Ministerial transition 2019: Minister's book
Environment

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Canada – United States relations

Issue

To continue to maintain and build a bilateral border management relationship with key United States (U.S.) partners that will support the CBSA's mandate and advance the Government of Canada's interests and priorities.

Strategic considerations

U.S. Counterparts

Similar to the structure of the Public Safety Portfolio in Canada, 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 (POE), 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. In Canada, this responsibility falls under the Royal Canadian Mounted Police (RCMP).

Your Ministerial level counterpart in the U.S. is the Secretary of Homeland Security. The position remains vacant as the most recent DHS Secretary, Kevin McAleenan, tendered his resignation to President Trump on October 11, 2019. Mr. McAleenan was appointed on an acting basis by President Trump in April 2019. Prior to this appointment, he was the Commissioner of U.S. CBP. The current Commissioner is Mark Morgan, who was appointed to the position on an acting basis since June 2019.

Overview and state of Canada-U.S. Border management relations

The CBSA has built an excellent and highly productive relationship with its U.S. partners, primarily with CBP, ICE and the DHS, from the executive ranks to the working level. This relationship is driven by the need for innovative solutions to address a joint border that is characterized by a complex threat environment as well as rising volumes across all business lines (for example, travellers, postal).

Each year, a CBSA-U.S. CBP Joint Senior Executive Meeting (JSEM) takes place to bring together senior executives from both Agencies to discuss key issues and to set joint commitments for the upcoming year. The CBSA also participates in other fora with the U.S. to advance joint key priorities in the areas of customs and immigration, such as the Border Five (B5), Migration Five (M5) and the World Customs Organization (WCO).

Recent deliverables/Successes

The CBSA continues to leverage its relationship with its U.S. partners to yield tangible results, including the ratification of the Land, Rail, Marine and Air Preclearance Agreement (LRMA), the implementation of the final phase of the Entry/Exit Initiative and joint cooperation on innovative pilot projects (biometric/facial recognition and NEXUS modernization).

In addition to these achievements, the CBSA and U.S. CBP work daily at the operational level, promote officer exchanges at each countries' respective National Targeting Centres, and participate in bi-national committees and working groups. As part of CBSA's modernization efforts, it is currently collaborating with U.S. CBP on a number of innovative joint pilot projects, such as [redacted]

Challenges to managing the border relationship

[redacted]

Joint pilot projects

Based on an existing commitment made at the 2018 JSEM, the CBSA is exploring 2 pilot projects with the U.S. CBP that align with Agency priorities:

[redacted]

Engagement with U.S. partners in 2020

The pace of engagement with the U.S. to address these priorities and moving forward with joint projects [redacted]

The Government of Canada is well placed in 2020 to advance its priorities as it steps into the role of Chair of the Border Five (B5) and co-chair of the Migration Five (M5) (with IRCC). The CBSA will continue to engage with U.S. operationally on a daily basis, and through senior executive dialogue.

Advice to minister

[redacted]

Annex: The CBSA's role in CUSMA implementation

[redacted]

Brexit

Issue

The United Kingdom (UK) is currently scheduled to withdraw its membership from the European Union (EU) on January 31, 2020 (known as "Brexit"). Should Brexit lead to changes in the Customs Tariff Act, the CBSA is working with the Privy Council Office (PCO), the Treasury Board Secretariat (TBS), Global Affairs Canada (GAC), and Finance Canada (Finance) to ensure it is ready to implement such changes on short notice and inform the trade community.

Considerations

The implementation of Brexit, originally scheduled for March 29, 2019, has been delayed to January 31, 2020. Currently, there is uncertainty as to whether the UK will leave the EU with or without a withdrawal agreement that provides for a transition period during which the UK would still be bound by EU rules, including treaties such as the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).

[redacted]

Given the uncertainty surrounding Brexit, and inquiries from the trading community, the CBSA has developed holding lines, in consultation with GAC, Finance, the PCO, and the TBS. This will ensure consistent and accurate responses from the Agency on this issue and to help mitigate any confusion among the trade community surrounding Brexit by making it clear that the CBSA will ensure that any changes to the Customs Tariff Act are communicated to the public.

Advice to minister

The CBSA is working closely with the PCO, the TBS, GAC, and Finance to ensure a coordinated approach to respond to any Brexit scenario.

[redacted]

We will continue to keep your office informed of any changes as they develop.

External review bodies: National Security and Intelligence Committee of Parliamentarians and National Security and Intelligence Review Agency

In 2017, the Government of Canada committed to modernizing the external review of national security and intelligence activities by creating 2 new review bodies:

• the National Security and Intelligence Committee of Parliamentarians (NSICOP)
• the National Security and Intelligence Review Agency (NSIRA)

The NSICOP is focused on providing high-level assurance to Ministers and Canadians that national security and intelligence activities are well governed. The NSIRA is focused on ensuring activities are compliant with legislation and policies at a more detailed program level (refer to Annex: Comparative table — NSICOP and NSIRA).

