Preclearance
Background
“Preclearance” is an arrangement between two countries that allows customs and immigration officials from the country of destination to be located in the country of origin in order to clear or deny the admission of travellers or goods to the destination country prior to entry into the destination country.
The United States (U.S.) has been conducting air preclearance at an increasing number of airports in Canada since 1952 under various arrangements. From 2002 until August 2019, the legal basis for these operations was provided by a treaty called the Air Transport Preclearance Agreement between the Government of Canada and the Government of the United States of America (Air agreement) and the Preclearance Act of 1999. This agreement provided for air preclearance of travellers but it did not include other modes of transport or cargo operations.
The U.S. is currently conducting preclearance operations at eight Canadian airports: Calgary, Edmonton, Stanfield (Halifax), Montréal (Trudeau), Ottawa, Toronto (Pearson), Vancouver and Winnipeg. In addition to these locations, the U.S. is conducting a narrower form of preclearance or “pre-inspection” to ensure compliance with U.S. immigration laws in British Columbia at Vancouver (both marine and rail), Sidney, Prince Rupert and Victoria.
In March 2015, Canada and the United States signed a new treaty entitled the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (LRMA), which was a commitment of the 2011 Beyond the Border Action Plan. The LRMA is a modernized framework that provides for preclearance operations to be established in either country and to be conducted in all modes of transport (i.e., land, rail and marine as well as air) as well as for cargo operations. The new Preclearance Act, 2016 (PCA, 2016) provides the legal basis for the LRMA under Canadian law.
Status
The LRMA was ratified by both countries on August 15, 2019. Canada’s obligations under this treaty were implemented in Canada through the PCA, 2016 and associated legal instruments, which entered into force the same day. They replace the previous Air agreement and Preclearance Act, of 1999. The LRMA also establishes the Preclearance Consultative Group. This group is comprised of senior U.S. and Canadian officials at the Assistant Deputy Minister level or equivalent and will meet at least annually to review performance and resolve any issues related to the implementation of this Agreement.
With the entry into force of the PCA, 2016, leadership responsibility for the legislative framework supporting preclearance has been formally transferred to the Minister of Public Safety from the Minister of Foreign Affairs. As such, the Minister of Public Safety is responsible for the administration of the PCA, 2016 and has specific duties under this Act, such as ensuring U.S. preclearance officers receive training on applicable Canadian laws and for designating land-based preclearance locations. Other Ministers have been assigned specific roles under the legislation: the Minister of Transport is responsible for the designation of rail, marine, and air preclearance locations; the Minister of Foreign Affairs can recommend the restriction of civil immunities afforded to U.S. preclearance officers; and the Attorney General of Canada is responsible for advising the Minister of Public Safety with respect to the exercise or waiver of primary criminal jurisdiction.
Considerations
With the entry into force of the LRMA and the PCA, 2016, it will now be possible for:
- The five existing rail and marine pre-inspection sites in British Columbia to transition to full preclearance;
- New preclearance sites to be established in Canada or the U.S. in any mode of transport;
- In this regard, much attention has been given to potentially establishing preclearance at Billy Bishop Toronto City Airport and Jean Lesage International Airport in Quebec City. Support for these sites was publicly announced in a joint statement from Prime Minister Trudeau and President Obama and a subsequent statement from Prime Minister Trudeau and President Trump. Both facilities have signalled a strong interest to establish preclearance operations but have also indicated that government funding is required in order to establish preclearance.
- U.S. preclearance officers can be armed in Canada in the same operational environment as Canada Border Services Agency (CBSA) officers (reciprocity). U.S. officers are not currently armed in Canada, pending the installation of appropriate storage facilities in preclearance airports. U.S. officers have been afforded, by way of amendment to the Criminal Code, new duty-related protections and accountabilities under the new regime.
Next Steps
- Public Safety, in collaboration with other government departments, will support all prospective Canadian preclearance locations in their efforts to determine the feasibility of establishing preclearance.
- CBSA is in the process of establishing the operational framework and identifying potential sites to pilot Canadian preclearance locations in the U.S.
- Public Safety, as the overall program lead for preclearance in Canada, will ensure compliance with the PCA, 2016, the Canadian Charter of Rights and Freedoms and other applicable laws in the conduct of preclearance operations. Public Safety will also provide on-going administrative support for the preclearance framework, which includes ongoing bilateral relations with the U.S. and stakeholder relations.
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