Border Issues

High Risk Travellers

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• The CBSA has the mandate to investigate, report, arrest and remove all foreign nationals and permanent residents who are inadmissible to Canada.
• A foreign national or a permanent resident may be inadmissible to Canada for a number of reasons, including criminality and organized crime grounds.
• The Inland Enforcement Program of the CBSA will initiate an investigation when it becomes aware of a possible Immigration and Refugee Protection Act (IRPA) violation and will take appropriate enforcement action to ensure that cases involving the highest degree of risk are actioned and that persons whose removal may be imminent are not delayed.
• If the evidence gathered supports the inadmissibility, the CBSA will prepare a report setting out the relevant facts.
• Depending on the type of inadmissibility and the status of the person in question, inadmissibility reports are reviewed by either a CBSA Minister's Delegate or the Immigration Refugee Board (IRB), an independent decision-maker.
• In May 2019, media articles in the Toronto Sun, La Presse, and Le Journal de Montréal reported "400 criminals have recently entered Canada to traffic drugs".
• The CBSA has conducted a thorough examination of its intelligence or report holdings and found nothing that suggests that there are 400 individuals in Canada with links to Mexican cartels.
• In its examination for the time period reported by media outlets, three individuals were identified of having suspected links to cartels. All three individuals have been removed from Canada.

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Investments in Canada's Asylum System

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Latest Asylum Trends

• From January 1, 2019 to October 31, 2019, there have been 52,625 total asylum claims. Overall asylum claim volumes are up by 16% in 2019 compared to the same period in 2018.
• The number of regular asylum claims over the same period increased by 39%, and the number of irregular asylum claims decreased by 20%.
• The total asylum claims made by irregular migrants in 2018 (19,847) were higher than 2017 volumes (18,891). So far, volumes in 2019 compared to the same period last year continue to show a significant decline. The number of RCMP interceptions between ports of entry recorded between January to October 2019 (13,702) is about 20% lower than the number received over the same time period in 2018 (17,120).
• The top three source countries for regular asylum claims in 2019 are India, Iran and Mexico. The top three source countries for irregular claims are Nigeria, Colombia, and Democratic Republic of Congo.

Budget 2019 Investments

• Overall, Budget 2019 invests $1.18 billion over five years, starting in 2019-20, and $55 million per year ongoing, to enhance the integrity of Canada's borders and asylum system.
• These investments support the Border Enforcement Strategy, and increase the asylum system's capacity in order to provide timely protection to refugees and ensure failed asylum claimants are removed, faster.
• This approach has 3 main pillars:
  1. Detect and discourage misuse of Canada's visa system, by preventing travel to Canada by individuals who may not be legitimate temporary visa applicants;
  2. Manage arrivals at the border,while ensuring the safety of Canadians, and maintaining contingency plans in the event of an influx of asylum seekers; and
  3. Invest in the asylum system for a fast, fair and final systemby processing more asylum claims faster and by removing those who do not need Canada's protection.

The In-Canada Asylum System

• Any foreign national can make an asylum claim at a Canadian port of entry or at an inland office of Immigration, Refugees and Citizenship Canada or the Canada Border Services Agency.
• Eligible asylum claims are referred to the Immigration and Refugee Board for an independent assessment of the merits of the individual's claim based on the risks they face in their home country. Factors determining an individual's eligibility to claim asylum, include whether the claimant has committed a serious crime, made a previous claim in Canada or received protection in another country.
• Persons who arrive at a land border port of entry between Canada and the United States may not be eligible to make a claim due to the provisions of the Safe Third Country Agreement unless they qualify for an exception.
• Once an asylum claim has been deemed eligible and referred to the Immigration and Refugee Board, the claimant is eligible for health-care coverage under the Interim Federal Health Program. The federal government takes steps to ensure that irregular asylum claimants are issued coverage in a timely fashion to offset provincial costs for emergency health care.
• The federal government can also issue work permits upon application so that asylum claimants can be self-sufficient while they wait for the Immigration and Refugee Board to render a decision on their claims.
• Once a claim is made, individuals may also apply for social assistance, legal aid, emergency housing, and education. These services are the responsibility of provinces and territories.
• If the Immigration and Refugee Board accepts an individual's asylum claim, he or she receives protected person status and can apply to become a permanent resident of Canada.
• If the Immigration and Refugee Board determines that the asylum claimant is not in need of Canada's protection, the process to remove that individual from Canada is initiated.

