Clients travelling to the U.S.? What to know about preclearance

Many Canadians know they can clear U.S. customs at Canadian airports — a process known as preclearance. But changes to the rules are likely because of a new bill, Bill C-23, the Preclearance Act, 2016.

The bill expands preclearance operations in Canada, covering all modes of transport for both passengers and cargo. A key feature is the broader powers for United States Customs and Border Protection (U.S. CBP) officers operating at Canadian airports and other departure points. The U.S. version of the bill was enacted in December 2016, allowing Canada Border Services Agency (CBSA) officers stationed at U.S. airports to hold reciprocal rights to screen travellers headed for Canada.

Supporters of expanded preclearance rules highlight potentially greater efficiency and faster travel procedures. But detractors highlight the greater potential for rights infringements and privacy breaches.

What do advisors need to know?

What could change

Bill C-23 was submitted for second reading on March 6, 2017, and is now with the Standing Committee on Public Safety and National Security. Here’s a summary of what the bill contains:

Preclearance procedure	Existing law	Proposed rule
Searches	Preclearance officers may “frisk search” a person only if they suspect the person is carrying anything that would endanger human life or safety or that provides evidence of false or deceptive statements. Based on the above, preclearance officers may also detain people for strip searches, but only CBSA officers can perform them.	Preclearance officers may “frisk search” a traveller bound for the U.S. if they reasonably suspect the traveller has concealed goods. Preclearance officers may also conduct strip searches based on the above and if “the search is necessary for the purpose of conducting preclearance.”
Withdrawing from a preclearance area	Every traveller has the right, at any stage of the process, to leave a preclearance area without departing for the U.S., unless the traveller is suspected of committing an offence. Refusal to answer questions from a preclearance officer does not constitute an offence.	A traveller who withdraws from preclearance must (a) answer truthfully any question asked by a preclearance officer for the purpose of identification or determination for withdrawal; and (b) comply with other related directions from the preclearance officer.
Officers carrying guns	Preclearance officers aren’t allowed to carry firearms in Canada.	Preclearance officers will be permitted to possess, transfer, import and export a firearm, prohibited weapon or restricted weapon (e.g., a handgun).
Biometric information	N/A	Preclearance officers may collect biometric information, other than from the traveller’s bodily substances. However, officers can’t collect this information unless they’re told within the preclearance area that the traveller is withdrawing.

Sources: House Government Bill C-23 ; Preclearance Act S.C. 1999; Government of Canada news release; Government of Canada summary

How clients could be impacted

The federal government has stated that expanded powers for U.S. CBP officers won’t undermine Canadians’ rights and freedoms. A parliamentary blog post by Ralph Goodale, the minister of public safety and emergency preparedness, who sponsored the bill, says: “The powers that U.S. border officers exercise under Canadian law are governed by the Canadian Bill of Rights, the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms.”

Preclearance locations in Canada

• Existing: U.S. preclearance operations began at Toronto Pearson International Airport in 1952. Preclearance is currently available at seven other airports: Vancouver, Calgary, Edmonton, Winnipeg, Toronto, Ottawa, Montreal and Halifax.
• Proposed: Preclearance is expected to be introduced at Billy Bishop Toronto City Airport, Québec City Jean Lesage International Airport and Montreal Central Station.

Sources: U.S. Customs and Border Protection; Government of Canada news release

But cross-border immigration lawyer Henry Chang, a partner at Blaney McMurtry in Toronto, is skeptical, because it’s unclear how Canadian rights would be protected. “As you start looking more closely, it’s clear there isn’t a lot of opportunity to enforce any violation[s],” he says.

Read: How Trump’s second travel ban affects Canadians

Excessive questioning by preclearance officers

The bill gives preclearance officers broad power to question a traveller bound for the U.S. — with no requirement that questions be reasonable or relevant. Therefore, travellers could be asked about their religion or drug-taking history, says Chang.

Withdrawal obligations

Currently, Canadians can opt out at any time during the process. If the new law takes effect, however, Canadian travellers will have to truthfully explain why they’re withdrawing applications for admission. The bill also authorizes officers to exercise reasonable force, which may include detaining travellers until they’ve answered questions to their satisfaction.

“Refusing to answer questions or walking away could result in a traveller being found to be non-compliant […] or obstructing a preclearance officer,” says Barbara Jo Caruso, vice-chair of the Canadian Bar Association’s immigration section, in an email.

And the bill could make such resistance or obstruction a criminal offence.

Removal of the unqualified right to withdraw could hurt all travellers, including business travellers, says Caruso. Currently, when a business traveller withdraws a request to enter the U.S. so that, for example, she can seek legal counsel on whether to get a work permit, the traveller avoids being denied entry, which could adversely impact any future application. The traveller can then return and make a fresh request, says Caruso. Under the new rules, that option wouldn’t be available.

Read: How to apply for TN status to work in the U.S.

Potential loss of electronic devices and NEXUS cards

Bill C-23 doesn’t address the issue of U.S. CBP officers examining travellers’ electronic devices or accessing passwords. And Canada’s existing law remains murky in this regard.

Nonetheless, CBSA policy states that personal device exams should be conducted only if there are grounds or indications that “evidence of contraventions may be found on the digital device or media,” says the privacy commissioner’s website.

Caruso notes that once the new preclearance rules take effect, U.S. CBP officers won’t be required to return goods seized and detained in the preclearance area, even if no contravention occurred. U.S. CBP officers could destroy seized laptops or personal devices, and there won’t be a way to request the items be returned, she says. As such, business travellers should avoid travelling with confidential client information.

Caruso also notes the bill is silent on the seizure or cancellation of NEXUS cards, so there’s no provision to review a decision to revoke NEXUS.

Be prepared

When advising business travellers specifically, Caruso recommends preparation. “Know where you are going, who you will be meeting with, for how long and for what purpose. Carry a letter from your employer confirming these details so you can present the letter if you are challenged about your verbal declaration.”

Caruso suggests seeking legal advice in advance if travellers are unsure about admissibility or whether they require work permits. “Understand that more data with respect to travel history is being maintained and shared between governments, so inaccuracy in answers could lead to concerns over credibility and ultimately result in denial of entry. Also, […] a misrepresentation can result in a five-year ban to enter either country.”

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