Other issues: Standing Committee on National Security, Defence and Veterans Affairs: Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016 (May 30, 2022)

Other technical and administrative legislative amendments to the Customs Act and the Preclearance Act, 2016

Summary of enforcement-related misc. changes to the Customs Act

Overview

The Bill introduces amendments to the Customs Act (CA) and Preclearance Act (2016) to revise the legal framework governing the examination of personal digital devices (PDD) at the border. It also authorizes the making of regulations in respect of those examinations under the CA. Additional CA amendments are also included in the Bill to update the following enforcement-related provisions.

Making electronic copies

In the context of criminal investigations, it has been the Canada Border Services Agency’s (CBSA) practice to make copies and to return digital devices to their owner if / when practical. To formalize this practice, it is proposed that the authority to seize electronic documents by making electronic copies be added to the seizure authority in section 110 and the warrant authority in section 111. This would be limited to situations where physical seizure of the electronic device or storage medium is impossible or impractical, or may be reasonably likely to degrade the electronic document or render it unusable for inspection or as evidence.

Additionally, subsection 115(1) of the CA is proposed to be amended to clarify that electronic/digital copies of items seized by a CBSA officer pursuant to a warrant—such as computer printouts or imaged/mirrored hard drives—would have the same evidentiary value as the originals. This would ensure that electronic/digital copies are deemed equivalent to the originals in the context of a prosecution, and would allow electronic devices to be returned to owners as soon as possible, without compromising the CBSA’s evidentiary record.

Obtaining a search warrant by means of telecommunication

Currently, the Customs Act does not contain provisions to obtain a warrant by means of a telewarrant. This Bill would align authorities under the Customs Act with like provisions in section 487.1 of the Criminal Code by enabling the information required for a search warrant, issued under subsection 111(1) of the CA, to be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with any necessary modifications. It should be noted that former Bill C-23^{Footnote 1} (An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)) was introduced on February 24, 2021, and proposed a “warrant by telecommunication” regime that would allow a peace officer or a public officer to submit a warrant application by means of a telecommunication in relation to specified sections of the Criminal Code. Should that Bill be re-introduced, any subsequent amendments to the Criminal Code with respect to the telewarrant process would also apply to the Customs Act.

Penalty for hindering an officer

The Bill looks to amend section 160.1 of the CA to make a contravention of section 153.1 (hindering an officer) a hybrid offence. This amendment would make the penalties the same as those that exist for a similar offence under the Immigration and Refugee Protection Act. The new penalties would consist of: (1) a maximum fine of $10,000 and/or a maximum term of six months imprisonment (on summary conviction); or (2) a maximum fine of $50,000 and/or a maximum term of five years imprisonment (on indictment). Currently, a contravention of section 153.1 is only punishable by way of summary conviction and is subject to a minimum fine of $1,000 and maximum fine of $25,000 and/or a maximum term of 12 months imprisonment.

Aligning limitation period for proceedings with similar provisions in the Income Tax Act

In recognition of the long timeframes associated with criminal investigations resulting from post-border audits and compliance verifications, it is proposed that the limitation period be expanded to align with similar provisions available to tax investigators under subsection 244(4) of the Income Tax Act. This would amend section 163 of the CA to increase the limitation period for proceedings by way of summary conviction from three (3) year to eight (8) years.

Summary of misc. changes to the Preclearance Act, 2016

The Preclearance Act, 2016 (the Act), establishes that US-bound travellers and other persons entering a preclearance area and/or a preclearance perimeter, are obligated to report immediately to a preclearance officer, identify themselves and state the reason for being in that location. The proposed miscellaneous amendments to the French version of the Act clarify the existing language in respect of a traveller’s obligation to identify themselves.

The amendments are made to the French version of paragraphs 20(1)(d), 27(2)(a), 28(1)(a), 31(2)(a) and 32(1)(a). Their aim is to replace the French term “s’identifier” with the term “donne(r) son identité”. In all five instances, the term “s’identifier” is ambiguous as compared with the English version of the Act.

