Preclearance in Canada Regulations (SOR/2019-183)

Definitions

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act

Act means the Preclearance Act, 2016. (Loi)

Minister

Minister, in relation to a preclearance area or preclearance perimeter, means the Minister with the authority to designate that preclearance area or preclearance perimeter under sections 6 to 8 of the Act. (ministre)

operator

operator means an entity, other than the Government of Canada or the Government of the United States, responsible for the operation of a facility and includes a terminal operator. (exploitant)

Preclearance Area

Marginal note:Authorized persons

• 2 (1) For the purposes of paragraph 17(d) of the Act, the following persons may enter a preclearance area:

  • (a) the holder of an access pass — issued under these Regulations by or under the authority of an operator of a facility and entitling the holder to have access during a specified period to the preclearance area — who must enter the preclearance area in order to perform the functions of their employment;

  • (b) a person who is authorized by the preclearance officer to enter the preclearance area;

  • (c) a person who is authorized to administer or enforce Canadian law who must enter the preclearance area for that purpose; and

  • (d) a provider of emergency services who must enter the preclearance area in the performance of their duties.

• Marginal note:Notification and surveillance

  (2) For the purposes of paragraph 17(e) of the Act, the operator of a facility must

  • (a) in the case of a person that they have authorized to enter the preclearance area in order to perform urgent repair, notify a preclearance officer of that entry and ensure the constant surveillance of the person while they are in the area; and

  • (b) in the case of any other person that they have authorized to enter the preclearance area, give a preclearance officer reasonable notice of the entry and ensure the constant surveillance of the person while they are in the area.

Access Clearance

Marginal note:Application — eligibility

2.01 A person is eligible to submit an application for access clearance if the following conditions are met:

• (a) they are employed and must, in accordance with paragraph 2(1)(a), enter a preclearance area to perform the functions of their employment or is applying for such employment;

• (b) they have

  • (i) no judicial record of a conviction in the five years prior to the date of application, for an offence committed in Canada referred to in Schedule 1, unless a record suspension has been ordered for that offence, and no outstanding charge in respect of such an offence,

  • (ii) no judicial record of a conviction, in the 10 years prior to the date of application, for an offence committed in Canada referred to in Schedule 2, unless a record suspension has been ordered for that offence, and no outstanding charge in respect of such an offence, or

  • (iii) no judicial record of a conviction for an offence committed in the United States in the five or 10 years prior to the date of application that, if it had occurred in Canada, would constitute an offence referred to in subparagraph (i) or (ii), respectively, unless the equivalent of a record suspension has been ordered for that offence, and no outstanding charge in respect of such an offence;

• (c) in the case where they hold a valid access clearance, that clearance expires within 12 months after the date of application;

• (d) in the case where they must access a restricted area set out by or under an Act of Parliament in order to enter a preclearance area, or must enter a preclearance area that overlaps a restricted area, they have the relevant security clearance to enter the restricted area or have applied for that clearance; and

• (e) a security clearance referred to in paragraph (d) or an access clearance granted to them under these Regulations is not suspended on the date of the application or was not revoked in the five years prior to the date of the application and no application in respect of that security clearance or access clearance has been refused during that period.

Marginal note:Required information and documents

• 2.02 (1) An application for access clearance must include the following information and documentation:

  • (a) the applicant’s usual given name, other given names, surname, all other names used and details of any name changes;

  • (b) the applicant’s date of birth, gender, height and eye colour;

  • (c) if the applicant was born in Canada, the number and province of issue of their birth certificate and a copy of that certificate;

  • (d) if the applicant was born outside Canada, their place of birth, the port and date of entry into Canada, and, in the case of a naturalized Canadian or permanent resident, the number, date of issue and a copy of the applicable certificate issued under the Citizenship Act or the Immigration and Refugee Protection Act;

  • (e) in the case of a foreign national,

    • (i) a copy of any document that is evidence of their status in Canada, and

    • (ii) a copy of the applicant’s judicial record for the five years prior to the date of application, except where a record suspension or its equivalent has been ordered;

  • (f) the number, country of issue and expiry date of the applicant’s passport, or an indication that the applicant does not have a passport;

  • (g) the addresses of all locations at which the applicant resided during the five years preceding the date of application;

  • (h) an identification of the applicant’s activities during the five years preceding the date of application, including the names and street addresses of the applicant’s employers and any post-secondary educational institutions attended;

  • (i) the dates, destination and purpose of any travel of more than 90 days outside Canada or the United States, excluding travel for government business, during the five years preceding the date of application;

  • (j) the information referred to in subsection (2) respecting the applicant’s spouse or common-law partner and, if applicable, any former spouses or common-law partners;

  • (k) the applicant’s facial image and fingerprints, taken by the operator or the Minister;

  • (l) a statement signed by the person responsible for taking the applicant’s facial image and fingerprints of the applicant certifying that, at the time of the taking of the facial image and fingerprints, they confirmed the identity of the applicant by means of a valid photo-bearing identification issued by the Government of Canada, the government of any province, territory or municipality in Canada or a valid passport;

  • (m) an attestation signed by the applicant indicating that they meet the condition set out in paragraph 2.01(b); and

  • (n) a statement signed by or on behalf of the operator certifying that the applicant meets the conditions set out in paragraphs 2.01(a), (c) and (d).

