Ministerial transition 2021: Transition binder—Environment

Canada–United States border management relationship

U.S. Counterparts

Similar to the structure of the Public Safety Portfolio in Canada, the United States (U.S.) Department of Homeland Security (DHS) is comprised of several component agencies, which include U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE). The U.S. CBP is responsible for enforcing U.S. immigration and customs legislation at designated ports of entry (POEs), whereas U.S. ICE is responsible for these functions inland. In addition, the U.S. Border Patrol (BP), a component agency of U.S. CBP, is responsible for patrolling the land border between designated POEs. This includes intercepting individuals seeking to enter the U.S. by irregular means, without presenting themselves at a POE.

The current acting U.S. CBP Commissioner is Troy Miller. In April 2021, the White House announced that Chris Magnus, the police chief of Tucson, Arizona, was nominated as the new Commissioner. Formal confirmation proceedings are not expected to begin until Fall 2021.

Overview and state of Canada–U.S. border management relations

The CBSA has built a longstanding and highly productive relationship with its U.S. partners at all levels. This is driven by information sharing, collaboration and leveraging technology to address an operating environment characterized by increasingly complex threats and, up until the pandemic, rising volumes across all business lines. The pandemic, however, has resulted in border agencies grappling with how to operate in a pandemic and post-pandemic environment to effectively mitigate public health risks, while supporting supply chains and continuing to fulfil the enforcement mandate.

Each year, a CBSA-U.S. CBP Joint Senior Executive Meeting (JSEM) brings together senior executives to discuss key issues and set joint commitments for the upcoming year. The next JSEM is tentatively scheduled for late 2021/early 2022, to be held in Canada, where both organizations will look to establish new joint border priorities as we begin to focus on a post-pandemic operating environment.

Building on the inaugural Prime Minister-President meeting in February 2021, both countries agreed to a joint roadmap to advance the bilateral relationship. Deliverables on the roadmap that involve the CBSA directly include:

• a coordinated approach based on science and public health criteria when considering measures to ease Canada-U.S. border restrictions in the future
• the creation of a cross-border task force to address gun smuggling and trafficking
• strengthening the U.S.-Canada Action Plan on Opioids

U.S. officials recently indicated that they view the roadmap as a framework for the broader Canada-U.S. relationship, regardless of the political direction in Canada.

Key CBSA-U.S. files

Pandemic border measures

In March 2020, the Canadian and U.S. governments agreed to mutually restrict non-essential travel along the land border to limit the spread of COVID-19.

Since August 5, 2021, fully vaccinated U.S. citizens and permanent residents have been permitted to travel to Canada. This easing has yet to be reciprocated by U.S. partners, and is in part complicated by the U.S.' southern border; however, operational and policy engagement by the CBSA is ongoing, through two working groups:

• a Canada-U.S. White House-led expert working group on border restrictions (Assistant Deputy Minister level)
• a Canada-U.S. Operational working group (Director General level)

On September 20, 2021 the White House announced that starting in November, the U.S. will require foreign nationals travelling by air to demonstrate proof of vaccination, in addition to a negative COVID-19 test, to enter the country. [Redacted]

Irregular migration and modernization of the Safe Third Country Agreement (STCA)

(for additional information, refer to section Safe Third Country Agreement and irregular migration)

[Redacted]

Preclearance pilots

(for additional information, refer to sections Travellers Preclearance and Cargo Preclearance)

In March 2015, Canada and the U.S. signed the Agreement on Land, Rail, Marine and Air Transport Preclearance (LRMA), cementing their commitment to preclearance as a step towards advancing their shared vision outlined in the Beyond the Border Action Plan. [Redacted]

Passenger Name Record (PNR)

(for additional information, refer to section Advanced Passenger Information / Passenger Name Record)

Since the fall of 2020, Canada and the U.S. have been working collaboratively through a variety of fora on an International Engagement Strategy to engage countries in adopting and implementing the International Civil Aviation Organization (ICAO) Standards and Recommended Practices (SARPs) on PNR data. Canada continues to explore negotiations with the European Union (EU) on the exchange of PNR data; [Redacted] The U.S. has been Canada's strongest ally and a vocal advocate on the use of the ICAO SARPs as the minimum benchmark for PNR data policies.

