paragraph 38 (1) c) of the Preclearance Act require airlines to provide United States preclearance officers with limited specified advance passenger information regarding international passengers travelling to the United States via an intransit preclearance facility at a Canadian airport (i.e. from a third country via Canada to the United States). The provision of limited specified advance passenger information was an essential element of intransit preclearance under the Preclearance Agreement because international intransit passengers destined to the United States would no longer be processed by Canadian customs and immigration before proceeding directly to United States preclearance. This advance passenger information facilitates the preclearance of passengers once they arrive at intransit preclearance areas at Canadian airports.
Intransit advance passenger information is limited to certain Advance Passenger Information System (APIS) data and Passenger Name Record (PNR) data, as set out in Annex III of the Preclearance Agreement and in Schedules 1 and 2 of these regulations under the Preclearance Act. Both the Preclearance Act and Preclearance Agreement contain provisions intended to protect the privacy of passenger information. Since these regulations were made there have been significant developments regarding passenger information reporting requirements imposed on airlines.
It should be noted that the advance passenger information provisions of these regulations apply only to international intransit passengers. Advance information on passengers originating their travel from Canada to the United States, and vice versa, is governed by other bilateral arrangements and Canadian legislation.
Under section 10 (1) of the Preclearance Act, “(e)very traveller has the right, at any stage of the preclearance process, to leave a preclearance area without departing for the United States, unless a preclearance officer informs the traveller that the officer suspects on reasonable grounds that the traveller has committed an offence under section 33 or 34.”
Travellers are not required to answer questions posed by preclearance officers. However, failure to answer may affect their admissibility into the United States. Refusal to answer does not in and of itself constitute reasonable grounds for a preclearance officer to suspect that a search is necessary or that an offence has been committed.
Under section 16 (1) of the Preclearance Act, “(i)f the traveller chooses to answer any question that is asked by a preclearance officer for preclearance purposes, the traveller must answer truthfully.” Section 33 (1) provides that every person who makes an oral or written statement to a preclearance officer that the person knows to be false or deceptive is guilty of an offence that is punishable on summary conviction and liable to a maximum fine of $5,000.
Preclearance officers may detain or seize goods under provisions of the Preclearance Act. The Regulations on the Manner of Disposal of Detained, Seized or Forfeited Goods Regulations (SOR/2002-145) provide for notification of the reasons for the seizure of goods and, where applicable, how to regain possession. Regaining possession of goods may entail payment of a storage and handling charge to the United States in addition to any fines and monetary penalties. In certain circumstances preclearance officers must detain goods and transfer them without delay to a Canadian officer, such as dangerous goods or goods the possession, import, export or handling is an offence under Canadian law.
In specified circumstances, a preclearance officer may conduct a frisk search (also known as a pat down search). A preclearance officer may not conduct a strip search. However, a preclearance officer may detain the traveller in certain circumstances and without delay request a Canadian officer to conduct the strip search. In either case of a frisk search or strip search, a preclearance officer must inform the traveller of the right to be taken before a senior preclearance officer who may direct the traveller to be searched if the officer suspects on reasonable grounds that the search is necessary under provisions of the Preclearance Act. Preclearance officers and Canadian officers may not conduct searches of persons of the opposite sex.
Considering that preclearance processes about 11.7 million passengers a year, there have been very few complaints registered with the Department of Foreign Affairs and International Trade. Many complaints pertain to being denied entry into the United States. It is the sovereign right of every country to determine who may enter its territory.
In addition to denial of entry, other passengers’ complaints have included lengthy interviews, including ones that result in missed flights. The Department of Foreign Affairs and International Trade’s usual advice to complainants is to take advantage of the United States Department of Homeland Security’s Traveler Redress Inquiry Program (TRIP). This program addresses complaints about watch list misidentification issues, situations in which travellers believe they faced screening problems at ports of entry, and situations where Traveler believe they have been unfairly or incorrectly delayed, denied boarding or identified for additional screening (secondary inspection) at ports of entry. Information on TRIP and how to file a complaint, including on-line, may be found at Department of Homeland Security.
Airports are responsible for the security of preclearance areas and the provision of the necessary physical infrastructure for the operation of preclearance. At the same time, the United States Customs and Border Protection Airport Technical Standards establish United States requirements for the infrastructure and operation of preclearance.
At six of the eight preclearance airports, Canadian Air Transport Security Authority (CATSA) pre-board screening takes place after preclearance. However, the current United States Airport Technical Standards call for security screening by CATSA to take place in front of preclearance to enhance the security of preclearance staff. CATSA security screening now takes place in front of preclearance at the airports at Ottawa and Halifax, and will take place in other preclearance airports in front of preclearance where the construction of new preclearance facilities, such as a new terminal, or major re-construction of existing preclearance facilities, makes it an operationally practical possibility that would not entail incremental costs to the airports concerned, to airlines or Canadian authorities other than normal operational demands on CATSA. Major re-construction has not been defined.
