Ministerial transition 2021: Transition binder—Current issues

Operation Aegis: Afghan resettlemen

The withdrawal of international forces from Afghanistan, now complete, has created significant security risks in the country. Security concerns in Afghanistan are high as the Taliban reasserts their influence over the country, including gaining control over a number of significant border crossings, which makes it very difficult for individuals to leave. Vulnerable foreign nationals seeking to be evacuated from Afghanistan may face difficulties obtaining a travel document to enter third countries, and are unlikely to have already made an application to enter Canada. Canadian humanitarian partners have reported that Afghanistan is facing an acute humanitarian emergency on a scale unseen in the past 40 years.

On July 23, 2021, Immigration, Refugees, and Citizenship Canada (IRCC) announced Special Immigration Measures (SIMs) to provide a path to protection in Canada for Afghan nationals at risk due to their work supporting Canadian missions in Afghanistan. These measures facilitate the resettlement of current and former Locally Engaged Staff (LES) at Canada's Embassy in Afghanistan, as well as interpreters, drivers, and others with "significant and/or enduring" relationships to the Government of Canada (GC) including their families, who have been referred to IRCC by Global Affairs Canada (GAC) and the Department of National Defense (DND). The final SIM, ending December 31, 2023, supports a two-year humanitarian resettlement strategy for 20,000 Afghan nationals who were forced to flee.

On August 29, 2021, Canada joined a United States-led statement, signed by over 90 countries, calling on the Taliban to honour its assurance that all foreign nationals and Afghans with travel authorization from foreign countries be allowed to travel safely to points of departure and outside the country.

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The CBSA continues to work closely with other federal departments as well as non-governmental organizations on this humanitarian effort. The Intelligence and Enforcement Branch and Travellers Branch align the CBSA's operational roles and responsibilities with IRCC policy decisions, internal planning, reporting, and frontline support, and also ensure any operational response and tactical plans take into account public health guidelines related to COVID-19. The CBSA has created an internal task force to strengthen its response and provide a dedicated and integrated body to deliver the Agency's mandate for this humanitarian effort.

The Agency also arranged a suitable processing site at the Toronto Pearson International Airport. The site set-up requirements may be used as guidance for potential future processing sites for the GC Afghan Resettlement initiative.

In accordance with other government departments' legislation, applicants must meet all usual admissibility requirements, including security, criminal, and health screenings. Applicants will also be subject to existing COVID-19 public health measures and safety protocols as outlined by the Public Health Agency of Canada.

The CBSA, the Canadian Security Intelligence Service, and other partners are conducting security screening on referrals of SIM applicants. IRCC will refer cases to the CBSA and partners using established referral indicators for security screening.

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The CBSA continues to participate in daily interdepartmental conference calls hosted by IRCC and GAC and facilitates internal calls across the CBSA to support operational awareness, exchange, and delivery with the affected regions. GAC and IRCC continue to identify and assist individuals eligible for resettlement to Canada. CBSA regional operations remain positioned to effectively respond to incoming charter or commercial flights. As new policies are introduced, the CBSA will assess their impact on its current plan and address them according to information received from its federal partners.

Opioids

Canada continues to experience an unprecedented and unrelenting rate of opioid overdose deaths and harms. The COVID-19 pandemic has made the crisis considerably worse, in particular for those most at risk.

The CBSA contributes to the Government of Canada's Canadian Drugs and Substances Strategy by reducing the flow of illicit opioids, precursors and other prohibited drugs across the border. Between January 2016 and August 2021, the Agency intercepted over 51.7 kilograms of fentanyl over 358 seizures.

Some of the key steps taken by the CBSA to combat the opioid overdose crisis include:

• implementing a total of 81 Designated Safe Examination Areas at ports of entry to allow for the safe and efficient examination of goods suspected to contain toxic substances
• launching three Designated Safe Sampling Areas allowing for on-site testing and analysis by chemists of suspected highly toxic substances
• training and deploying six detector dog teams on the fentanyl scent
• providing employees with enhanced personal protective equipment, Naloxone, and detailed policies and procedures for the safe handling of highly toxic substances
• participating in the Organized Crime Joint Operations Centre in partnership with the Royal Canadian Mounted Police and Canada Post to coordinate operational responses in relation to illicit drugs
• working closely with domestic and international partners to disrupt the flow of illicit drugs
• implementing legislative amendments to the Customs Act and other related Acts to better equip both health and law enforcement officials to reduce the harm associated with drug and substance use in Canada

[Redacted] In 2020, the CBSA made fewer seizures of fentanyl from global sources, but seized considerably larger quantities of precursor chemicals. With stricter border controls worldwide on fentanyl and fentanyl analogues, non-scheduled synthetic alternatives and precursor chemicals are now being imported to meet Canadian demand.

