Issue notes—Special Committee on Canada-China Relations: National Security Dimension of the Canada-China Relationship (February 25, 2021)

Import prohibition on goods produced by forced labour

Background

Canada has imposed an importation ban on goods that were produced by forced labour, as described in An Act to implement the Agreement between Canada, the United States of America and the United Mexican States, which received Royal Assent on March 13, 2020. As described in paragraph 202(8), Chapter 98 item No. 9897.00.00 of the Customs Tariff, the law has been amended to include a reference prohibiting goods mined, manufactured or produced wholly or in part by forced labour. These amendments made under the Act came into force in Canada on July 1, 2020, as outlined in CBSA Customs Notice 20-23, Import prohibition on goods produced wholly or in part by forced labour.

Employment and Social Development Canada (ESDC) is the Government of Canada's lead department for labour-related programs and the CBSA works closely with ESDC to identify goods that have been produced by forced labour and prevent their entry into Canada. ESDC's Labour Program is actively monitoring and researching evidence related to problematic supply chains, and documented evidence of goods being produced with forced labour is transmitted for CBSA's consideration. The CBSA conducts risk analyses on goods entering the country to determine if they are admissible. The CBSA may use this information to identify and intercept shipments containing goods that have been identified as suspected to have been produced by forced labour.

Shipments containing goods suspected of being produced by forced labour will be detained at the border for inspection by a border services officer. If in the judgement of the officer the goods were produced by forced labour, the officer will apply the tariff classification under chapter 9897 and prohibit the goods from entering Canada. Determinations are made on a case-by-case basis, based on available supporting evidence and analysis. Importers of goods classified under tariff item No. 9897.00.00 may appeal the classification as prohibited, re-export the goods or abandon the goods.

The Customs Tariff import prohibition is the only legislative enforcement tool in Canadian law regarding the importation of goods produced by forced labour.

In addition, the Customs Tariff can not be used to prohibit the importation of goods solely on the basis of originating from a specific country or region. Implementing such restrictions would fall under the purview of Global Affairs Canada.

Importers are encouraged to work with their foreign suppliers to ensure that any goods imported into Canada have not been mined, manufactured or produced wholly or in part by forced or compulsory labour.

The Government of Canada expects companies to take every step possible to ensure that their supply chains conform to Canadian law with respect to the prohibition on the import of forced labour. It is the responsibility of the importing company to conduct due diligence on its supply chains to ensure that it is not directly or indirectly sourcing products from entities implicated in forced labour or other human rights violations.

Border security contracts (Nuctech)

Background

On July 17, 2020, Global News published an article, noting that Nuctech had been awarded four border security and customs warehouse contracts to provide scanners and lab equipment to the CBSA. On November 18, 2020, Global News published another article, referencing the same four contracts.

The CBSA currently has four fulfilled procurement contracts for the acquisition of detection technology with Nuctech - the earliest of which commenced in the fall of 2017, and the latest fulfilled in fall of 2020. Five Pallet Large Scale Imaging (LSI) systems were also scheduled to be purchased under the Initiative to Take Action Against Gun and Gang Violence (ITAAGGV), and installed at major air cargo centers across the country.

The latest contract for the Mobile LSI was fulfilled in November 2020. After conducting performance and usability tests, the unit was planned to be deployed to a land border. If successful, this product was to replace the current fleet of aging Mobile LSIs; however, the CBSA has not deployed this equipment.

All of these devices are standalone devices, not directly connected to the CBSA or Government of Canada (GoC) networks. Images and information are stored directly on the devices themselves, with an over-writing function once the hard-drive fills up. It is suggested that this is about every 30 days. The devices had previously been serviced between one to two times per year (which would include any maintenance and updates) by an employee/engineer from the Nuctech, who requires escort while on CBSA premises. Each contract would have a two year warranty covering preventative maintenance (1 to 2 times per year) as well as servicing for any issues. After this, there would be options within the contract to extend the maintenance/servicing.

The typical lifecycle for these devices is approximately eight years; however, given the sensitive role that detection technology plays at the border and for the security of Canada, as well as PSPC's recent classification of detection technology at the border as a sensitive sector, the CBSA is currently reviewing all of its detection technology and future procurements.

The CBSA works with PSPC's specialist Industrial Security Program to address any security risks related to the contracting activities. The work involved in clearing Nuctech Co. Ltd, as well as any particular supplier, is done by PSPC's Industrial Security Program. The CBSA, as a client of PSPC, provides the requirements for the contract, as it would for any other contract, in the Statement of Work. Once the vendor has been cleared and the contract is awarded by PSPC, the CBSA is responsible for security screening of any contractors who require unrestricted access to CBSA's premises or information.