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Collective bargaining

The Treasury Board of Canada Secretariat (TBS) is responsible for all collective bargaining within the core public administration (including the CBSA) and ensures the renewal of 27 collective agreements through negotiations with 15 bargaining agents.

TBS is also responsible for providing advice on collective bargaining and for supporting federal departments and other portions of the core public administration in interpreting collective agreements.

The CBSA's workforce has membership in 5 of the 15 bargaining agents, broken down as follows:

1)  The Public Service Alliance of Canada (PSAC) is the largest union covering federal public servants and represents 12,011 CBSA employees, including 10,412 in the Frontière‑Border (FB) classification. While the CBSA is the only employer representative at the FB negotiating table, it is not represented at the other PSAC-TBS bargaining tables. All collective agreements with PSAC, with the exception of the FB group, are valid until 2021. The FB group reached a tentative agreement on August 6, 2021. It is expected that the FB collective agreement will be ratified by November 2021. Once ratified, the collective agreement is set to expire on June 21, 2022.

2)  The Professional Institute of the Public Service of Canada (PIPSC) represents 918 CBSA employees. All PIPSC collective agreements are valid and set to expire in 2022 with the exception of the Computer Systems (CS), which is set to expire December 21, 2021. The CBSA has an employer seat at this negotiating table.

3)  The Association of Canadian Financial Officers (ACFO) represents 231 CBSA employees. A collective agreement is in place and will expire November 6, 2022.

4)  The Canadian Association of Professional Employees (CAPE) represents 311 CBSA employees. A collective agreement is in place and will expire June 21, 2022.

5)  The International Brotherhood of Electrical Workers (IBEW) represents 9 CBSA employees. A collective agreement is in place and will expire August 31, 2022.

Media scan (April to September 2021)

Overview

COVID-19 continued to dominate the media over the last six months with coverage related to the CBSA focused mainly on the border measures in place during the pandemic; including easing of entry restrictions, vaccination requirements and quarantine measures in place for travellers.

Overall media coverage of CBSA issues has been balanced and neutral in tone, with articles relying on quotes both from the Agency as well as field experts, political figures and first-person accounts from the general public.

The Agency continues to receive an average of 150 media calls a month, a majority of which have been related to the pandemic. The Agency has increased its pro-active media outreach efforts by providing media tours and interviews at select ports of entry, as well as facilitating media interviews with subject matter experts to explain the measures in place at the border with the coming into force of a series of eased requirements over the summer months.

The top media topics for the last six months include:

• COVID-19 Border measures
• Removals / Detention centres / High profile immigration enforcement cases
• Significant seizures and enforcement activities
• Employee misconduct / Job action
• Technology / Facial verification / Privacy issues
• Afghanistan resettlement

Summary

COVID-19 Border measures

Articles about border measures, traveller requirements, proof of vaccination, use of the ArriveCAN app or website and quarantine requirements dominated the media in terms of CBSA coverage.

Media coverage has been balanced, with criticisms aimed at the lack of clarity around timing for when foreign nationals could come to Canada for discretionary reasons, a definitive timeline for the re-opening of the border in terms of the tourism industry and reporting on individuals who had experienced hardships due to restrictions (in other words: separated families and international students) or delays at the border following easing of restrictions for vaccinated U.S. travellers. With the resumption of discretionary (non-essential) travel to Canada by fully vaccinated travellers as of September 7, media coverage has turned to speculation of when the U.S. will open its land borders for discretionary travel by Canadians.

Key messages (current requirements and measures)

Canada has some of the strongest border measures in the world to prevent the further spread of COVID-19 and its variants into Canada.

The CBSA works in close cooperation with the Public Health Agency of Canada (PHAC) to implement and operationalize any required enhanced border measures that they recommend to help prevent the spread of serious infectious diseases into Canada.