The term “s’identifier” should not be used in context the context of providing one’s identification, rather this term is more properly applied in the context of identifying oneself with someone or something. That is not the intent in the Act. The term “donne(r) son identité” best reflects the intent which is to have a person identify themselves to a preclearance officer.

Additional background

Summary of case history (R v Canfield and R v Townsend)

The case of R v Canfield and R v Townsend (Canfield) involved two convictions from 2018 for possession and smuggling of child pornography in which the original trial judge found that the defendants’ Canadian Charter of Rights and Freedoms were not breached.

• Both individuals were Canadian citizens and subjected to a routine inspection when returning to Canada through the Edmonton International Airport (EIA) in two unrelated passages
• In each case, the secondary customs examination led to an examination of a digital device

The defendants were each charged and prosecuted on one count of possession and one count of importing of child pornography contrary to sections 163.1(4) and 163.1(3) of the Criminal Code.

Each accused was found guilty on both counts and, their applications to have Customs Act 99(1)(a) declared unconstitutional was dismissed.

Appeal

The defendants jointly appealed the decisions and their case was heard on January 8, 2020.

On October 29, 2020, the Court of Appeal of Alberta ruled in Canfield that para. 99(1)(a) of the CA, in the context of PDD examinations, is unconstitutional to the extent that it imposes no limits on such examinations.

The Court ruled that these examinations infringe s. 8 of the Charter and that this infringement could not be saved by s. 1 of the Charter (in other words, Reasonable Limits: the Charter guarantees rights and freedoms set out in it subject only to such reasonable limits prescribed by law).

The Court therefore declared that the definition of “goods” in s. 2 of the CA no longer includes the contents of PDDs for the purposes of enforcing para. 99(1)(a).

Despite this finding of constitutional invalidity, the appellant’s original convictions were upheld.

While the ruling only applied in the province of Alberta, it was anticipated to have persuasive impact nationally on the constitutionality of para. 99(1)(a).

The Court’s declaration of constitutional invalidity was suspended for one year to enable Parliament to make legislative changes to reconcile the constitutional deficiency (original expiry date of October 29, 2021).

Following the ruling in October 2020, the Director of Public Prosecutions decided not to file an application for leave to appeal to the Supreme Court of Canada (SCC). The following reasons were identified:

• that the arguments on appeal were unlikely to succeed
• that if successful, the SCC could limit Parliament’s flexibility to legislate beyond what the Court of Appeal had already done in Canfield

The appellants sought an application for leave to appeal, and on March 11, 2021, the SCC dismissed their applications.

Extension

While the required policy work commenced immediately, the legislative process is complex and time-consuming. Delays were also experienced due to the federal election in September 2021. As a result, the CBSA submitted an affidavit via the Public Prosecution Service of Canada to request an extension of six months from the Court of Appeal of Alberta.

The Court granted the extension but encouraged parliament to work ‘with alacrity’ to enact the required changes.

However, as the legislation was not in force by April 28, 2022, CBSA officers at Alberta Ports of Entry must use an alternate search authority in order to examine personal digital devices. This authority [99(1)(e)] is far more limited in scope and requires a higher threshold be met (reasonable grounds to suspect) prior to undertaking an examination.

Annex - Ontario Superior Court Ruling in R v Pike and R v Scott

On April 14, 2022, the Ontario Superior Court (ONSC) also ruled in R v Pike and R v Scott (possession of child pornography cases) that personal digital device examinations are unconstitutional under para 99(1)(a) of the Customs Act. The Public Prosecution Service of Canada (PPSC) had requested a one-year extension in the event that the provision was found unconstitutional, which the ONSC did not grant. The ONSC decided that the suspension would be co-extensive with the Canfield suspension and expire on April 28, 2022.

