Order Amending the Schedule to the Preclearance Act, 2016 (Miscellaneous Program): SOR/2024-260

Canada Gazette, Part II, Volume 158, Number 26

Registration
SOR/2024-260 December 9, 2024

PRECLEARANCE ACT, 2016

P.C. 2024-1299 December 9, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Order Amending the Schedule to the Preclearance Act, 2016 (Miscellaneous Program) under section 44 of the Preclearance Act, 2016 footnote a.

Order Amending the Schedule to the Preclearance Act, 2016 (Miscellaneous Program)

Amendment

1 The schedule to the Preclearance Act, 2016 footnote a is amended by replacing item 4 with the following:

Coming into Force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order and the Regulations.)

Issues

In September 2019, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) identified technical issues with: (i) the Preclearance in Canada Regulations (the Regulations); and, (ii) with the Schedule to the Preclearance Act, 2016 (the Schedule) and recommended they be amended. Public Safety Canada agrees the technical issues should be addressed and therefore amendments to the Regulations and Schedule are needed. Public Safety also identified a minor administrative issue to be corrected.

Objective

The amendments have the following objectives:

Description and rationale

Preclearance in Canada Regulations

The SJCSR identified two technical issues concerning the Regulations: (i) the lack of precision concerning the transfer of seized or detained goods from a preclearance officer to a Canadian authority and (ii) a discrepancy between English and French versions of an additional provision.

In order to address these observations and bring greater clarity to the Regulations, amendments are being made to sections 7 and 9. These two sections prescribe the manner in which goods seized or detained by the United States (U.S.) preclearance officers in the course of their duties must be transferred to Canadian authorities. Previously, the Regulations prescribed that dangerous goods, nuclear substances, and goods subject to public health, food inspection or plant and animal health laws seized by preclearance officers had to be transferred to either a Canadian peace officer or a person authorized to enforce an Act of Parliament, as soon as feasible after their seizure. The SJCSR identified that these sections may, in practice, authorize the transfer of a seized or detained good to a person who lacks the authority to receive it. For example, the provision could have been interpreted to mean that a seized nuclear substance could be transferred to a food inspection officer, as the food inspection officer has the authority to enforce an Act of Parliament.

Consequently, section 7 and section 9 are amended to make clear that the intent is for a seized or detained good to be transferred to a person with relevant authority to receive it under an Act of Parliament.

The SJCSR further identified a linguistic discrepancy at paragraph 7(2)(c), which requires a preclearance officer to provide the traveller with a written notification concerning the transfer of a seized good to Canadian authorities. The discrepancy existed insofar as the English version referred to a person with authorities under Canadian law, while the French version referred to a person with authorities under federal law, in the context of receiving a seized good from a preclearance officer. The discrepancy arose as the interpretation of Canadian law is broader and it could include provincial laws or municipal bylaws. The intent is to permit the transfer of a seized good to a Canadian officer with relevant authorities under an Act of Parliament. Therefore, the English version of this paragraph is amended.

The intent of paragraph 2(1)(c) is to permit entry to the preclearance area of persons authorized to either administer or enforce Canadian laws, or both. Therefore, the English text of this provision accurately reflects the intent. Unfortunately, there currently exists discrepancy between English and French versions, in that the French version of paragraph 2(1)(c) requires that a person be authorized to both administer and enforce Canadian law. Therefore, it is being amended to reflect what is already accurately reflected in the English version.

These amendments come into force on registration.

Schedule to the Preclearance Act, 2016

The SJCSR also identified the need to clarify item 4 of the Schedule to the Preclearance Act, 2016.

The physical spaces where preclearance operations occur must be officially designated as “preclearance areas” or “preclearance perimeters” by the responsible Minister. The types of locations in which a preclearance area or preclearance perimeter can be designated must be listed in the Schedule to the Preclearance Act, 2016. Previously, the Schedule listed four items corresponding to the following locations: (1) aerodromes; (2) marine facilities; (3) railway stations and terminals; and (4) any highway, road, bridge, tunnel or path that connects Canada with the United States and any place from which goods are regularly shipped for export to the United States.

The Minister of Transport is responsible for designating preclearance areas and/or preclearance perimeters in circumstances concerning marine navigation or infrastructure, aerodromes and railways and railway terminals. The Minister of Public Safety and Emergency Preparedness is responsible for designating preclearance areas and/or preclearance perimeters in all locations, including highways, roads, bridges, tunnels and paths.

The SJCSR observed that the description of locations in Item 4 was too broad because the locations therein could overlap with locations already captured in items 1 to 3. Item 4 is amended, and items 5 and 6 are added to articulate that a preclearance area or preclearance perimeter may be designated in locations associated with road-based means of transporting goods or people.

These amendments come into force on registration.

One-for-one rule and small business lens

The one-for-one rule does not apply to these amendments, as there is no change in administrative costs or burden to business.

Analysis under the small business lens determined that the proposal will not impact small businesses in Canada.

Contact

Philippe Roseberry
Director
Border Policy Division
Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Email: Philippe.Roseberry@ps-sp.gc.ca