The Preclearance Act, 2016

On June 17, 2016, Ralph Goodale, 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 (short titled the “Preclearance Act, 2016”). Amongst other things, the Preclearance Act, 2016 provides for the creation of preclearance areas and perimeters in the United States by Canadian officers of travellers and goods bound for Canada.

Canadians who have travelled by air to the United States during the last several years will be familiar with the concept of preclearance, as the United States already has preclearance areas at most major Canadian airports. There, passengers travelling to the United States clear customs at Canadian airports. When the passengers arrive at American airports, they disembark at domestic terminals, and do not have to again clear customs.

The Preclearance Act, 2016 will allow Canada to set up preclearance areas and perimeters in the United States, and will allow the Canada Border Services Agency (“CBSA”) officials to exercise their powers under the Immigration and Refugee Protection Act in preclearance areas and preclearance perimeters whose locations will be agreed upon between the United States and Canada. Both Canada and the United States have announced that each country intends on establishing preclearance areas and perimeters for air, sea, land, and rail crossings.

At preclearance perimeters and areas and areas CBSA officers will be permitted to admit or refuse travellers to continue to Canada from preclearance facilities prior to them actually arriving at a Canadian port of entry.

Importantly, s. 48(1) of the Preclearance Act, 2016 provides that a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is, for the purposes of the Immigration and Refugee Protection Act, outside of Canada. As such, both refugee protection claims and flag-poling will not be possible at preclearance facilities and perimeters.  Indeed, since preclearance perimeters and areas are deemed to be outside of Canada, then port of entry work permit applications will not be possible at them.

As well, CBSA officers in preclearance perimeters and areas will be able to prepare inadmissibility reports if they are of the opinion that a traveller in a preclearance area or perimeter is inadmissible to Canada. Importantly, s. 48(4) of the Preclearance Act, 2016 may permit CBSA to deny admission to Canada of permanent residents where the CBSA determines that the permanent resident has not met their residency requirement. I say “may” because the exact inadmissilibites that will result in the denial of entry to Canada will be prescribed at a future date.

This is just a preliminary summary of the Preclearance Act, 2016 and I hope to provide more information as it becomes available, including where exactly these preclearance areas and perimeters will be. As currently written, the Preclearance Act, 2016 will create an unusual situation in which permanent residents and foreign nationals may need to consider which airport to travel from when they travel to Canada.

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