Description of other ongoing cases

R v Pike (Ontario)

Jeremy Pike, a Canadian citizen, arrived at Pearson International Airport (PIA) in February 2020, from Indonesia via London, UK. The individual was the subject of a CBSA lookout for contraband and was referred to secondary.

A criminal record query found that Mr. Pike had a conviction for the production of child pornography and had been sentenced to 15 years.

The CBSA officer obtained Mr. Pike’s passwords and searched multiple electronic devices, where child pornography was uncovered.

Included a constitutional challenge to section 99(1)(a), along with section 2 of the Customs Act (CA).

On April 14, 2022, the Ontario Superior Court (ONSC) ruled that personal digital device examinations are unconstitutional under para 99(1)(a) of the Customs Act. The Public Prosecution Service of Canada (PPSC) had requested a one-year extension in the event that the provision was found unconstitutional, which ONSC did not grant. The ONSC decided that the suspension would be co-extensive with the Canfield suspension and expire on April 28, 2022.

R v Scott (Ontario)

David Scott, a Canadian Citizen, arrived at PIA in June 2020, returning from his current residence in Belize, via Houston.

Mr. Scott was referred based on a roving exercise that revealed stamps indicating recent travel to Belize, Dominican Republic, and Mexico.

A progressive examination of Mr. Scott’s baggage uncovered eight hard drives. The officer obtained the passwords for the devices and child pornography was subsequently discovered.

R v Scott was heard as a companion case to R v Pike where the ONSC ruled that personal digital device examinations are unconstitutional under para 99(1)(a) of the Customs Act. The PPSC had requested a one-year extension in the event that the provision was found unconstitutional, which ONSC did not grant. The ONSC decided that the suspension would be co-extensive with the Canfield suspension and expire on April 28, 2022.

R v Benedicto (Saskatchewan)

Reechmond Benedicto, a Canadian Permanent Resident, arrived at the Portal/North Portal border crossing in Saskatchewan in June 2017.

A criminal record query found that Mr. Benedicto had been previously charged and acquitted of child pornography allegations and was referred to secondary.

Officers then attempted an examination of the traveller’s digital devices, pursuant of s. 99(1)(a) of the CA, however were unable to gain access to Mr. Benedicto’s iPhone.

The devices were detained pursuant of section 101 of the CA and in November 2019, the CBSA Winnipeg laboratory was able to unlock the passcode using newly available hardware and software. In December 2019 port of entry officers subsequently accessed the device and continued the inspection which uncovered child pornography.

R v Benedicto includes constitutional challenges to sections 2, 99(1)(a), and 101 of the CA. The January 6 to 7 trial dates were vacated, and the Provincial Crown is set to prepare an Agreed Statement of Facts.

Next case management conference is on May 13, 2022 to set trial dates; trial dates likely to be in September or October, 2022.

Related Immigration and Refugee Protection Act (IRPA) Cases

R v Al Askari (Alberta)

Hani Al Askari, a Palestinian national, arrived at the Coutts border crossing in Alberta in April 2015, seeking admission into Canada as a refugee and was directed for secondary examination.

He provided his documents and luggage, including two cell phones, to the border services officer for inspection.

The officer did not have any indicators of Mr. Al Askari’s inadmissibility (including criminality), except that as a foreign national without a visa, he was presumptively inadmissible.

Upon examination of Mr. Al Askari’s devices, child pornography was discovered. He was subsequently prosecuted for importation and possession of same and was convicted on March 15, 2019.

On May 31, 2021, the Court of Appeal of Alberta found that although the impact on Mr. Al Askari's Charter-protected rights was serious, other factors outweighed this and the Court was not persuaded to interfere with the conviction.

While testifying, the officer identified IRPA s 139 as the related authority for examination.

Section 139 authorizes a search where an officer believes on reasonable grounds that the person has not revealed their identity, has hidden documents that are relevant to their admissibility, or has documents relevant to human smuggling, human trafficking or document fraud.

