An Act to amend the Customs Act and to make related amendments to other Acts (S.C. 2001, c. 25)
Full Document:
Assented to 2001-10-25
59. (1) Paragraph 99(1)(a) of the French version of the Act is replaced by the following:
a) tant qu’il n’y a pas eu dédouanement, examiner toutes marchandises importées et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi qu’en prélever des échantillons en quantités raisonnables;
(2) Paragraph 99(1)(b) of the Act is replaced by the following:
(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(3) Paragraph 99(1)(c) of the French version of the Act is replaced by the following:
c) tant qu’il n’y a pas eu exportation, examiner toutes marchandises déclarées conformément à l’article 95 et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi qu’en prélever des échantillons en quantités raisonnables;
(4) Subsection 99(1) of the Act is amended by adding the following after paragraph (c):
(c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
Marginal note:1988, c. 65, s. 79
(5) Paragraphs 99(1)(d) to (f) of the French version of the Act are replaced by the following:
d) examiner les marchandises au sujet desquelles il soupçonne, pour des motifs raisonnables, qu’il y a eu une erreur de classement tarifaire, de valeur en douane ou d’indication quantitative dans la déclaration en détail ou la déclaration provisoire dont elles ont fait l’objet conformément à l’article 32 ou pour lesquelles est demandé un remboursement ou un drawback en vertu de la présente loi ou du Tarif des douanes, ainsi qu’en prélever des échantillons en quantités raisonnables;
d.1) examiner les marchandises au sujet desquelles il soupçonne, pour des motifs raisonnables, qu’il y a eu une erreur sur leur origine dans la déclaration en détail ou la déclaration provisoire dont elles ont fait l’objet conformément à l’article 32, ainsi qu’en prélever des échantillons en quantités raisonnables;
e) examiner les marchandises dont il soupçonne, pour des motifs raisonnables, qu’elles ont donné ou pourraient donner lieu à une infraction soit à la présente loi, soit à toute autre loi fédérale à l’égard de laquelle il a des fonctions d’exécution ou de contrôle d’application, soit aux règlements d’application de ces lois, ainsi qu’en ouvrir ou faire ouvrir tous colis ou contenants;
f) s’il soupçonne, pour des motifs raisonnables, qu’un moyen de transport ou que les marchandises se trouvant à son bord ont donné ou pourraient donner lieu à une infraction visée à l’alinéa e), immobiliser le moyen de transport, monter à son bord et le fouiller, examiner les marchandises et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi que faire conduire le moyen de transport à un bureau de douane ou à tout autre lieu indiqué pour ces opérations.
(6) Subsections 99(2) and (3) of the Act are replaced by the following:
Marginal note:Exception for mail
(2) An officer may not open or cause to be opened any mail that is being imported or exported and that weighs thirty grams or less unless the person to whom it is addressed consents or the person who sent it has completed and attached to the mail a label in accordance with article RE 601 of the Letter Post Regulations of the Universal Postal Convention.
Marginal note:Exception for mail
(3) An officer may cause imported mail, or mail that is being exported, that weighs thirty grams or less to be opened in his or her presence by the person to whom it is addressed, the person who sent it or a person authorized by either of those persons.
60. The Act is amended by adding the following after section 99:
Marginal note:Power to stop
99.1 (1) If an officer has reasonable grounds to suspect that a person has entered Canada without presenting himself or herself in accordance with subsection 11(1), the officer may stop that person within a reasonable time after the person has entered Canada.
Marginal note:Powers of officer
(2) An officer who stops a person referred to in subsection (1) may
(a) question the person; and
(b) in respect of goods imported by that person, examine them, cause to be opened any package or container of the imported goods and take samples of them in reasonable amounts.
Marginal note:Search of persons
99.2 (1) An officer may search any person leaving a customs controlled area, other than a prescribed person or a member of a prescribed class of persons who may be searched under subsection (2), if the officer suspects on reasonable grounds that the person has secreted on or about their person anything in respect of which this Act or the regulations have been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or the regulations or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.