All fully vaccinated foreign nationals are now eligible to enter Canada for discretionary (non-essential) reasons (in other words tourism, entertainment or leisure) however these individuals must:

• be fully vaccinated: to be considered fully vaccinated, a traveller must have received the full series of a vaccine — or combination of vaccines — accepted by the Government of Canada at least 14 days prior to entering Canada. Currently, those vaccines are manufactured by Pfizer-BioNTech, Moderna, AstraZeneca/COVISHIELD, and Janssen (Johnson & Johnson)
• have a valid pre-arrival COVID-19 molecular test result taken no more than 72 hours before arriving in Canada or a previous positive test result taken between 14 and 180 days before departure to Canada. Antigen tests, often called "rapid tests" are not accepted
• be asymptomatic
• submit their mandatory information via ArriveCAN (App or website), including proof of vaccination in English or French and a quarantine plan
• be admissible under the Immigration and Refugee Protection Act
• take a test on arrival, if required

Fully vaccinated travellers who are eligible to enter Canada continue to be subject to random mandatory on arrival testing. This is implemented at select airports and land border crossings. There are no changes to the mandatory testing requirements for unvaccinated or partially vaccinated travellers.

All travellers seeking entry to Canada are subject to screening measures by CBSA border services officers (BSO) to ensure travellers understand their public health obligations and to verify travellers' quarantine plan (if required). As designated screening officers under the Quarantine Act, CBSA border services officers have the authority to review, challenge and confirm travellers' statements and direct them to a quarantine officer.

Before making a decision, a BSO will review and consider each traveller's unique circumstances, the purpose of the trip, and the documents presented at the time of entry. CBSA officers use all of the information available to them when a traveller is seeking entry into Canada, to determine which set of instructions apply to the traveller.

Removals / Detention centres / High profile immigration enforcement cases

Media interest and coverage of removals and high profile immigration enforcement cases involving the CBSA generated a significant number of questions about detainees, detention practices and immigration holding centres. Coverage and subsequent media enquiries increased with the release of the Human Right's Watch report on immigration detention in Canada and its impact on mental health. Some criticisms in media coverage have focused on CBSA's role as it relates to detention and removals including the use of provincial correctional facilities to house immigration detainees and the use of alternatives to detention. The most common media questions include requests for statistics on the number of removals as well as for comment on specific cases that have received attention. The CBSA provides general information about our policies and programs to media but does not speak to the specifics of particular cases in accordance with the Privacy Act.

Key messages

The CBSA upholds the fairness and integrity of the Canadian immigration and refugee system by removing foreign nationals who are inadmissible or have no legal right to remain in Canada. The CBSA can only remove individuals once all legal avenues of recourse are exhausted in a process that may involve applications to Immigration, Refugees, and Citizenship Canada (IRCC), the Immigration and Refugee Board (IRB), and the Federal Court.

National detention standards are in place to guide the administration of CBSA immigration holding centres and the treatment of immigration detainees. These standards establish expected practices and provide for national consistency in the administration of the detention program, particularly in areas related to safety, security and detainee care.

The Government of Canada limits the use of detention to those difficult cases where there are serious concerns about flight risk, an individual being unidentified or a danger to the public. The CBSA considers alternatives to detention in all cases where it has the authority to detain.

Significant seizures and enforcement activities

News releases about the continued work at the border with regards to seizure and enforcement activities generated an uptick in media coverage. These pro-active releases have allowed the Agency to continue to tell its story throughout the pandemic and highlight CBSA efforts to protect Canada's borders, ensure the safety of Canadians and support our economy. The CBSA's collaboration with national, provincial and municipal police forces on enforcement activities, such as the recent announcement of a significant cocaine/illegal drug seizure by Toronto police has also resulted in positive media mentions for the Agency.

Key messages

Canada's border services officers are highly trained in examination and investigative techniques to analyze risk and intercept prohibited goods from entering Canada. Officers look for indicators of deception and use intelligence as well as a risk management approach in determining which goods may warrant a closer look.

Despite new and complex challenges posed by the pandemic, CBSA officers continue to stop a substantial amount of drugs, firearms and other contraband from entering our communities.

The CBSA works closely with its domestic and international law enforcement partners to detect and prevent illegal cross-border activity and protect the health, safety, and security of Canadians.