Health Canada leads the Canadian Drugs and Substances Strategy, which emphasizes the issue of substance use in general, balances public health and safety considerations, and highlights the importance of demand and supply reduction measures. The CBSA, together with Public Safety Canada and other portfolio partners, helps to reduce the import of illegal substances, including synthetic opioids like fentanyl, which is a key driver of this crisis. Together, this group continues to monitor emerging trends in the illicit drug market and engage with its portfolio and international partners to advance supply reduction policies to mitigate the harms posed by these substances.

Safe Third Country Agreement and irregular migration

Safe Third Country Agreement (STCA)

Responsibility for border security and integrity is shared between the CBSA and the Royal Canadian Mounted Police (RCMP). The CBSA is responsible for enforcement at designated ports of entry (POEs) in Canada, and the RCMP is responsible for enforcement between POEs. Together, the CBSA and Immigration, Refugees and Citizenship Canada (IRCC) administer the Immigration and Refugee Protection Act (IRPA), which governs both the admissibility of people into Canada, and the identification, detention, and removal of those inadmissible under the Act.

The STCA between Canada and the United States (U.S.) has been in effect since December 2004. Under the STCA, persons who are seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception to the Agreement. The STCA was implemented by amendments to the Immigration and Refugee Protection Regulations (IRPR) which authorize the returning of refugee claimants who fall under the criteria of the Agreement to the U.S. for the purposes of holding their refugee claim proceedings. Claimants meeting an exception to the STCA, or being out of scope of the Agreement, are permitted to enter Canada for the purposes of having their refugee claims assessed.

The STCA generally applies to asylum claimants seeking entry to Canada from the U.S. at a land POE. The Agreement does not apply to U.S. citizens or stateless persons residing in the U.S., or those who arrive in Canada from the U.S. by air (with the exception of some persons being deported from the U.S. who are transiting through Canada), or to those arriving in Canada by sea. The Agreement does not apply to persons who meet one of the exceptions provided by the Agreement, such as persons who have a family member in Canada; unaccompanied minors; and persons who hold a valid travel document issued by Canada, or who are from a visa-exempt country for Canada but require a visa to enter the U.S. Refugee claims made by people who have entered Canada between POEs are also out of scope of the STCA. In recent years, very high numbers of asylum claimants have entered at well known crossing sites between POEs.

The primary objectives of the STCA are to enhance orderly handling of refugee claims, strengthen public confidence in Canada's immigration system, and share the responsibility for providing protection to those who meet the refugee definition. Since 2017, Canada has been in continuous contact with the U.S. on border issues, including the desire to modernize the STCA.

Irregular migration

In the last several years, Canada has experienced significantly greater volumes of claimants seeking entry at well-known crossing sites between POEs. [Redacted]

In March 2020, with the onset of the COVID-19 pandemic, several border measures were put in place to support other public health measures (for example, requirements to quarantine) and have been renewed on a regular basis. For instance:

• claimants who arrive between POEs, with some exceptions, are prohibited from entering Canada for the purpose of making a claim under the U.S. Order-in-Council (OIC) Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) currently issued under the Quarantine Act and are directed back to the U.S. until their claims are rescheduled
• claimants who arrive at an official land POE are processed through the STCA, and are exempt from the entry prohibition if they meet an exception to the STCA, are U.S. citizens, or have been granted a National Interest Exemption

The number of refugee claimants seeking to enter Canada has been significantly reduced during the pandemic: in 2020, [Redacted]

In recent years, the STCA has also been the subject of litigation before the FC. A decision by the FC which found that the STCA violated the Canadian Charter of Rights and Freedoms was overturned by the Federal Court of Appeal (FCA), which upheld the validity of the Agreement. The plaintiffs have sought leave to appeal the FCA decision from the Supreme Court of Canada.

Examination of personal digital devices

On October 29, 2020, the Court of Appeal of Alberta ruled in R v Canfield and R v Townsend (Canfield) that paragraph 99(1)(a) of the Customs Act (CA), in the context of personal digital device (PDD) examinations, is unconstitutional to the extent that it imposes no limits on such examinations. Para. 99(1)(a) authorizes the CBSA to conduct a no-threshold examination, stating that "an officer may at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts". In its ruling, the Court determined that the examinations infringed on section 8 (unreasonable search and seizure) of the Canadian Charter of Rights and Freedoms. The Court's declaration of constitutional invalidity was suspended for one year to enable Parliament to make legislative changes to reconcile this deficiency.