The Court found that IRPA section 139 did not authorize the officer’s search of the cell phones. The crown argued that examination authorities under IRPA 16(1) and 16(3) would also have been appropriate in this case but the court ruled that 16(1) would not have been broad enough to have supported the officer’s search of the cell phones.

IRPA 16(1) requires a person making an application to answer all questions truthfully and to produce all relevant evidence and documents that an officer reasonably requires.

The Court also interpreted that paragraph 16(3) now requires reasonable suspicion relating to the individual’s identity or inadmissibility before a PDD can be initiated.

IRPA 16(3) enables an officer to obtain any evidence (photographic, fingerprint or otherwise) from a permanent resident or foreign national if it may be used to establish their identity or compliance with the Act.

Mitigation measures for Alberta and Ontario

In order to continue intercepting prohibited materials on personal digital devices (PDD), Canada Border Services Agency (CBSA) officers in Alberta and Ontario need to use an alternate examination authority [Customs Act (CA) 99(1)(e); began on April 29]. This will remain in place until such time as a new legislative framework is in place.

This interim measure ensures that officers have the ability to examine personal digital devices within limited parameters to preserve the integrity of Canada’s border and that the Charter rights of travellers continue to be protected.

CA 99(1)(e) requires that officers meet the higher threshold of reasonable grounds to suspect that a contravention of border laws exists prior to undertaking an exam. This authority more typically requires a particularized suspicion of the infraction in question (in other words, the officer has a good idea of what contravention they are likely to find). Importantly, this examination authority is strictly limited to documentary contraventions on the device (in other words, the document itself must be prohibited). As such, any evidence of contraventions (messages discussing hidden narcotics, receipts indicating undeclared jewellery, etc.) would not be a permissible search, nor would they be able to be used as evidence if found unintentionally.

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International comparison

Personal digital device (PDD) examination practices differ among Border Five (B5) partners.

Border examination criteria must to be considered within each country’s legislative, regulatory, constitutional and policy frameworks (which then inform that country’s emerging jurisprudence).

Australia

No-threshold examination authorities for all goods, including PDDs.

New Zealand

In 2018, New Zealand amended its legislation to add threshold requirements that must be satisfied before a digital device examination can take place^{Footnote 2}:

• An “initial” search of an electronic device is permitted if an officer has “reasonable cause to suspect” that the person in possession of the device has been or is about to be involved in the commission of relevant offending
• A “full search” of an electronic device is permitted if an officer has “reasonable cause to believe” the device contains evidence relating to relevant offending
• “Relevant offending” is defined to include import or export of prohibited goods, unlawful import or export of goods, and offences under the Customs Act

United Kingdom

No-threshold examination authorities under its Customs Act and terrorism-related legislation for all goods, including PDDs.

United States

No-threshold examination authorities for PDD exams.

By policy, US Customs and Border Protection (CBP) has differentiated exams between ‘basic’, which are no-threshold and ‘advanced’ (tech-assisted) which require reasonable suspicion. Some jurisdictions have case law in this regard but the policy is applied nationally for consistency.

Additional non-legislative measures underway

Regulatory elements

Enabling authority: Customs Act subsection 99.4(a) New

Designation by President

The President may designate any officer or class of officers for the purposes of subsection (1).

Regulatory provision: Notetaking requirements for personal digital devices (PDD) exams

Draft regulatory language

Notetaking

For the purposes of section 99.01 of the Act, an officer who examines a document that is stored on a personal digital device must take note of the following information:

1. the date and time that the examination started and ended
2. the steps taken by the officer so that only documents stored on the device were accessible during the examination
3. the basis for the examination
4. a description of the personal digital device
5. the manner in which the examination was conducted, including whether it was conducted manually or with the assistance of technology
6. the type of document examined
7. the applications accessed

Purpose of amendment

To prescribe how officers must notate (at minimum) the examination of a PDD.