• Marginal note:Spouse or common-law partner

  (2) The information required with respect to any of the persons referred to in paragraph (1)(j) must be

  • (a) in the case of the applicant’s spouse or common-law partner

    • (i) their gender, full given name, surname and, if applicable, surname at birth,

    • (ii) their date and place of birth and, if applicable, date of death,

    • (iii) if they were born in Canada, the number and province of issue of their birth certificate,

    • (iv) if they were born outside Canada, their place of birth, their nationality and the port and date of entry into Canada, and

    • (v) their present address, if known; and

  • (b) in the case of former spouses and common-law partners with whom the relationship ended within the preceding five years, the information referred to in subparagraphs (a)(i), (ii) and (v).

• Marginal note:Signature

  (3) The application for access clearance is valid only if signed by the applicant or, in the case of an applicant who is a minor under the laws of the province where they reside, by a parent, guardian or tutor.

• Marginal note:Definition of common-law partner

  (4) In this section, common-law partner means any person who is cohabiting with the applicant in a relationship of a conjugal nature and has done so for a period of at least one year.

Marginal note:Submission

2.03 An applicant must submit their application for access clearance in a manner specified by the Minister.

Admissibility of Applications

Marginal note:Inadmissibility

• 2.04 (1) The Minister may determine an application to be inadmissible if it does not contain the information or documents set out in section 2.02 or if it is submitted by an applicant who does not meet the conditions set out in section 2.01.

• Marginal note:Notice

  (2) When the Minister determines an application for access clearance to be inadmissible, the Minister must notify the applicant in writing of the determination, including any reasons for the determination.

• Marginal note:Outstanding charge

  (3) If the application is inadmissible because the applicant has an outstanding charge for an offence referred to in paragraph 2.01(b), the notice must specify that the applicant may present a new application after the charge has been disposed of otherwise than by a conviction.

Minister’s Decision

Marginal note:Granting

• 2.05 (1) The Minister may grant access clearance to a person who submits an application that is admissible if the Minister has no reasonable grounds to suspect that the person poses a risk to border security and integrity.

• Marginal note:Factors to consider

  (2) In making a decision under subsection (1), the Minister must consider the relevant factors in assessing the risks to border security and integrity, including

  • (a) the safety and security of persons in the preclearance area;

  • (b) the safety and security of a conveyance destined for the United States, its passengers and persons operating and maintaining the conveyance;

  • (c) the integrity of measures designed to prevent unauthorized entry of persons or goods into a preclearance area;

  • (d) the ability of a preclearance officer to exercise their powers and the performance of duties and functions;

  • (e) the ability of a border services officer to exercise their powers and the performance of duties and functions;

  • (f) the history of the applicant’s involvement in

    • (i) acts of violence against persons or property,

    • (ii) any activity of a criminal organization, criminal activity or offence related to border security, including trafficking in a controlled substance, firearms, counterfeit goods or currency, trafficking in or smuggling of persons, and terrorism, and

    • (iii) any transnational criminality, including cybercrime, economic crimes or criminal activity involving the use of a computer;

  • (g) the applicant’s association with a person who is known to be involved in activities or is a member of a group set out in paragraph (f); and

  • (h) any reasonable grounds to suspect that the applicant may be induced to commit an act or to assist or abet any person to commit an act that might constitute a risk to border security and integrity.

Marginal note:Refusal — fraudulent, false or misleading information

• 2.06 (1) The Minister may refuse to grant access clearance if the Minister has reasonable grounds to believe that, in the five years prior to the date of application, the applicant has submitted fraudulent, false or misleading information in an application for access clearance or security clearance with the Government of Canada.

• Marginal note:Refusal — unreliable or insufficient information

  (2) The Minister may refuse to grant access clearance if, in the opinion of the Minister, the information available to the Minister is not verifiable, reliable or sufficient to determine the risk to the security and integrity of the border.

Marginal note:Notice — intention

• 2.07 (1) If the Minister intends to refuse to grant access clearance, the Minister must notify the applicant in writing.

• Marginal note:Written representations

  (2) The notice must set out the reasons for the Minister’s intention and provide the applicant with an opportunity to make written representations to the Minister within a specified period that is not less than 20 days after the day on which the notice is sent.

• Marginal note:Consideration

  (3) The Minister must not refuse to grant access clearance until the written representations have been received and considered or until the end of the period fixed in the notice, whichever comes first.

• Marginal note:Notice — refusal

  (4) The Minister must notify the applicant in writing of a refusal.

Marginal note:Notice — granting

• 2.08 (1) The Minister must notify the applicant or the operator of a decision to grant access clearance and specify its expiry date.

• Marginal note:Validity period

  (2) An access clearance is valid until the end of the five-year period from the day on which the verifications set out in section 2.11 have concluded or, if applicable, the expiry date of the security clearance referred to in paragraph 2.01(d), whichever is earlier.

• Marginal note:Operator — information sharing

  (3) The Minister must provide an operator with the information necessary to control access to the preclearance area.

Marginal note:Access clearance — suspension

• 2.09 (1) The Minister may suspend access clearance on receipt of information that could change the Minister’s determination to grant access clearance to a preclearance area.

• Marginal note:Notice — suspension

  (2) Immediately after suspending an access clearance, the Minister must notify the holder in writing of the suspension.

• Marginal note:Written representations

  (3) The notice must set out the reasons for the suspension and provide the holder with an opportunity to make written representations to the Minister within a specified period that is not less than 20 days after the day on which the notice is sent.

• Marginal note:Reinstatement

  (4) The Minister may reinstate the access clearance if there are no reasonable grounds to suspect that the holder poses a risk to border security and integrity.

• Marginal note:Suspension — effect

  (5) If an access clearance is suspended and subsequently reinstated, the end of the validity period remains the same as that established at the time of its issue.