Marginal note:Search of prescribed persons
(2) An officer may, in accordance with the regulations, search any prescribed person or member of a prescribed class of persons leaving a customs controlled area.
Marginal note:Person taken before senior officer
(3) An officer who is about to search a person under this section shall, on the request of the person, immediately take that person before the senior officer at the place where the search is to be conducted.
Marginal note:Review by senior officer
(4) A senior officer before whom a person is taken by an officer shall, if the senior officer agrees with the officer that under subsection (1) or (2), as the case may be, the person may be searched, direct that the person be searched or, if the senior officer does not so agree, discharge the person.
Marginal note:Limitations on searches
(5) No person may be searched by an officer who is not of the same sex and, if there is no officer of the same sex at the place at which the search is to be conducted, an officer may authorize any suitable person of the same sex to conduct the search.
Marginal note:Non-intrusive examination of goods
99.3 (1) An officer may, in accordance with the regulations and without individualized suspicion, conduct a non-intrusive examination of goods in the custody or possession of a person leaving a customs controlled area.
Marginal note:Other examination of goods
(2) An officer may examine any goods in the custody or possession of a person leaving a customs controlled area and open or cause to be opened any baggage, package or container and take samples of the goods in reasonable amounts, if the officer suspects on reasonable grounds that this Act or any other Act of Parliament administered or enforced by the officer or any regulations made under it have been or might be contravened in respect of the goods.
Marginal note:Examination of abandoned goods
(3) An officer may, at any time, open or cause to be opened, inspect and detain any baggage, package or container found abandoned in a customs controlled area.
Marginal note:Regulations
99.4 The Governor in Council may make regulations
(a) prescribing persons or classes of persons who may be searched under subsection 99.2(2);
(b) respecting, for the purposes of subsection 99.2(2), the circumstances and manner in which searches are to be conducted and the types of searches that may be conducted; and
(c) respecting, for the purposes of subsection 99.3(1), the manner in which examinations are to be conducted and the machines, instruments, devices or other apparatuses or classes of machines, instruments, devices or apparatuses that may be used to conduct examinations.
Marginal note:1992, c. 28, s. 25(1); 1995, c. 41, ss. 27, 28; 1999, c. 17, s. 124
61. Sections 107 and 108 of the Act are replaced by the following:
Marginal note:Definitions
107. (1) The definitions in this subsection apply in this section.
“customs information”
« renseignement douanier »
“customs information” means information of any kind and in any form that
(a) relates to one or more persons and is obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff; or
(b) is prepared from information described in paragraph (a).
“official”
« fonctionnaire »
“official” means a person who
(a) is or was employed in the service of Her Majesty in right of Canada or of a province;
(b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or
(c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province.
“specified person”
« personne déterminée »
“specified person” means a person who is employed in the service of, who occupies a position of responsibility in the service of, or who is engaged by or on behalf of, Her Majesty in right of Canada to carry out the provisions of this Act, the Customs Tariff or the Special Import Measures Act. It includes a person who was formerly so employed or engaged or who formerly occupied such a position.
Marginal note:Prohibition — provision or use of customs information
(2) Except as authorized under this section, no person shall
(a) knowingly provide, or allow to be provided, to any person any customs information;
(b) knowingly allow any person to have access to any customs information; or
(c) knowingly use customs information.
Marginal note:Authorized use of customs information by official
(3) An official may use customs information for the purposes of administering or enforcing this Act, the Customs Tariff, the Special Imports Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act or for any purpose set out in subsection (4), (5) or (7).
