CANADA – U.S. RELATIONS
PRECLEARANCE OF
TRAVELLERS FROM CANADA TO THE U.S.
Bilateral
Cooperation or Intrusion on Sovereignty?
By: Sergio R. Karas, B.A., LL.B.
Karas & Associates
- In Affiliation With Hirson Wexler Perl & Stark
Practice limited to U.S. and Canadian Immigration and
Nationality Law
Sergio R. Karas is a Canadian lawyer, practising in the area of
Immigration Law in Toronto. He is a member of the board of directors of several
community organizations, and a regular speaker at international legal seminars.
His comments and opinions are general and are not intended to be interpreted
with respect to any specific situation.
He can be reached at Karas & Associates, (416) 506-1800 or
through e-mail at skaras@hwps.com.
Canada has allowed U.S. Federal Inspection Services to
operate air passenger preclearance in Canada since the 1950s. "Preclearance" is the processing
by U.S. federal inspection agencies of travellers and goods from Canada seeking
entry into the United States.
These arrangements were formalized by the 1974 Air
Transport Preclearance Agreement between Canada and the United States of
America. Under that agreement, air
preclearance services now clear some 8.5 million passengers a year at the
Canadian airports of Vancouver, Edmonton, Calgary, Winnipeg, Toronto, Ottawa
and Montreal (Dorval). Since that
agreement was signed, however, changes have been made to Canadian law; the Canadian
Charter of Rights and Freedoms part of the Constitution Act, 1982,
has granted and protected new individual rights. At the same time, border
processing has evolved as a result of the rapid increase in trade between
Canada and the U.S.
On June
17, 1999 the Government of Canada gave Royal Assent to Bill S22 “An Act
authorizing the United States to pre-clear travellers and goods in Canada for
entry into the United States for the purposes of customs, immigration, public
health, food inspection and land and animal health”. Originally introduced in Parliament in
December 1998, Bill S22, now known as the Preclearance Act was part of a
“reciprocal” arrangement between the United States and Canada with respect to
the powers of preclearance by officers of both countries in airport areas. However, Canada does not pre-clear
travellers in the United States, but only the United States does so in Canadian
airports.
Until now, international passengers en route to the
United States through a Canadian airport had to pass through Canadian Customs
and Immigration before seeing a U.S. preclearance officer. Intransit passengers from third countries at
Canadian airports with preclearance facilities can now proceed directly to U.S.
preclearance, reducing two inspections to one.
These services have been provided at the Vancouver International Airport
on a pilot basis since June 1997. In
addition, air transportation companies, prior to arrival in Canada, are
required to provide preclearance officers with specified information about
passengers passing through Canada en route to the United States.
The statutory authority provided in the Act
ensures the existence of the appropriate legal framework for border management
and attempts to protect travellers’ rights under Canadian law. U.S. Federal Inspection Services are able to
examine and seize goods and to administer certain monetary penalties under U.S.
border control statutes. U.S. laws can
be administered only in designated preclearance areas, subject to the Canadian
Charter of Rights and Freedoms and relevant Canadian laws. No provision of U.S. law that would be
considered criminal under Canadian law could be applied in Canada; criminal
matters are supposed to be dealt with by Canadian authorities under Canadian
law. The Act applies to every
traveller, not only Canadians, seeking entry to the United States from a
Canadian airport.
The
main provisions of the Act are as follows:
1.
Only
travellers destined for the United States may enter any preclearance area. Every traveller has the right, during any
part of the preclearance process, to withdraw and leave the preclearance area
unless the preclearance officer informs the traveller that the officer
suspects, on reasonable grounds, that he has committed an offence, generally
the making of an oral or written statement that the person knows to be false or
deceptive, or if the person resists or wilfully obstructs an officer in his
execution of his duty, in which instances the traveller will not be allowed to
withdraw. If a traveller refuses to go
to a preclearance area, the U.S. officer may request a Canadian officer to bring
the traveller to the preclearance area.
2. A preclearance officer is, if
acting on reasonable grounds, is justified in using as much force as is
necessary for the purpose of doing what he or she is required or authorized to
do under the Act. If a traveller
refuses to answer any question asked for preclearance purposes, the
preclearance officer may order the traveller to leave the preclearance
area. Refusal to answer any question
does not by itself constitute reasonable grounds for the officer to suspect
that a search of the traveller is necessary or that an offence has been
committed.