As part of its ruling, the Court declared that, for the purposes of para. 99(1)(a), the definition of "goods" (conveyances, animals and any document in any form) in section 2 of the CA to be of no force and effect to the extent it includes the contents of PDDs. This means that the examination of PDDs, while still permitted under other examination authorities, would no longer be permitted pursuant to the no-threshold examination authority in 99(1)(a).

The one year suspension of the Court's declaration of constitutional invalidity is set to expire on October 28, 2021, and while this ruling would only apply in the province of Alberta, [Redacted] There are a number on ongoing cases raising similar constitutional challenges in Ontario and Saskatchewan.

The CBSA examines the contents of PDDs to screen for harmful digital contraband and evidence of contraventions of the CA and other border-related legislation. This is essential in protecting the health, safety, and security of Canadians and visitors. PDD examinations do not occur as a matter of routine and are conducted for regulatory purposes, which means ensuring compliance with the CA, the Customs Tariff and other border-related legislation. For example, the importation of child pornography is prohibited under the Tariff, though, the same evidence may lead police to consider laying Criminal Code charges too.

While jurisprudence recognizes that there is a reduced expectation of privacy at the border, privacy concerns persist around the digital information/documents stored on PDDs. Travellers are seeking assurance that examinations will not exceed what is necessary for border-related regulatory purposes. The Court did acknowledge that screening of PDDs for routine information (for example, valuation of imported goods) did not constitute an unreasonable search; however, it did not provide specific guidance on what changes to existing legislation would bring para. 99(1)(a) of the CA into compliance with the Charter.

The CBSA has a legislated mandate to provide integrated border services that support national security and public safety priorities, and facilitate the free flow of persons and goods. One of the most fundamental methods of meeting this mandate is through the screening and examination of goods at ports of entry for CBSA-mandated regulatory purposes. This includes determining the admissibility of people and goods upon entry; ensuring compliance with the laws of Canada; detecting non-compliance; classifying goods; and assessing and collecting the value for duty.

The CBSA has consulted with its internal and external stakeholders and there was support in moving forward to address the concerns of the Court. [Redacted]

Biometrics

Biometric matching technology is an essential and effective part of CBSA operations. [Redacted]

The CBSA received funding of $857 million over 5 years, on a cash basis ($656.1 million was announced in Budget 2021 on an accruals basis) with $123.8 million ongoing to sustain and modernize the operations of the Agency. The funding was approved as a total amount, for the Agency to propose allocations across its: modernization initiatives (Travellers and Commercial); sustainability proposals; and to support three Canadian preclearance pilots in the United States, that would enable customs and immigration inspections to be completed before goods and travellers enter Canada. A portion of that Budget 2021 funding will allow CBSA to expand automated/touchless interactions with the use of biometrics, particularly facial matching.

Biometric technology compares the unique physical characteristics of a live person to a source of information (like a passport). Right now, the CBSA uses biometric data during traveller and immigration facilitation (such as the broad deployment of kiosks at major Canadian airports), asylum processing, immigration enforcement, and investigations and forensics.

Before COVID-19, traveller volumes were growing unsustainably. To address this challenge, the CBSA and key stakeholders were exploring how technology could facilitate traveller flow while maintaining security. Now that the pandemic has ushered in new public health requirements and advice (such as avoiding in-person interactions wherever possible), biometrics has a new opportunity to play a part in reducing unnecessary face-to-face interactions during travel to increase traveller confidence while facilitating travel flow.

As the use of this technology expands, the CBSA's collection, use, retention and disposal of biometric data will continue to adhere to robust standards and frameworks, including managing data with strong security, privacy and ethical safeguards.

The Agency already has the legal authority to use biometrics for identity verification. Where it doesn't have the authority, the CBSA always seeks consent. The CBSA is authorized under the Immigration and Refugee Protection Act (IRPA) to collect biometric information from foreign nationals (generally excluding U.S. citizens) who have applied for a visa or permit, or as part of an examination. Neither the IRPA nor the Customs Act allow the CBSA to collect biometrics on Canadian citizens or people registered under the Indian Act. Because it doesn't have the express statutory authority to collect biometric information from all travellers, the Agency requires travellers' informed consent to carry out activities that involve biometric technology. [Redacted]

The CBSA has already engaged the Office of the Privacy Commissioner (OPC) in its biometric expansion plans, asking for its assistance in adhering to privacy regulations and legislation and developing comprehensive Privacy Impact Assessments. The Agency is committed to the continued respect for and the protection of the principles of the Privacy Act and the Canadian Charter of Rights and Freedoms as it modernizes its processes.