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Minors in Canada's Immigration Detention System

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• The detention of a minor under Section A55 of the Immigration Refugee Protection Act (IRPA) is exceptional and a measure of last resort. A detained minor has access to the same legislative scheme under the IRPA that any other foreign national or permanent resident would have and the Federal Court is a bona fide option for recourse related to any immigration proceeding.
• The vast majority of minors at CBSA Immigration Holding Centres (IHCs) are being"housed" with their parent(s) at the request of the parent(s), which has been determined to be in their best interests. Minors being "housed" have the ability to leave the facility at any point in time with the parent(s) consent.
• The CBSA does not separate a minor from their parent unless it is in the best interest of the child (e.g. for their health and safety) and every effort is made to preserve the family unit by finding a reasonable and appropriate alternative to detention or alternative arrangement (for non-detained/housed minors). Where this is not possible and a parent is held in detention, a non-detained child may be "housed" at an Immigration Holding Centre (IHC) with the parent upon the parent's request and consent.
• Where a minor is housed or detained, the CBSA ensures that they have the proper access to programs and services. In accordance with international obligations: minors have access to health care services (e.g. nurse, doctor, psychology and psychiatric supports); outdoor and indoor recreation, which includes a play/game room with toys, books, board games, and proper nutrition (which aligns with Canada's Food Guide) that also caters to special dietary needs (food allergies, halal diet, etc.). Families have separate living and sleeping quarters, washroom and laundry facilities and the IHC readily provides cribs, diapers and other products as needed. Minors that are in IHC facilities for periods in excess of seven (7) days are provided with educational programming.
• CBSA officers have a breadth of experience in interviews to determine the needs of a minor enshrined in the IRPA and in the Immigration and Refugee Protection Regulations. At first contact (with a minor), a detailed report is completed by the officer that includes a Best Interest of a Child (BIOC) assessment. This includes consideration of, on a case by case basis, personal information, a case synopsis, measures that may mitigate detention, and all Alternatives to Detention (ATDs).
• On August 15, 2016, the Government of Canada committed up to $138 million to transform Canada's immigration detention system by investing in IHCs, expanding ATDs and partnerships, and increasing transparency. New and retrofitted IHCs in Surrey and Toronto are scheduled to open in early 2020, and a new IHC in Laval is expected to be completed by fall 2021.
• The CBSA's National Directive for the Detention or Housing of Minors (ND), issued following the Ministerial Direction in 2017, was developed through extensive consultation with key partners, such as the Canadian Council for Refugees, the University of Toronto, the Canadian Red Cross Society and the United Nations High Commission for Refugees.
• Fewer minors were detained or housed with parents or guardians in 2018-2019 (118). This represents a 21.9% decrease compared to 2017-2018 (151) and a 49.1% drop over the past five years (232 in 2014-2015). In 2018-2019, 61% of the minors housed or detained were accompanying a parent/guardian detained on grounds of identity. This can generally be attributed to a constant flow of individuals entering Canada between ports of entry and who may not possess identity documents.
• Quebec region held the majority of minors in FY 2018-2019 (107 minors/91%) of which 10 were detained and 97 housed with a parent or guardian. This is attributable to minors arriving irregularly between ports of entry in Quebec.
• Detention statistics for the years 2012-2019 relating to accompanied and unaccompanied minors are posted publicly on the CBSA website: http://cbsa.gc.ca/security