The details of the CBSA's four fulfilled contracts with Nuctech are as follows:

1. Contract A (value $2.54 million CAD) commenced on October 30, 2017, for the purchase of a Pallet / Large Scale Imaging System – this has been installed and is used to X-ray palletized goods
2. Contract B (value $1.01 million CAD) commenced on November 7, 2017, for the purchase of [Redacted] Warehouse X-Ray Systems – these have been installed in a number of facilities across Canada and are used to X-ray commercial goods
3. Contract C (value $0.48 million CAD) commenced on January 2, 2019, for the purchase of [Redacted] Low Conveyor X-Ray Systems – these have been installed in a number of facilities across Canada and are used to X-ray passenger baggage in secondary operations
4. Contract D (value $4.00 million CAD) commenced on November 12, 2019, for the purchase of a Mobile Large Scale Imaging System

Key messages

Wanzhou Meng case

Background

Ms. Meng arrived off a Cathay flight from Hong Kong on December 1, 2018. She was met by Canada Border Services Agency (CBSA) officers who had been notified of a provisional arrest warrant for her extradition to the United States for fraud (over $5,000), issued on November 30, 2018 by the Supreme Court of British Columbia. The CBSA advised Ms. Meng that her customs examination was concluded and she was released to the care and control of the Royal Canadian Mounted Police (RCMP) who then arrested her for the purposes of extradition. On December 1, the CBSA issued a warrant for the continuation of her examination and determination of admissibility to Canada under the Immigration and Refugee Protection Act (IRPA). At no point during this process was Ms. Meng detained by the CBSA. The CBSA followed its policies and procedures for secondary examination to determine the admissibility of people and goods into Canada.

Ms. Meng's bail hearing under the extradition process concluded on December 10, 2018 and she was ordered released on various conditions, including a $10 million bond. At the time of her release, the CBSA executed its December 1, 2018 warrant, releasing her on conditions and deferring her examination until enough evidence is gathered to make an admissibility determination under IRPA.

On March 1, 2019, the Minister of Justice issued an Authority to Proceed in Ms. Meng's extradition matter, formally commencing her extradition process. The same day, Ms. Meng filed a civil action against the CBSA, the RCMP and their officers seeking an unspecified amount of damages for breaching her section 7, 8, 9, 10(a) and 10(b) Charter rights and unlawfully detaining her at the Vancouver International Airport. She is alleging that RCMP officers and/or representatives of the United States Department of Justice arranged for the CBSA to delay the immediate execution of the arrest warrant in order to obtain evidence and information from Ms. Meng, including the examination of her baggage and electronic devices, under the guise of a routine border check.

On June 3, 2019, the CBSA filed its Statement of Defense.

The Government of Canada disclosure of relevant documents in the civil action was made on June 29, 2019.

In her separate extradition proceedings United States v. Meng, a disclosure motion filed by Ms. Meng was argued before the Supreme Court of British Colombia between September 16 and October 4, 2019. This motion was brought in order to seek further disclosure of documents (more than would normally be permitted in such a matter) from the Government of Canada.

The motion was made in furtherance of an abuse of process motion brought by Ms. Meng's counsel. On December 9, 2019, the court ruled that Ms. Meng had met the legal test for disclosure and made an Order for further document production.

The Government of Canada disclosed the relevant documents in the extradition proceedings in June 2020. The Government of Canada filed motions under s.37 and s.38 of the Canada Evidence Act to protect sensitive information, which the court upheld on August 25, 2020 and October 9, 2020.

As part of the abuse of process allegations in the extradition proceedings, CBSA and RCMP officers testified for approximately four weeks from October to December 2020. The four weeks were spread out during three months due to the scheduling availability of the court and the testimony taking longer than anticipated.

On January 12, 2021, Ms. Meng applied to the court to amend her bail conditions, which the court denied on January 29, 2021.

Ms. Meng has filed her submissions relating to the abuse of process allegations in the extradition proceedings on January 27, 2021. The Government of Canada's are due on February 26, 2021 and the hearing is set to take place from March 15 until April 1, 2021.