The CBSA will continue to work with Immigration, Refugees and Citizenship Canada and Transport Canada as they pursue complementary initiatives. The CBSA also plans to engage the Treasury Board Secretariat, and Innovation, Science and Economic Development Canada in their role as the leaders of digital government and identity policies. Further, engagement with international partners (such as the Border Five) will ensure the CBSA aligns with other international biometric models and approaches.

Efforts to modernize the Agency's operations through increased use of biometric matching is an important opportunity for the CBSA to communicate transparently with stakeholders and the general public about how it will:

• lawfully collect, use, retain, dispose and disclose biometric data
• dispel any associated myths
• continue to hold itself to the highest ethical, security and privacy standards in data and algorithm use

Consultations with non-governmental organizations and the academic community are also planned, allowing the CBSA to receive feedback on its ideas and evolve its thinking in this dynamic space.

Border crossing issues for Indigenous People

The creation of Canada's borders physically divided many Indigenous Nations and their traditional lands, creating complex challenges to their cross-border movement and impacting traditional practices, economic opportunities and familial and cultural ties. Indigenous Peoples in Canada have long expressed concerns regarding their mobility rights, challenges crossing the Canada-United States (U.S.) border and Inuit mobility in the North.

Indigenous Peoples—First Nations, Métis and Inuit—are recognized in the Canadian Constitution as section 35 rights-bearing Aboriginal people with unique histories, languages, cultural practices and spiritual beliefs.

Acting on a recommendation made by the Standing Senate Committee on Aboriginal Peoples, the Minister of Indigenous and Northern Affairs Canada appointed Fred Caron as the Minister's Special Representative (MSR) in December 2016 to:

• engage with First Nations in border communities to gain a better understanding of their unique perspectives
• explore solutions to the Canada-U.S. border crossing challenges they face
• produce a report by August 31, 2017

In August 2017, the MSR presented his report on First Nation Border Crossing Issues, which directly implicated the CBSA in three areas: 1) issues of treatment by CBSA officers; 2) the location of specific ports of entry; and 3) unique challenges faced by the Akwesasne community.

In response to the MSR report, in December 2018 near-term measures were announced by the Government that included recruitment strategies for Indigenous Border Services Officers, enhanced cultural training for CBSA staff and increased outreach and cooperation by the CBSA with First Nations.

Since 2018, to address the second and third areas of recommendation made by the MSR, the CBSA and the Mohawk Council of Akwesasne have collaborated to create the Border Collaboration Initiative (BCI), a partnership to co-develop solutions to the unique and complex border challenges in the Cornwall-Akwesasne area. [Redacted]

The mobility rights of Indigenous Peoples are multi-faceted, with various federal departments responsible for legislative regimes that impact different aspects of Indigenous mobility and its enforcement. Recognizing these unique circumstances, a number of federal partners are working collaboratively with concerned Indigenous Nations and individual communities to identify and advance solutions.

The April 2021 Supreme Court of Canada (SCC) decision in R. v. Desautel upheld the British Columbia lower courts' rulings that Mr. Desautel, a resident of the U.S. who is neither a Canadian citizen nor permanent resident nor person registered as an Indian under the Indian Act, may assert and exercise an Aboriginal right under s. 35 of the Constitution Act, 1982. The SCC's decision does not address the question of whether Mr. Desautel also has an incidental cross-border mobility right allowing him to enter Canada in order to exercise his Aboriginal right to hunt and fish. However, as a result of the SCC decision, section 35 rights may now be extended to Indigenous people residing in the U.S. With this recognition of rights comes a potential duty to consult with these groups in parallel with consultations with affected Indigenous Peoples in Canada.

The actions of the CBSA with respect to engagement and consultation with Indigenous Peoples are further guided by the passage of Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act into law in June 2021, which affirmed the declaration as a universal, international, human rights instrument with application in Canadian law.

[Redacted]

By taking a distinctions-based approach and working collaboratively, both internally and with concerned Indigenous Nations and individual communities, the CBSA is able to identify and advance workable and sustainable solutions to a number of border crossing concerns.

Through the Indigenous Affairs Secretariat – a dedicated, permanent body that provides knowledgeable, mindful and effective capacity regarding Indigenous matters – the CBSA will continue to take proactive action to make operational changes within its purview to improve the border crossing experience for Indigenous Peoples. It will also continue to play an active role in assessing the viability of all proposed solutions to Indigenous border crossing issues, including working with Indigenous and Government of Canada partners to address policy areas and barriers related to mobility, Indigenous identification at the border and cross-border trade.