Employee misconduct / Job action

The past few months have continued to see media focus on issues of alleged officer misconduct, suggestions of harassment and discrimination within the Agency and collective agreement negotiations. This included articles focused on the findings of an internal survey into the alleged discrimination and harassment at the Cornwall port of entry as well as coverage related to union negotiations of a recent collective bargaining agreement for border services officers. National media coverage was moderate on the impact of potential job action and the effect that it would have on the re-opening of the border to fully vaccinated U.S. travellers. Media coverage has also pointed to the lack of an independent oversight body. While the CBSA has internal mechanisms to handle complaints from the public, critics have long argued the Agency should not be allowed to investigate its own officers.

Key messages

On employee misconduct:

All allegations of improper or illegal behaviour by CBSA employees are taken very seriously and are thoroughly investigated and acted upon accordingly. Each case is assessed based on its own facts to determine the appropriate disciplinary measure, up to and including termination of employment for misconduct.

The Agency takes all necessary actions to address officer misconduct as early as possible. Isolated matters by an individual CBSA employee/officer do not reflect the integrity and professionalism of thousands of CBSA employees who carry out their duties in an exemplary manner.

On FB job action:

The CBSA is pleased to learn of the tentative agreement reached on August 6 between the Treasury Board Secretariat and the Public Service Alliance of Canada for border services officers. This deal will ensure that the Agency can continue to work with the highest levels of dedication, integrity and professionalism to maintain the safety and security of our border, ensure compliance with our laws, and keep the border open to legitimate travellers and goods.

Technology / Facial verification / Privacy issues

Media coverage on the Agency's use of biometrics and facial verification technologies picked up over the last six months, due in part to funding in Budget 2021 that would allocate roughly $120-million a year to the CBSA for new technologies including "facial recognition and fingerprint verification." Media coverage was balanced in tone, however, some critics raised privacy concerns pointing to the intrusive use of facial recognition in other countries. Media reports also called into question a past 2016 CBSA project, "Faces on the Move," and its possible privacy violations.

Key messages

The CBSA takes the issue of personal information and privacy seriously and has safeguards in place to protect the private information of travellers, without compromising safety and security. The Agency is consulting the Office of the Privacy Commissioner on its use of biometric verification, and it is establishing appropriate privacy and technical safeguards to help ensure that biometric technologies deployed at the border do not disproportionally or adversely impact specific groups of travellers.

The Agency uses facial verification technology, sometimes referred to as facial matching or facial comparison technology for the purpose of confirming identification.

At Primary Inspection Kiosks, facial verification technology involves comparing the traveller's photo taken at the kiosk with the photo stored on the traveller's ePassport chip 1-to-1 image comparison) for identity confirmation purposes. Globally, there has been a rise in this practice, which coincides with an increase in the number of ePassport-issuing countries (now at over 140 countries) and advancements in the accuracy of facial verification technology and automation.

Over the coming months and years, the CBSA will roll out a series of initiatives that will encourage more touchless border processing to reduce possible disease transmission points, and shorten wait times. As Canada gradually re-opens its borders, these initiatives will position Canada to manage future travel volumes without compromising public health priorities or the country's economic recovery.

These modernization initiatives will create a streamlined process for low-risk travellers, which will allow the CBSA to redeploy resources to higher value tasks, such as conducting secondary examinations and enforcement activities, thus improving the delivery of the Agency's safety and security mandate.

Afghanistan resettlement

Media coverage to-date on the evolving situation in Afghanistan and particularly Canada's efforts to evacuate Canadian citizens and permanent residents and the resettlement of Afghan nationals has made minimal direct mention of the CBSA. However, the Agency has been working closely with partners at IRCC, GAC, Public Safety, DND and TC to ensure a coordinated communications approach and is a key player in supporting the government's humanitarian efforts particularly with respect to security screening.

Key messages

The CBSA is supporting Canada's humanitarian efforts by facilitating the entry of the Afghan refugees and their families including conducting customs, immigration and health checks.

As the Agency responsible for securing the border, CBSA continues to take all the necessary steps to ensure all persons undergo a thorough screening as we do with all travellers to Canada. Should a person indicate they are feeling ill or the officer notices symptoms of an illness, the person will be referred to the health partner on-site.

Protecting the health and safety of Canadians is the number one priority of the Government of Canada. Security screening is an important part of the overall assessment of whether a person is admissible to Canada for national security concerns (including terrorism under section 34 of the Immigration and Refugee Protected Act). Risks are managed and will continue to be managed to ensure national security and public safety in Canada.