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National Security Screening

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• The Canada Border Services Agency's (CBSA) Immigration Security Screening Program is responsible for screening temporary and permanent resident applicants, including refugees from abroad selected for resettlement by Immigration, Refugees and Citizenship Canada (IRCC). The CBSA also conducts mandatory national security screening on all adult-in Canada asylum claimants, and those that present at a Canadian port of entry.
• Applications are referred to the CBSA on the basis of established indicators which are mutually agreed upon by security partners. All adult in-Canada asylum seekers are referred for mandatory security screening.
• The CBSA's national security screening inventory is currently trending towards stabilization after experiencing a workload surge, which resulted in a significant backlog that peaked in March 2018, at 30,681 cases. As of November 2019, the backlog and inventory combined at 12,010 cases which represents a 60% reduction from peak.
• The CBSA has achieved a significant reduction of its overall inventory. Since May 2018, the absence of national security screening did not result in the postponement of any national refugee protection hearings at the Immigration and Refugee Board.
• Factors that have contributed to the inventory growth include:
  • increasing immigration levels;
  • special operations;
  • irregular migration at the Canada-US land border beginning in April 2017;
  • increase of in-Canada refugee claims and at ports of entry; and
  • increase in tourism, trade, international students, and official delegations.
• The CBSA, IRCC, and the Canadian Security Intelligence Service have implemented and are continuing to explore initiatives designed to maximize efficiency and streamline effectiveness. These initiatives include, but are not limited to:
  • better leveraging of existing, and exploring of new technology;
  • streamlining security screening for low risk referrals;
  • examining effectiveness of referral indicators; and
  • identifying opportunities to reduce process duplication with partners.

Investments into National Security Screening

• The CBSA has been actively implementing many security screening program improvements since November 2017. Internal reallocations as well as increases in the Multi-Year Level Plan (MYLP) funding, irregular migration funding, funding for security screening activities related to the G7, and reallocated internal resources allowed the CBSA to reduce the number of individuals awaiting security screening. These increases contributed approximately $6 million in 2018-19.
• This funding facilitated the CBSA's National Security Screening Division's implementation of an evergreen Backlog Reduction and Transformation Action Plan to reduce the number of cases awaiting national security screening and to improve the business processes to increase effectiveness and efficiency at multiple points within the program. The Action Plan includes various internal process improvements, increased communication with partners, better leveraging of existing technologies, investment in information technology maintenance, targeted use of overtime, and collaboration with IRCC to increase the quality of temporary resident and permanent resident applicant referrals for national security screening.
• In Budget 2019, the CBSA received $381.8 million over five years and $7.3 million in ongoing funding to support the implementation of the Border Enforcement Strategy, which includes up to $6 million over two years (fiscal year 2019-20 to fiscal year 2020-21) to conduct security screening assessments for all adult refugee claimants to identify individuals who may be inadmissible on serious grounds (e.g., security, organized crime, war crimes and crimes against humanity).