Where security screening takes place after preclearance, passengers report to primary inspection at preclearance with their carry-on and checked baggage for inspection. Where security screening takes place in front of preclearance, however, passengers present themselves to primary inspection at preclearance without their checked baggage. Changing from the former to the latter has significant operational and cost implications.
Article XII (2) (a) of the Preclearance Agreement says that the “Preclearance Consultative Group shall conduct a joint review of the intransit preclearance program six months after the entry into force of this Agreement and at least every two years thereafter. This joint review shall consider, among other things, concrete options for addressing the challenges of accommodation, security and sterility, and any problems in implementing the Agreement.” Intransit preclearance operations now exist at airports at Vancouver and Toronto, while the airport at Montreal is preparing to implement it. Neither Canadian nor United States officials have expressed any concerns regarding intransit preclearance operations.
The Preclearance Agreement’s Article V on “Inspecting Party’s Obligations and Authorities” requires, among other things, that the Inspecting Party shall:
The Preclearance Agreement provides these service principles but no objective service standards for preclearance operations. Airports, airlines and Canadian and United States government officials closely monitor preclearance operations for signs of existing or potential congestion and raise areas of concern when warranted.
As called for in Article VII and Annex V of the Preclearance Agreement, the ideal approach remains close coordination between United States preclearance officers, the airlines and the airports to mitigate congestion issues at each airport to ensure the efficient operation of preclearance while accommodating, to the extent practical, changes in airline services.
Although the third Canada-United States Preclearance Consultative Group meeting in February 2008 did not identify any immediate serious congestion problems, there are potential problems arising a some airports which both Canadian and United States officials are monitoring closely.
The issue of the hours of service of preclearance is similar to that of congestion at preclearance in that there are no objective standards to determine when preclearance should operate. The airline industry and airports often want a later closing or, especially, an earlier opening of preclearance. The latter facilitates same-day travel and maximizes connecting opportunities at United States airports. In some cases airline requests have been accommodated but existing preclearance staffing and other practical issues sometimes make it impossible.
Article II (8) of the Preclearance Agreement allows the Party that is conducting preclearance “to administer its civil fines and monetary penalties on travellers except when the Host Party institutes penal proceedings with respect to the same act or omission.” This is also reflected in section 6 (2) of the Preclearance Act. Preclearance officers may not impose civil fines and monetary penalties if they were to amount to a criminal penalty because section 2 of the Act defines United States preclearance laws as precluding anything that would be considered criminal under Canadian law. United States authorities do not report to Canadian authorities regarding the civil fines and monetary penalties that preclearance officers impose on travellers.
The security of a preclearance area is the responsibility of the airport. As noted above, access to preclearance areas is governed by the Regulations Designating Persons and Categories of Persons – Other Than Travellers Destined for the United States – Who May Enter a Preclearance Area (SOR2002-148). A key element is that airports may issue Restricted Area Identity Cards (RAIC) only to persons who have been granted transportation security clearances by Transport Canada.
The RAIC is a biometrically enabled swipe card which can limit a holder’s access to specific areas of the airport, such as to a preclearance area. This world-class security system has been in place at the 29 largest Canadian airports, including all preclearance airports, since February 1, 2007.
The Preclearance Agreement’s Annex II on Security Arrangements provides standards for the presence of armed Canadian law enforcement at preclearance areas. It requires a continuous presence of armed Canadian law enforcement during hours of operation at United States preclearance facilities processing over one million passengers per year. For other airports Annex II provides for certain minimum standards for the presence of armed law enforcement during peak hours of operation and maximum response times during other periods. Under Annex II (1) (a) of the Preclearance Agreement, new preclearance sites are required to have a continuous presence of armed law enforcement during hours of operation of preclearance unless both countries agree on a different standard.
Canadian authorities continuously review security arrangements at Canadian airports in light of current security circumstances.
The Minister of Transport, Infrastructure and Communities in the lead Minister responsible for the designation of preclearance areas under section 7 of the Preclearance Act, in consultation with the Minister of Foreign Affairs. These designations include architectural drawings which clearly mark areas that are always used for preclearance and areas that are sometimes used for preclearance. The designation of preclearance areas is important because they define the areas in each airport where preclearance officers may administer preclearance laws. Canadian officials conduct regular reviews of designated preclearance areas.
(October 1, 2007 to September 30, 2008)
Source: US Customs and Border Protection