Parliamentary context

Over the course of the 43rd Parliament, the CBSA undertook preparations for approximately 40 appearances by Agency officials and/or by the Minister of Public Safety and Emergency Preparedness. The majority were related to COVID-19 and to mandate-wide appearances (for example, studies of Government Estimates or Ministerial Mandate Letters, including various issues of sustained interest, such as immigration enforcement and seizures of firearms or drugs).

The President of the CBSA appeared several times before the House of Commons Standing Committee on Public Accounts (PACP) to speak to the Agency's efforts to address past findings by the Auditor General (AG) related to the taxation of e-commerce (Spring 2019 AG report), respect in the workplace (Fall 2019 AG report), and immigration removals (Spring 2020 AG report).

Alongside his counterparts from Public Safety Canada, the RCMP, CSIS, and the Communications Security Establishment, the President of the CBSA also appeared twice before the House of Commons Special Committee on Canada-China Relations (CACN) to discuss the national security dimensions of relations between those two countries, including one appearance in support of the Minister of Public Safety and Emergency Preparedness.

Looking ahead to the 44th Parliament, the response to the COVID-19 pandemic, including the CBSA's contributions to efforts to manage the spread of the virus, will likely continue to be an area of significant interest and parliamentary scrutiny.

The Agency's home committees (the House of Commons Standing Committee on Public Safety and National Security (SECU) and the Standing Senate on National Security and Defence (SECD)) will continue to study issues related to the Agency's mandate. SECU may undertake studies it previously agreed to, but never initiated, on the management and control of Canada's border, and on gang activity, drug trafficking, and firearms smuggling. Further, should the House of Commons decide to reappoint CACN, future discussions on national security in that forum may also implicate the CBSA.

Additionally, the House of Commons Standing Committees on Access to Information, Privacy and Ethics (ETHI) and on the Status of Women (FEWO) had expressed interest in studying the use and impact of facial recognition technology and the human trafficking of women, girls and gender-diverse individuals for sexual exploitation in Canada, respectively. Should those studies be of continued interest in the next Parliament, it is likely the CBSA will be called on to provide testimony. In 2018, the CBSA appeared as part of the Standing Committee on Justice and Human Rights' (JUST) study of human trafficking in Canada.

At the time of dissolution, the Agency had been tracking the following legislative proposals through Parliament:

• Government Bill C-21 (firearms)
• House of Commons Private Member's Bill C-291 (admissibility of foreign nationals who are the subject of or related to the subject of a family sponsorship application)
• Senate Public Bills S-204 (trafficking in human organs), S-216 (the Modern Slavery Act), and S-228 (trafficking in persons)

Should any of these proposals be reintroduced and taken up during the 44th Parliament, the CBSA should expect to be called on to contribute to the course of their legislative passage.

Cabinet context

The CBSA is one of the agencies overseen by the Minister of Public Safety and Emergency Preparedness. As such, all Cabinet initiatives implicating the CBSA have to be approved by the Minister. These initiatives include CBSA-led Memoranda to Cabinet (MC) or those led by other government departments or agencies that include CBSA implications. Given the breadth of legislation and regulations enforced at the border, the CBSA works collaboratively with many other government departments on various Cabinet documents.

Historically, there have been one or two CBSA-led initiatives per Cabinet session. In most occurrences, the CBSA is a partner to initiatives led by other government departments, such as immigration initiatives or international treaties that would affect border crossings and/or imports and exports. For example, during the COVID-19 pandemic, the CBSA was a major partner of the Public Health Agency of Canada. In addition to Public Safety, other regular partners include Immigration, Refugees and Citizenship Canada, Transport Canada and Global Affairs Canada.

The CBSA works in collaboration with Public Safety to transmit briefing material. Briefing material is either led by Public Safety and includes input that reflects portfolio considerations, or is led by CBSA if there are no other portfolio implications. The material provided by the CBSA usually includes the President's approval on a proposal through a transmittal note and the Chief Financial Officer's Attestation. The President of the CBSA is available to attend Cabinet meetings if requested by the Minister.

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