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Removals

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• As part of its enforcement of the Immigration and Refugee Protection Act (IRPA), the Canada Border Services Agency (CBSA) has a statutory obligation to remove any foreign national that has been issued a removal order for violating the IRPA. Immigration removal is an integral part of the CBSA's security mandate.
• The IRPA specifies that individuals may be inadmissible for any of the following reasons: security; crimes against humanity and war crimes; criminality; organized crime; risk to health of Canadians or excessive demand on health services; misrepresentation; inability to financially support yourself or your dependents; and non-compliance with the IRPA (e.g. overstaying the time you are permitted to remain in Canada).
• Individuals believed to be inadmissible to Canada have a report written against them. The merits of the report are reviewed at an inadmissibility hearing before the Immigration and Refugee Board (IRB), which is a quasi-judicial independent tribunal. For those who are found inadmissible, a removal order is issued against them. Every foreign national ordered to be removed from Canada is entitled to due process before the law. All removal orders are subject to various levels of appeal. Foreign nationals have the right to file an application for leave and judicial review before the Federal Court, accompanied by a stay motion, throughout the process. Permanent residents subject to a removal order also have a right of appeal to the Immigration Appeal Division of the IRB. Removal cannot be enforced until all pending legal avenues have been exhausted.
• The CBSA prioritizes its removals based on a risk management regime:
  • Priority 1: Security, organized crime, crimes against humanity, serious criminals and criminals and failed irregular arrival refugee claimants
  • Priority 2: Failed refugee claimants
  • Priority 3: All other inadmissible persons
• The CBSA's ability to remove foreign nationals is contingent on foreign government's cooperation. Despite international obligations to accept the return of their nationals, a number of countries have laws and policies that create obstacles for obtaining travel documents and prevent the CBSA from completing removals. For example, some countries do not help confirm the identity of their nationals, or have laws and policies in place on citizenship revocation that are contrary to international law. As a result, this lack of collaboration is contributing to the number of failed refugee claimants that remain in Canada, which creates a challenge for the CBSA to maintain previous removal levels and undermines program integrity.
• To address travel document challenges, the CBSA is consulting with its international partners to share best practices on how to gain cooperation from recalcitrant countries.
• In the 2018-2019 fiscal year, the CBSA removed over 9,600 individuals from Canada.
• Under the current refugee determination system, the CBSA aims to remove failed refugee claimants within 12 months of the IRB's final negative refugee determination. This objective is supported by a one-year bar on post-claim recourses, the pre-removal risk assessment and humanitarian and compassionate applications. Individuals with no impediments are removed as soon as possible once all legal avenues of recourse have been exhausted. The lack of cooperation by some home countries to provide travel documents continues to be the main obstacle and reason why failed refugee claimants remain in Canada following a negative determination.
• Budget 2018 included $173 million over two fiscal years to ensure that processing of asylum-seekers continues to happen securely, effectively and expeditiously. This included $7.5 million to the CBSA to ensure that once a rejected refugee claimant has exhausted all legal avenues of appeal, and all administrative requirements are met, the individual can be promptly removed. In Budget 2019, the CBSA received $381.8 million over five years and $7.3 million in ongoing funding to support the implementation of the Border Enforcement Strategy, which includes funding for enforcement and removals.

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Office of the Privacy Commissioner (OPC) Report of Findings on CBSA Digital Device Examinations

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• To date, the Office of the Privacy Commissioner (OPC) has received seven complaints and one discontinued complaint against the Canada Border Services Agency's (CBSA) examination of digital devices. The CBSA responded to each of these complaints when they were initially submitted and considered the issues raised when drafting the new policy on the Port of Entry Examinations of Travellers' Digital Devices.
• Of these eight complaints, the OPC selected six from Canadian citizens to investigate collectively which formed the basis of the OPC's Report of Findings. In the Report, the OPC found that these all six complaints were "well founded" and that the Agency contravened sections 4 and 6(1) of the Privacy Act in all the complaints examined. The CBSA disagreed with the OPC's findings in five of the complaints, however, the Agency acknowledged that in one complaint, the information collected was gathered without proper authority. Steps have been taken to correct this, including expunging the information in question from CBSA systems.
• In the Report, the OPC makes nine recommendations; six policy-related and three proposing legislative changes. The CBSA agreed to implement all six of the policyrelated recommendations and therefore the OPC considers the issues identified in their report conditionally resolved. In addition, though the CBSA did not accept the legislative recommendations, the OPC recognizes "that legislative reform is a Parliamentary matter and is outside the CBSA's authority."
• The recommendations CBSA will be implementing are:
  • introducing mandatory training for recruits and existing officers on the examination of digital devices;
  • implementing oversight and compliance monitoring mechanisms;
  • conducting an audit into the new comprehensive policy on the examination of digital devices;
  • updating the CBSA Enforcement Manual to include the new policy;
  • providing greater transparency about its digital device examinations procedures to the public; and
  • tracking and reporting on the number of digital device examinations.
• The recommendations CBSA will not be implementing are:
  • changing the definition of goods in the Customs Act to exclude digital devices;
  • writing CBSA policy into the Customs Act, imposing a threshold on the examination of digital devices; and
  • raising the threshold for digital device examinations to "reasonable grounds to suspect."
• The OPC acknowledges that courts have held that digital devices are goods as per the definition contained within paragraph 99(1)(a) the Customs Act. Excluding digital devices from the definition of goods would create an untenable situation where officers could examine a printed receipt but could not examine a digital receipt. This distinction would impede the CBSA in meeting its legislated mandate and serve to exempt more and more goods from examination, allowing prohibited goods such as child pornography to enter the country. Between 2014-2018, 77% of child pornography seizures came in the form of digital goods.
• Because both technology and the operating environment at the border are evolving at a rapid pace, it is important that CBSA have the ability to adapt and update its policies in response. Writing policy into law takes away this adaptability and process needed to make legislative changes could leave gaps in border enforcement should changes need to be made in the future.
• One of the most fundamental methods of meeting the mandate of the CBSA is through the examination of goods crossing the border. This is key to classifying goods, assessing the value for duty, collecting duty and taxes, determining the admissibility of goods, ensuring compliance with the law of Canada, detecting noncompliance, and providing a deterrent against non-compliance.