Marginal note:Authorized provision of information
(4) An official may provide, allow to be provided or provide access to customs information if the information
(a) will be used solely in or to prepare for criminal proceedings commenced under an Act of Parliament;
(b) will be used solely in or to prepare for any legal proceedings relating to the administration or enforcement of an international agreement relating to trade, this Act, the Customs Tariff, the Special Import Measures Act, any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty or Part 2 of the Proceeds of Crime (Money Laundering) Act, before
(i) a court of record, including a court of record in a jurisdiction outside Canada,
(ii) an international organization, or
(iii) a dispute settlement panel or an appellate body created under an international agreement relating to trade;
(c) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Canada Pension Plan, the Customs Tariff, the Employment Insurance Act, the Excise Act, the Excise Tax Act, the Export and Import Permits Act, the Income Tax Act, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act by an official of the Agency;
(d) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Excise Act or the Export and Import Permits Act by a member of the Royal Canadian Mounted Police;
(e) may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual or to the environment in Canada or any other country;
(f) will be used solely for a purpose relating to the supervision, evaluation or discipline of a specified person by Her Majesty in right of Canada in respect of a period during which the person was employed or engaged by, or occupied a position of responsibility in the service of, Her Majesty in right of Canada to administer or enforce this Act, the Customs Tariff, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act to the extent that the information is relevant for that purpose;
(g) is reasonably regarded by the official to be information that does not directly or indirectly identify any person; or
(h) is reasonably regarded by the official to be information relating to the national security or defence of Canada.
Marginal note:Provision of information to certain persons
(5) An official may provide, allow to be provided or provide access to customs information to the following persons:
(a) a peace officer having jurisdiction to investigate an alleged offence under any Act of Parliament or of the legislature of a province subject to prosecution by indictment, the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged offence may be taken, if that official believes on reasonable grounds that the information relates to the alleged offence and will be used in the investigation or prosecution of the alleged offence, solely for those purposes;
(b) a person that is otherwise legally entitled to the information by reason of an Act of Parliament, solely for the purposes for which that person is entitled to the information;
(c) an official solely for the purposes of developing, administering or enforcing an Act of Parliament or developing or implementing a policy related to an Act of Parliament if the information relates to
(i) goods, the importation, exportation or in-transit movement of which is or may be prohibited, controlled or regulated under that Act,
(ii) a person who that official has reasonable grounds to believe may have committed an offence under that Act in respect of goods imported or exported by that person, or
(iii) goods that may be evidence of an offence under that Act;
(d) an official, solely for the purpose of administering or enforcing an Act of the legislature of a province, if the information relates to goods that are subject to import, in-transit or export controls or taxation upon importation into the province under that Act;
(e) an official of a participating province, as defined in subsection 123(1) of the Excise Tax Act, or an official of the province of Quebec, if the information relates to the administration or enforcement of Part IX of that Act in that province, solely for that purpose;
(f) an official solely for the purpose of the formulation or evaluation of fiscal or trade policy or the development of a remission order under an Act of Parliament;
(g) an official solely for the purpose of setting off, against any sum of money that may be due to or payable by Her Majesty in right of Canada, a debt due to
(i) Her Majesty in right of Canada, or
(ii) Her Majesty in right of a province on account of taxes payable to the province if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province;
(h) counsel, as defined in subsection 84(4) of the Special Import Measures Act, in accordance with subsection 84(3) of that Act and subject to subsection 84(3.1) of that Act, except that the word “information” in those subsections is to be read as a reference to the words “customs information”;
(i) an official of the Department of Human Resources Development solely for the purpose of administering or enforcing the Employment Insurance Act, if the information relates to the movement of people into and out of Canada;
(j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration Act, if the information relates to the movement of people into and out of Canada;
(k) an official of the Financial Transactions and Reports Analysis Centre of Canada solely for the purpose of administering or enforcing the Proceeds of Crime (Money Laundering) Act;
(l) a person solely for the purpose of determining any entitlement, liability or obligation of the person under this Act or the Customs Tariff including the person’s entitlement to any refund, relief, drawback or abatement under those Acts;
(m) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record in Canada;
(n) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record outside of Canada, solely for the purposes of criminal proceedings; and
(o) prescribed persons or classes of persons, in prescribed circumstances for prescribed purposes, solely for those purposes.