This change will prescribe elements of existing policy elements in regulation. Associated penalties for non-compliance may be established in the future, outside of the regulatory framework. The intent is to include specific PDD examination details which must be recorded in an officer’s notebook.

Explanatory notes

The notetaking requirements prescribe existing policy elements in regulation. Any associated penalties for non-compliance may be established in the future, outside of the regulatory framework.

The regulation includes specific details for all officers who are eligible to conduct a PDD examination in an officer’s notebook. The notetaking controls are relevant not only for responding to the Court’s declaration of constitutional invalidity but also in demonstrating Charter compliance in future challenges.

Regulatory provision: Disabling of network connectivity

Draft regulatory language

Examination of documents

For the purposes of section 99.01 of the Act, prior to examining a document stored on a personal digital device an officer must take the necessary steps so that only documents that are stored on the device are accessible during the examination.

Purpose of amendment

This new regulatory element will formalize the existing internal policy requirement for officers to disable network connectivity prior to conducting a PDD examination. By doing so it will demonstrate the Agency’s commitment to ensuring that only goods crossing the border (in other words, not stored / accessed remotely) are subject to examination, thereby increasing public trust. Within internal policy officers have already been required to only access data that is stored on a traveller’s digital device and not access any data stored remotely (in other words, cloud). In order to prevent accessing remote data, officers will be required to deactivate the PDD’s network connectivity before beginning the exam. A key piece to ensure compliance with this regulation is for officers to note that they were able to deactivate network connectivity in their notebooks.

Explanatory notes

Officers who meet requirements and are considered designated are required to disable network connectivity on PDDs prior to conducting an examination. This regulation prescribes existing policy requirement into regulatory requirements.

The program area will update job aids to ensure that officers are aware of how to disable network connectivity on a variety of different smartphones and other devices. By formalizing this in regulation it will demonstrate the Agency’s commitment to ensuring that only goods crossing the border (in other words, not stored / accessed remotely) are subject to examination, thereby increasing public trust.

Implementation of personal digital device changes

The Canada Border Services Agency (CBSA) is in the process of updating its internal and external materials with respect to the legislative and regulatory changes to personal digital device (PDD) examinations. The implementation of these changes is organized into four categories:

• Training and job aids
• Internal policy
• Other internal products
• External communications products

The CBSA is also in the process of updating the training materials it provides to United States (US) preclearance officers to incorporate legislative changes to the treatment of PDDs.

Training and job aids

The CBSA’s web-based training, “Examination of Digital Devices”, is being updated to ensure it complies with the new legislation and regulations. This training is mandatory for all officers but is available to all CBSA employees. The completion of this training will be the key requirement in order for CBSA officers to be considered designated to complete PDD examinations, per the new legislative framework.

In addition, updates will be made to existing job aids developed to help officers perform PDD examinations. All updates to training and job aids will be completed prior to royal assent.

Under the Agreement on Land, Rail, Marine and Air Preclearance (LRMA), training must be provided to preclearance officers on laws pertaining to preclearance within 60 days of their deployment to Canada. POs first take part in online training, and then attend a webinar to further apply the concepts learned.

The CBSA had already designed and implemented this training for all the US preclearance officers who were in Canada when the LRMA was ratified, as well as for each of the newly arriving preclearance officers who deploy to Canada on an ongoing basis. Training provided by CBSA to US preclearance officers will be updated to include a section on the searching of personal digital devices to ensure it complies with the new legislation.

Preclearance officers working within Canada who have already completed the original training will only be required to take part in the updated training on the treatment of PDDs. Newly arriving US preclearance officers to Canada will be required to take part in the entire newly updated training regimen.

Internal policy

Changes to the internal CBSA policy are required to ensure consistency with updated legislation and new regulations. This policy is situated within the CBSA Enforcement Manual which supports and guides officers and other CBSA employees in the execution of their duties. All updates to the internal policy will be completed prior to royal assent.