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Office of the Privacy Commissioner (OPC) Report of Findings on CBSA Digital Device Examinations

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• To date, the Office of the Privacy Commissioner (OPC) has received seven complaints and one discontinued complaint against the Canada Border Services Agency's (CBSA) examination of digital devices. The CBSA responded to each of these complaints when they were initially submitted and considered the issues raised when drafting the new policy on the Port of Entry Examinations of Travellers' Digital Devices.
• Of these eight complaints, the OPC selected six from Canadian citizens to investigate collectively which formed the basis of the OPC's Report of Findings. In the Report, the OPC found that these all six complaints were "well founded" and that the Agency contravened sections 4 and 6(1) of the Privacy Act in all the complaints examined. The CBSA disagreed with the OPC's findings in five of the complaints, however, the Agency acknowledged that in one complaint, the information collected was gathered without proper authority. Steps have been taken to correct this, including expunging the information in question from CBSA systems.
• In the Report, the OPC makes nine recommendations; six policy-related and three proposing legislative changes. The CBSA agreed to implement all six of the policyrelated recommendations and therefore the OPC considers the issues identified in their report conditionally resolved. In addition, though the CBSA did not accept the legislative recommendations, the OPC recognizes "that legislative reform is a Parliamentary matter and is outside the CBSA's authority."
• The recommendations CBSA will be implementing are:
  • introducing mandatory training for recruits and existing officers on the examination of digital devices;
  • implementing oversight and compliance monitoring mechanisms;
  • conducting an audit into the new comprehensive policy on the examination of digital devices;
  • updating the CBSA Enforcement Manual to include the new policy;
  • providing greater transparency about its digital device examinations procedures to the public; and
  • tracking and reporting on the number of digital device examinations.
• The recommendations CBSA will not be implementing are:
  • changing the definition of goods in the Customs Act to exclude digital devices;
  • writing CBSA policy into the Customs Act, imposing a threshold on the examination of digital devices; and
  • raising the threshold for digital device examinations to "reasonable grounds to suspect."
• The OPC acknowledges that courts have held that digital devices are goods as per the definition contained within paragraph 99(1)(a) the Customs Act. Excluding digital devices from the definition of goods would create an untenable situation where officers could examine a printed receipt but could not examine a digital receipt. This distinction would impede the CBSA in meeting its legislated mandate and serve to exempt more and more goods from examination, allowing prohibited goods such as child pornography to enter the country. Between 2014-2018, 77% of child pornography seizures came in the form of digital goods.
• Because both technology and the operating environment at the border are evolving at a rapid pace, it is important that CBSA have the ability to adapt and update its policies in response. Writing policy into law takes away this adaptability and process needed to make legislative changes could leave gaps in border enforcement should changes need to be made in the future.
• One of the most fundamental methods of meeting the mandate of the CBSA is through the examination of goods crossing the border. This is key to classifying goods, assessing the value for duty, collecting duty and taxes, determining the admissibility of goods, ensuring compliance with the law of Canada, detecting noncompliance, and providing a deterrent against non-compliance.

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