Environmental sustainability

Canada is stepping up its commitments to combat climate change and reduce greenhouse gas (GHG) emissions with accelerated targets at both the pan-Canadian and federal level. The Government of Canada has identified mitigating climate change and fostering a green economy as key priorities. The CBSA is well positioned to meet and potentially exceed its environmental targets and commitments, as presented in the Agency's 2020 to 2023 Departmental Sustainable Development Strategy (DSDS).

The 2020 Speech from the Throne outlined Canada's commitment to building a more resilient future transitioning to net-zero carbon emissions by 2050, while fostering a green economy. In support, the 2021 Budget announced $17.6 billion towards creating green jobs, building a clean economy, and taking action to combat climate change.

In June 2020, the CBSA tabled its 2020 to 2023 DSDS which outlined how the Agency would respect commitments made under the Federal Sustainable Development Strategy (FSDS), the Greening Government Strategy (GGS) and the Pan-Canadian Framework on Clean Growth and Climate Change. This will be achieved by utilizing Government of Canada tools and programs which enable federal departments to meet their goals, implementing energy efficiency measures, purchasing zero-emission vehicles, acquiring clean electricity agreements, and maintaining a robust environmental compliance strategy to ensure the health and safety of our employees.

The CBSA's Environmental Operations Division (EO) is responsible for the development and implementation of the DSDS. [Redacted]. The EO has expanded its program of work to cover green house gas (GHG) emissions reductions and reporting, sustainable development policy and planning, and ensuring environmental compliance to 19 federal acts and 70 regulations, as well as provincial and municipal legislation applicable to CBSA facilities.

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Equity, diversity and inclusion

On January 22, 2021, the Clerk of the Privy Council and Secretary to the Cabinet released the Call to Action on Anti-Racism, Equity and Inclusion in the Federal Public Service, and requested that Deputy Ministers provide a response that describes how their organization is taking action to advance anti-racism, equity and inclusion in the federal public service.

In response, the CBSA created an Anti-Racism Task Force that includes representatives from all regions and national headquarters, and is led by an Assistant Deputy Minister. The task force launched an Anti-Racism Strategy in March 2021, which includes concrete actions to be taken over the following three years. Regular reporting and updates on the strategy are being provided to the Agency's executive table to maximize its success.

Agency senior management has also committed to increasing workforce representation through concrete and measurable actions in all four designated employment equity (EE) groups. This work will be guided by the recently endorsed Employment Equity, Diversity and Inclusion (EEDI) Strategy for 2021 to 2024.

As of June 30, 2021, the Agency's overall representation rates by full-time equivalent (FTE) were:

The above representation rates fluctuate greatly among branches, regions/districts, and lower levels; overrepresentation in some regions/branches disguises severe underrepresentation in others. As such, the Agency still has work to do in ensuring the workforce is representative in all locations and occupational groups.

To date, the Agency's equity, diversity and inclusion work has focused on:

• Providing managers and employees with expectations, guidance and direction around racism and inclusion, including during hiring and recruitment
• Equipping employees and managers with training to prevent racism and unconscious bias
• Tackling racism through awareness and changing mindsets
• Addressing the mental health needs of those directly or indirectly impacted by racism or discrimination

In an effort to increase accuracy in workforce representation data, the Human Resources Branch is also in the process of launching a communication and awareness strategy encouraging affected employees to self-identify as a member of one or more designated EE groups.

Moving forward, the Agency's EEDI priorities are to:

• Increase representation rates for all equity groups, particularly in management and senior management; this includes creating paths for advancement and developing sponsorship and talent management programs for employees in EE groups who exhibit high potential
• In support of the Government's commitment to hire 5,000 new employees with disabilities over five years, the CBSA has set an ambitious target of 750 FTEs with disabilities by the end of 2025
• Increase the focus on inclusion throughout the employee lifecycle while maintaining ongoing recruitment efforts and paying attention to culture and the Agency's work environment in order to increase the retention of diverse talent

Through the delivery of complementary and interdependent strategies – such as the EEDI Action Plan, the Anti-Racism Strategy, the Agency Accessibility Strategy and the Indigenous Workforce Strategy – the CBSA is making deliberate and intentional steps toward eliminating systemic racism, discrimination, and other barriers affecting any and all employment equity groups, including the LGBTQ2+ community. To monitor and measure progress, task force leaders have instituted biannual reviews of all commitments, targets and priorities so that they align with the evolving action plans being delivered at all levels and locations.