Opioids / Illicit narcotics

Background

With more than 17,600 opioid-related deaths since January 2016, the opioid overdose crisis is a national public health and safety epidemic of significant concern to the Government of Canada. The COVID-19 pandemic has exacerbated the opioid crisis. Fentanyl and fentanyl analogues are responsible for a significant portion of opioid toxicity deaths.

Supply trends

Fentanyl seizures by Canadian law enforcement have been increasing since 2011. Since 2016, China has been a significant exporter of fentanyl and fentanyl analogues to Canada. Today, fentanyl powders continue to be ordered on the Internet and smuggled into Canada [Redacted] however, precursor and pre-precursor chemical imports [Redacted] are displacing the ready-made fentanyl threat and contributing to domestic production of fentanyl.

China has been responsive to international requests to schedule fentanyl and related substances. In May 2019, China scheduled fentanyl and its analogues as controlled substances. Since China implemented these controls, CBSA has recorded only one fentanyl seizure from China. In 2020, CBSA made fewer seizures of fentanyl from global sources (down by 42% with 13 seizures in 2020), but seized larger quantities of fentanyl (up by 1,662%) relative to 2019. Import of precursor chemicals has been increasing since 2018.

[Redacted]

Ultimately, the emergence of new countries as source and transit points for fentanyl and various analogues could signal the beginning of a diversification of routings as traffickers attempt to evade law enforcement efforts aimed at China. [Redacted]

Federal action

To further assist health, law enforcement and border officials in addressing the opioid overdose crisis, the Government of Canada has amended several Acts to, for example, restrict the importation of pill presses and other devices used to produce pills containing illegal opioids and to allow border officers greater authority to interdict controlled substances in international mail.

The Public Safety Portfolio continues to monitor emerging trends in the illicit drug market and is engaging with its domestic and international partners to advance supply reduction efforts. To this end, the RCMP has a Memorandum of Understanding with the Chinese Ministry of Public Security that facilitates joint work on, inter alia, illicit drug trafficking. [Redacted]

Other federal actions include the creation of the Organized Crime Joint Operations Centre (OC JOC) between RCMP, CBSA [Redacted] to coordinate operational responses to address the illicit drug problem; the National Chemical Precursor Diversion Program to prevent the flow of precursors from legitimate industry to drug traffickers; and, the RCMP's Clandestine Laboratory Enforcement and Response team to assist other police services to combat drug threats.

Removals: Cases with criminality

Background

One of the Canada Border Services Agency's (CBSA) key mandated objectives is to protect the health and safety of Canadians and to maintain the security of Canadian society. These objectives are found in both the CBSA Act and the Immigration and Refugee Protection Act.

The CBSA places the highest priority on cases involving national security, organized crime, crimes against humanity and criminals. Individuals believed to be inadmissible to Canada for safety and security reasons will have an inadmissibility report written against them. Depending on the particular inadmissibility, a decision as to whether or not to issue a removal order will be made by a reviewing officer acting under the delegated authority of the Minister, or by the Immigration and Refugee Board (IRB). If there is sufficient evidence to support the inadmissibility allegation, a deportation order will be issued against the person concerned.

Not all inadmissibility reports result in a removal order. If the reviewing officer or the IRB determines that the evidence presented is not sufficient to support the allegation, a deportation order will not be issued. To ensure consistency in reporting on safety and security cases, the Agency reports on cases that have completed the entire process and are found inadmissible on safety and security grounds

It is important to note that the Agency closely monitors the progress of any cases flagged as having evidence on file that could potentially lead to a serious inadmissibility. If a removal order is issued, the agency will monitor the progress until all legal avenues of appeal and due process are exhausted, and commence removal preparations as quickly as possible. If a Foreign National is considered a danger to the public, they may be detained in immigration detention during the removal process.

Individuals subject to a deportation order for a serious inadmissibility may be eligible to a pre-removal risk assessment (PRRA) prior to removal. For those who are serving a term of imprisonment, the CBSA will initiate PRRA while the individual is serving their term of imprisonment to ensure that all due processes are completed before the term is completed. The removal may occur unescorted or under escort if it is required by the airline, the transit country or if the person poses a danger to the public or is a significant flight risk. Once removed, the deportation order bans the individual from Canada for life, unless they receive written permission to return to Canada.

Serious inadmissibility cases represent 6% of the overall removal working inventory with 1,108 cases out of 18,818. Of these, 73 cases have no impediments to removal and are being scheduled for removal.

Serious inadmissibility cases represent 2% of the overall removal working inventory with 35 cases out of 1,866. Of these, 3 cases have no impediments to removal and are being scheduled for their removal.