3. A preclearance officer may conduct
a frisk search of any person if the officer suspects on reasonable grounds that
the person is carrying anything that would present a danger to human life or
safety, or that the person is carrying anything that would afford evidence of a
contravention that the person has made a false oral or written statement. The preclearance officer may detain a person
if he suspects that a strip search is necessary for the purposes allowed under
the Act. A preclearance officer
may seize any goods that he believes relate to a false or deceptive statement
or afford evidence of the contravention of the Act.
4. Any company operating any aircraft
carrying passengers to the United States must, before the arrival of the
aircraft in Canada, provide a preclearance officer with specified passenger
information, failing which the preclearance officer may refuse to preclear the
passengers. This information is used so
that preclearance officers may adopt appropriate measures to enforce the
provisions of the Act.
5. Persons who make an oral or
written statement to a preclearance officer with respect to themselves or any
goods for entry into the United States, knowing it to be false or deceptive,
are guilty of an offence punishable on summary conviction and liable to a
maximum fine of CDN $ 5,000.00. Every
person who resists or wilfully obstructs a preclearance officer or Canadian
officer in the execution of the officer’s duties, is guilty of an indictable
offence and liable to imprisonment for a term of not more than two years, or is
guilty of an offence punishable on summary conviction. No decision of a preclearance officer to
refuse preclearance or to refuse the admission of persons or the importation of
goods into the United States is subject to judicial review in Canada.
Under the Act, preclearance laws can be
administered in Canada in a preclearance area with respect to travellers
seeking admission to the United States, and with respect to goods to be
imported into that country, subject to the Canadian Charter of Rights and
Freedoms, the Canadian Bill of Rights, and the Canadian Human
Rights Act. No U.S. monetary
penalties can be imposed in Canada if proceedings are instituted with respect
to an act or omission that had taken place in a preclearance area and that
constituted an offence under Canadian law.
Nothing in the Act precludes a Canadian officer from enforcing
Canadian law in a preclearance area.
During Parliamentary debate, the Senate added a new
clause to Bill S22. Under that clause
(Section 39), the Minister in charge of administrating the Act is
required to have an independent review of the Act conducted five years
after it came into force. The Minister
is required to table a report on that review in both the Senate and the House
of Commons on any of the first 15 sitting days of each chamber after the review
was completed.
A number of serious concerns about the Act have
been raised by lawyers and advocacy groups, including the complaint that it
would result in a serious abrogation of the rights of travellers on Canadian
soil and a considerable intrusion upon Canadian sovereignty. After consultations between the government
and advocacy groups, a number of amendments were introduced that attempt to
address some of those concerns and provide clarity to the Act, including
the protection of basic rights guaranteed by the Charter.
An action or other proceeding of a civil nature, where
the United States is not immune from the jurisdiction of a court in Canada
under the State Immunity Act, could be brought against the United States
in respect of anything that was, or was purported to be done or omitted by a
preclearance officer within the scope of his or her duties. However, a very important exemption exists,
which “insulates” U.S. preclearance officers in the administration of their
duties: no decision of a preclearance
officer to refuse preclearance, or to refuse the admission of persons or the
importation of goods to the United States, can be subject to judicial review in
Canada.
The
provisions of the Act are far-reaching and give U.S. preclearance
officers considerable powers with respect to persons seeking entry to the
United State, notwithstanding the fact that they are still on Canadian
soil.
The Act and its application give rise to numerous legal questions
that will no doubt result in future litigation, such as:
·
If a traveller is detained, will
he or she be subject to U.S. or Canadian legal protection of his or her rights
when he or she may have violated U.S. law?
·
If a detainee is a U.S. citizen,
will officers have to advise of his or her U.S. constitutional rights, as
required by the U.S. Supreme Court decision in Miranda?
·
If a traveller is from a third
country, will that country need to be notified through its local diplomatic
staff?
·
At what exact moment would a
traveller not be able to “withdraw” from the preclearance area, effectively
constituting a “point of no return”?
·
Should a traveller be stopped
for a potentially serious offence, such as drug trafficking or suspected
terrorism, would he or she simply be allowed to walk away after entering the
preclearance area and withdrawing back to Canadian territory? Could a U.S. preclearance officer insist to
a Canadian officer that a traveller be arrested on any grounds?
All the above issues will create interesting legal problems on both
sides of the Canada – U.S. border.
For
further information please contact Sergio R. Karas, B.A., LL.B, at (416) 506-1800
or email at skaras@hwps.com