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Archived - The new Agreement: What would change and why

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The new Agreement covers all modes of travel, including air, and would replace the existing Air Transport Preclearance Agreement, which was signed in 2001. It would make an important contribution towards ensuring the legitimate flow of trade and travel, while continuing to ensure border security and integrity – efficient and effective cross-border travel and trade are essential for the Canadian and U.S. economies, and for the prosperity of our communities. This single Agreement for all modes would ensure a consistent approach to all preclearance activities, regardless of the mode of transportation. This will make it easier to implement and govern preclearance activities.

Canada and the U.S. have over 60 years of experience in conducting preclearance operations. The lessons we’ve learned enabled us to negotiate an agreement that helps ensure that: both Canadian and U.S. preclearance officers have the authorities they require to effectively carry out their responsibilities; preclearance facilities meet operational requirements; and preclearance operations are generally efficient and effective. 

Potential for new preclearance sites

When it takes effect, the new Agreement will provide a legal framework that will enable the establishment of new preclearance operations in any of the four modes of transportation. It will allow the market to propose operations when and where it makes sense – facilitating trade and travel, and creating economic benefits for Canadians.

When the Agreement enters into force, Canada and the U.S. can consider implementing preclearance operations at new locations in the land, rail and marine modes. New preclearance operations would require approval by both Canada and the U.S.

What changed from the current Air Transport Preclearance Agreement?

There are several significant differences between the two agreements, in addition to the fact that the new agreement covers all modes of transportation, thus opening up new opportunities to facilitate legitimate trade and travel between Canada and the U.S.

As committed to in the Beyond the Border Action Plan, Canada and the U.S. negotiated an agreement that would provide the CBSA and U.S. CBP preclearance officers the authorities necessary to effectively carry out their security, facilitation and inspection process in the other country.

For example, to ensure their security, Canadian and U.S. preclearance officers would be able to carry the same regulated items that host country officers are able to, in the same environment. In Canada this means that U.S. CBP preclearance officers would be able to carry firearms in the land, rail and marine modes, but not when they are conducting preclearance of air passengers. Currently, a Canadian law enforcement officer is on duty during CBP hours of operation and able to assist, if required, in the eight Canadian airports with preclearance operations.

These authorities would be fully reciprocal, meaning that they would apply equally to CBSA officers conducting preclearance in the U.S. and to CBP officers conducting preclearance in Canada.

Other significant differences would be the establishment of a new criminal liability regime to govern the conduct of preclearance officers, and an enhanced Preclearance Consultative Group, which would provide greater rigour and accountability for overseeing the implementation of the Agreement.

Protections and accountability framework

The Agreement would create a new criminal liability regime that would apply to both CBSA and CBP preclearance officers. Generally speaking, the inspecting party would have primary jurisdiction over its preclearance officers for offenses committed in the performance of official duties. Generally speaking, the host country would have primary criminal jurisdiction over acts committed by preclearance officers outside the performance of official duties, including when they are commuting to and from work.

A bi-national council of senior Canadian and U.S. officials would be established and would meet regularly to facilitate and monitor the implementation of the framework.

Would U.S. CBP preclearance officers have the authority to make arrests on Canadian soil?

No, as with the existing Air Transport Preclearance Agreement with the U.S., CBP preclearance officers would not have peace officer status in Canada so could not make arrests. In situations requiring an arrest to be made, the CBP preclearance officer would detain the individual (travellers and non-travellers) until a Canadian law enforcement officer arrives.

Respecting Canadian laws and sovereignty

As is the case under the existing Agreement, Preclearance officers would be required to comply with the laws of the host country while in that country – both when they are on and off duty. This would apply for both CBSA officers working in the U.S. and CBP officers working in Canada.

Under the Agreement, any U.S. preclearance activities in Canada would have to be carried out in a manner consistent with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.

Through the comprehensive approach to preclearance outlined in the Agreement, Canada and the U.S. are seeking to strengthen our relationship and enhance our mutual security, prosperity and economic competitiveness, while ensuring respect for the sovereignty of both nations.

Information Collection and Sharing / Privacy Rights

As is currently the case in Canadian airports with preclearance operations, U.S. CBP preclearance officers would have the authority to collect information from travellers for the purpose of administering U.S. laws, as they apply to preclearance. The same would apply to CBSA officers working in the U.S., who would collect information for the purpose of administering Canadian law, as they apply to preclearance.

Any information sharing would be subject to the Beyond the Border Action Plan Privacy Principles.

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