Marginal note:Provision of customs information by Minister
(6) The Minister may provide, allow to be provided or provide access to customs information to any person if
(a) the information may not otherwise be provided, allowed to be provided or provided access to under this section and, in the Minister’s opinion, the public interest in providing the information clearly outweighs any invasion of privacy, or any material financial loss or prejudice to the competitive position of the person to whom the information relates, that could result from the provision of the information; or
(b) in the Minister’s opinion, providing the information would clearly benefit the individual to whom the information relates.
Marginal note:Notification of Privacy Commissioner
(7) If customs information provided under subsection (6) is personal information within the meaning of section 3 of the Privacy Act, the Minister must notify, in writing, the Privacy Commissioner appointed under section 53 of that Act of any provision of personal information under that subsection before its provision if reasonably practicable or, in any other case, without delay after the provision. The Privacy Commissioner may, if the Privacy Commissioner considers it appropriate, notify the individual to whom the information relates of the provision of the information.
Marginal note:Providing customs information to other governments
(8) Customs information may be provided by any person to an official or any other person employed by or representing the government of a foreign state, an international organization established by the governments of states, a community of states, or an institution of any such government or organization, in accordance with an international convention, agreement or other written arrangement between the Government of Canada or an institution of the Government of Canada and the government of the foreign state, the organization, the community or the institution, solely for the purposes set out in that arrangement.
Marginal note:Disclosure of customs information to certain persons
(9) An official may provide, allow to be provided or provide access to customs information relating to a particular person
(a) to that particular person;
(b) to a person authorized to transact business under this Act or the Customs Tariff as that particular person’s agent, at the request of the particular person and on receipt of such fee, if any, as is prescribed; and
(c) with the consent of that particular person, to any other person.
Marginal note:Evidence
(10) Despite any other Act of Parliament or other law, no official may be required, in connection with any legal proceedings, to give or produce evidence relating to any customs information.
Marginal note:Measures to protect customs information
(11) The person presiding at a legal proceeding relating to the supervision, evaluation or discipline of a specified person may order any measure that is necessary to ensure that customs information is not used or provided to any person for any purpose not relating to that proceeding, including
(a) holding a hearing in camera;
(b) banning the publication of the information;
(c) concealing the identity of the person to whom the information relates; and
(d) sealing the records of the proceeding.
Marginal note:Appeal from order to disclose customs information
(12) An order or direction that is made in the course of or in connection with any legal proceeding and that requires an official to give or produce evidence relating to customs information may, by notice served on all interested parties, be immediately appealed by the Minister or by the person against whom the order or direction is made
(a) to the court of appeal of the province in which the order or direction is made, in the case of an order or direction made by a court or other tribunal established under the laws of the province, whether or not that court or tribunal is exercising a jurisdiction conferred by the laws of Canada; or
(b) to the Federal Court of Appeal, in the case of an order or direction made by a court or other tribunal established under the laws of Canada.
Marginal note:Disposition of appeal
(13) The court to which the appeal is taken may allow the appeal and quash the order or direction appealed from or may dismiss the appeal. The rules of practice and procedure from time to time governing appeals to the courts apply, with any modifications that the circumstances require, in respect of the appeal.
Marginal note:Stay
(14) An appeal stays the operation of the order or direction appealed from until judgment in the appeal is pronounced.
Marginal note:Regulations
(15) The Governor in Council may make regulations prescribing the circumstances in which fees may be charged for providing or providing access to customs information or making or certifying copies of information and the amount of any such fees.
Marginal note:Passenger information
107.1 (1) The Minister may, under prescribed circumstances and conditions, require any prescribed person or prescribed class of persons to provide, or provide access to, prescribed information about any person on board a conveyance in advance of the arrival of the conveyance in Canada or within a reasonable time after that arrival.
Marginal note:Disclosure
(2) Any person who is required under subsection (1) to provide, or provide access to, prescribed information shall do so despite any restriction under the Aeronautics Act on the disclosure of such information.
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