Other internal products

In order to support frontline staff, the CBSA publishes internal notices in the form of operational bulletins and shift briefing bulletins. These notices advise officers and frontline staff of any policy and procedural changes. Notices will be issued, as necessary, leading up to the implementation of new legislation and regulations.

The CBSA’s intranet has a page containing PDD examination resources. The content will be reviewed and updated to ensure all language used is consistent with the internal policy, training, and job aids. All updates to other internal products will be completed prior to royal assent, or upon royal assent, depending on the material.

External communications products

The CBSA’s external website has a page dedicated to information on PDD examinations at the Canadian border. It is used to advise the public on what to expect when arriving at the border and when being examined by an officer. Updates will be required to ensure consistency with the above products and with the new legislation and regulations.

Communications products are being drafted in order to advise the public and the media of the new legislation and regulations. These products will be used for proactive updates to social media, responses to media inquiries, and any media briefings.

Public Safety communications products are also being drafted in order to advise the public and the media of the new legislation and regulations.

Ministerial directions under the Preclearance Act, 2016

Amendments to the Preclearance Act, 2016 propose two new authorities by which to establish legally-binding requirements for U.S. preclearance officers to follow when examining, searching, or detaining a traveller’s personal digital device (PDD). The Governor in Council will be authorized to make regulations for this purpose. Additionally, the Minister of Public Safety will be authorized to establish requirements by way of ministerial directions.

Relative to the regulatory process, Ministerial directions can be made and implemented quickly and are therefore an important tool with which to manage emergent U.S. personal digital device search practices, if necessary. To draw a comparison with CBSA operations, the Government of Canada cannot issue policies or standards of practice that are enforceable on U.S. preclearance officers.

In the context under which the U.S. undertakes preclearance in Canada, ministerial directions may also be appropriately used to test requirements before they are eventually codified in regulations. Furthermore, they could be used to put in place temporary requirements that the U.S. is legally bound to comply with but that, due to their temporary nature, may not be suitable for regulatory codification.

The ability to establish requirements through ministerial direction is not in intended to supplant establishing requirements in regulations. Indeed, requirements made by ministerial direction will only have effect for a maximum of one year, and if needed, can only be extended one time for an additional one year maximum period. As such, the Government’s intent is to codify in regulations any requirement intended to be permanent.

Consultations with the U.S. about the legally-binding requirements that will apply to preclearance officers were begun at the introduction of this bill. Once consultations are complete and requirements finalized, it is the Government’s intent to bring then into force soon as possible after amendments to the Preclearance Act, 2016 come into force. The most expedient way to accomplish this will be through the use of ministerial directions. Following this, regulations would be recommended to the Governor in Council to codify requirements which, once made, would supersede those made by ministerial direction.

Clause-by-clause analysis

Customs Act

Clause 1

New section 99.01 of the Customs Act is added to specify authority and requirements to examine documents on personal digital devices.

Clause 2

This clause amends paragraph 99.4(a) of the Customs Act to add that the Governor in Council may make regulations respecting the examination of documents under 99.01(1). The previous paragraph 99.4(a) has been amended and is now 99.4.

Clause 3

Subsection 110(3.1) is added following subsection 110(3) of the Customs Act. This addition authorizes officers to make an electronic copy of a record or document when the seizure of anything on which the original record or document is stored could degrade the record/document or make it unusable as evidence.

Clause 4

The English version of subsection 111(1) of the Customs Act is amended to include the authority to make and seize electronic copies as evidence with respect to search warrants issued by a justice of the peace.

Subsection 111(2) of the Customs Act is amended to remove the requirement for judicial endorsement for out-of-province warrants. This is replaced with the authority to have warrants executed under subsection (1) anywhere in Canada.

The English version of subsection 111(3)(c) of the Customs Act is amended to specify the inclusion of records or documents in any form.

