Executive summary: United States preclearance in Canada

Description of the project

Preclearance is a border management program designed to enhance border security, improve the cross-border flow of legitimate goods and travellers and allow for border infrastructure to be used more efficiently. Associated legislation, regulation and policy provide authority to border officers of an inspecting party (example, the US) to conduct customs, immigration, agriculture and public health and safety examinations inside the territory of a host party (example, Canada). By doing so, preclearance allows border officers of the inspecting party to determine the admissibility of goods and travellers before they enter into the territory of the inspecting party.

In March 2015, Canada and the United States signed the Agreement on Land, Rail, Marine, and Air Transport Preclearance (LRMA), a treaty-level agreement establishing the legal framework for an expanded preclearance program between Canada and the US. Based on the LRMA, the Preclearance Act (PCA) 2016 received Royal Assent in December 2017. The PCA 2016 provides the enabling legislative authority to ratify the LRMA, and it replaced the PCA 1999. Ratification of the LRMA and the coming into force of the PCA 2016 occurred in August 2019. While the LRMA and PCA 2016 allow for Canadian officials in the US to conduct preclearance on goods and individuals seeking to enter Canada, this PIA focuses exclusively on US preclearance operations in Canada, which impact the CBSA's collection of information on individuals and goods.

In Canada, US air preclearance has been successfully in place since the 1950s. As of October 2022, US preclearance operations are at eight airports across Canada in the traveller stream. There is no commercial preclearance in Canada and there are no Canadian preclearance operations in the US at this time.

For preclearance in Canada, the PCA 2016 provides the CBSA with legal authority to exercise various powers with respect to US-bound travellers upon the request of or after a referral from Customs and Border Protection (CBP).

After receiving a request from a CBP preclearance officer, and after the CBSA officer has determined there are reasonable grounds under Canadian law, the following searches of a person may occur: frisk search for health and safety, strip search and an monitored Bowel movement (MBM). In addition, after the traveller provides consent, a CBSA officer may transfer a person to a medical facility where an X-ray or body cavity search (BCS) may be performed.

In practice, the CBSA may be called upon to assist the US preclearance officers in performing various types of searches: frisk, strip, MBM, X-ray, and BCS. Personal information is exchanged between the CBSA and CBP for the purposes of preclearance.

Heads of the institution: Privacy impact assessment and US preclearance in Canada

Government of Canada Institution

Canada Border Services Agency, Travellers Branch

Government Official responsible for the privacy impact assessment

Vice President Travellers Branch

Head of the government institution / Delegate for section 10 of the Privacy Act

Director General, Information Sharing, Access to Information and Chief Privacy Office

Name of program or activity of the government institution

Program

Border Management – Sub-program: Traveller Facilitation and Compliance

The following program under the CBSA's Departmental Results Framework (DRF) applies to Preclearance activities: Traveller Facilitation and Compliance.

The CBSA assesses risk to identify threats, manages the free flow of admissible travellers and commercial goods into, through and out of Canada, and manages non-compliance.

Under Traveller Facilitation and Compliance, the CBSA processes admissible travellers and their goods in an efficient manner, and compliant with applicable legislation.

Standard or Institution specific Class of Record

To be determined.

Standard or Institutional specific Personal Information Bank

To be determined.

Legal authority for program or activity

Predominately, the legal authority is under the Preclearance Act 2016. However, other acts apply to certain processes that extend from preclearance activities, such as the authorities under the Customs Act and Immigration and Refugee Protection Act (IRPA).

The Agreement on LRMA contains provisions which obligate the Host Party (that is, Canada) to perform certain duties. Because the US did not create or edit legislation, they perform their activities in accordance with the LRMA and the PCA 2016.

Section 2: Risk area identification and categorization