Subsection 111(3.1) is added following subsection 111(3) of the Customs Act. This addition authorizes officers to make an electronic copy of a record or document when the seizure of anything on which the original record or document is stored could degrade the record/document or make it unusable as evidence.

Subsection 111(8) is added following subsection 111(7) of the Customs Act to specify that a warrant may be sought by means of telecommunication.

Clause 5

This clause amends subsection 115(1) of the Customs Act to specify that copies in any form—including electronic copies—when duly certified, have the same evidentiary value as the originals.

Clause 6

This clause amends section 160.1 of the Customs Act by making hindering a hybrid offence, and by aligning its punishment provisions with a similar offence in the Immigration and Refugee Protection Act.

Clause 7

This clause amends section 163 of the Customs Act to align the limitation period in the Customs Act for proceedings by way of summary conviction with similar provisions in the Income Tax Act.

Preclearance Act, 2016

Clause 8

This clause amends paragraph 20(1)(d) of the French version of the Preclearance Act, 2016 to change the wording of “donner son identité” to provide greater consistency between the French and English versions of the Act.

Clause 9

New section 20.1 of the Preclearance Act is added to specify authority for United States preclearance officers to examine, search or detain documents stored on a personal digital device in a preclearance area for the purpose of conducting preclearance. Preclearance officers may exercise this authority if they have a reasonable general concern that, in respect of documents, there exists a contravention, or evidence of a contravention, of United States border related laws before a document can be examined, searched or detained.

Clause 10

This clause amends paragraph 27(2)(a) of the French version of the Preclearance Act, 2016 to change the wording of “donner son identité” to provide greater consistency between the French and English versions of the Act.

Clause 11

This clause amends paragraph 28(1)(a) of the French version of the Preclearance Act, 2016 to change the wording of “donner son identité” to eliminate ambiguity in terms of legislative intent and provide greater consistency between the French and English versions of the Act.

Clause 12

New section 28.1 of the Preclearance Act, 2016 is added to specify authority for United States preclearance officers to examine, search or detain documents stored on a personal digital device in a preclearance perimeter for the purpose of conducting preclearance or for the purpose of maintaining security of, or control over, the Canada-United States border. A preclearance officer may exercise this authority if they have a reasonable general concern that, in respect of documents, there exists a contravention, or evidence of a contravention, of United States border related laws before a document can be examined, searched or detained.

Section 28.1 also specifies that these authorities must be exercised in accordance with regulations or any directions given by the Minister of Public Safety, clarifies that preclearance officers have the power to detain a device on which a document is stored, and lists circumstances under which section 28.1 does not apply.

Clause 13

This clause amends paragraph 31(2)(a) of the French version of the Preclearance Act, 2016 to change the wording of “donner son identité” to provide greater consistency between the French and English versions of the Act.

Clause 14

This clause amends paragraph 32(1)(a) of the French version of the Preclearance Act, 2016 to change the wording of “donner son identité” to provide greater consistency between the French and English versions of the Act.

Clause 15

This clause amends subsection 34(1) of the Preclearance Act, 2016 and authorizes a preclearance officer to seize, or accept as detained, documents detained under either section 20.1 or section 28.1.

Clause 16

This clause amends paragraph 43(1), by adding paragraph 43(1)(c.1), to authorize the Governor in Council to make regulations respecting examinations, searches and detentions conducted under section 20.1 or 28.1

Clause 17

New section 45.1 of the Preclearance Act is added to specify authority for the Minister of Public Safety to give directions respecting the examinations, searches and detentions authorized under 20.1 or 28.1 of the Act.

Furthermore, the section exempts such directions from the requirements of the Statutory Instrument Act, requires that the directions be published in the Canada Gazette within 60 days, establishes terms and timeframes within which the directions will be in effect, and provides that regulations prevail to the extent that they may be in conflict with a direction given by the Minister.