Under the National Security and Intelligence Committee of Parliamentarians Act, the NSICOP has a mandate to review:

• the legislative, regulatory, policy, administrative and financial framework for national security and intelligence
• any activity carried out by a department that relates to national security or intelligence unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security
• any matter relating to national security or intelligence that a Minister of the Crown refers to the NSICOP

Under the National Security and Intelligence Review Agency Act, the NSIRA has a mandate to:

• review any activity carried out by the Canadian Security Intelligence Service (CSIS) or the Communications Security Establishment (CSE)
• review any activity carried out by a department that relates to national security or intelligence
• review any matter that relates to national security or intelligence that a Minister of the Crown refers to the NSIRA
• investigate any complaint related to CSIS, the CSE, or related to the national security activities of the Royal Canadian Mounted Police

The NSICOP completed its review of the CBSA's national security and intelligence activities in 2019. It is anticipated that its findings will be tabled in the 2019 to 2020 Annual Report of the NSICOP, scheduled for winter 2020.

Annex: Comparative table — NSICOP and NSIRA

Litigation overview

The CBSA currently manages litigation involving front-line enforcement measures, immigration, customs, trade, and human resources matters as well as other non-operational litigation stemming from allegations of negligence, motor vehicle accidents, slip and falls, and contract disputes, etc. In addition, the CBSA is involved in criminal prosecution referrals made to Public Prosecution Services Canada (PPSC), and pay for border-related criminal files that have been referred by the Royal Canadian Mounted Police (RCMP) to the PPSC for action. The nature of the civil litigation cases range from statutory appeals and actions, judicial reviews and other applications, appeals to various levels of appellate courts, motions, constitutional questions and Charter challenges, civil claims for damages as well as appeals and complaints before various boards and tribunals.

The CBSA may be involved in litigation as a defendant or respondent, plaintiff or applicant, and an interested third party. Most commonly, the CBSA is the defendant or respondent. For the 2018 to 2019 fiscal year, the CBSA was a defendant or respondent in 90% of actively managed litigation files, in other words, files in which Department of Justice counsel are involved. Litigation involving the CBSA is predominantly in the form of a judicial review, but also includes stays of removal, actions, appeals, and proceedings before administrative tribunals (for example, Immigration and Refugee Board for immigration matters and Canadian International Trade Tribunal for customs matters). For the 2018 to 2019 fiscal year, judicial reviews accounted for 43% of CBSA's actively managed litigation files, with stays close behind at 31%. In contrast, appeals and actions each accounted for 9% of CBSA's actively managed litigation files. Proceedings before administrative tribunals only accounted for 3% of CBSA's actively managed litigation files.

The most prominent type of litigation facing the CBSA is immigration-related; immigration matters generally relate to the following issues: admissibility, ministerial relief, refugees, detention, removals, security certificates, citizenship revocation, and the Safe Third Country Agreement (STCA). The other portion of litigation facing the CBSA is customs-related and consists primarily of enforcement appeals. Finally, non-operational litigation deals with claims for damages arising primarily in tort law following incidents at ports of entry and/or through inland activities.

Status

The area or branch implicated in a particular piece of litigation is responsible for monitoring the status. Litigation managed within the regions mainly relates to immigration matters, non-operational civil claims for damages as well as criminal prosecution. Litigation within Headquarters generally involves enforcement actions (Recourse), immigration measures (Litigation Management Unit), trade disputes (Recourse and Trade Programs) and labour relations redress (Human Resources), and related civil claims for damages.

Considerations

[redacted] We would refer you to the other note on Ministerial Legislative Authorities (tab A3) for additional information on these issues.

The Minister can expect to be informed on high profile cases receiving significant media or public attention.

Next steps

Detailed briefings on cases can be provided upon request as consultation is required with implicated areas within the CBSA and/or the Department of Justice, as needed.

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 interpretations of collective agreements to federal departments and other portions of the core public administration.

CBSA's workforce has membership in 6 of the 15 bargaining agents, broken down as follows:

Public Service Alliance of Canada (PSAC)

The PSAC is the largest union covering federal public servants and represents 11,830 CBSA employees, or 88% of the Agency's workforce. This includes 10,405 in the Frontière-Border (FB) classification. While the CBSA has employer representation at the FB negotiating table, it is not represented at the other PSAC-TBS bargaining tables. To note, all collective agreements with PSAC are expired and negotiations with TBS are underway.

Professional Institute of the Public Service of Canada (PIPSC)

The PIPSC represents 783 CBSA employees. The collective agreement for the Computer Systems (CS) classification is the only one that remains expired with PIPSC, and the CBSA has an employer seat at this negotiating table.

Association of Canadian Financial Officers (ACFO)

The ACFO represents 187 CBSA employees. A collective agreement is in place.

Canadian Association of Professional Employees (CAPE)

The CAPE represents 177 CBSA employees. A collective agreement is in place.

International Brotherhood of Electrical Workers (IBEW)

The IBEW represents 8 CBSA employees. A collective agreement is in place.

Professional Association of Foreign Services Officers (PAFSO)

The PAFSO represents 4 CBSA employees. A collective agreement is in place.

The CBSA will keep you apprised on negotiations with the bargaining agent as required.

Media scan

(April to October 2019)

Overview

The last 6 months have seen media coverage on a variety of issues linked to the CBSA. The most high-profile and contentious coverage has been devoted to issues around irregular migration and immigration enforcement. While lower in profile, coverage of issues surrounding officer misconduct and the need for third-party review of such matters has been consistently negative. In addition, the media has focused on the continuing challenges of cross-border firearms and drug smuggling along with the presence of Mexican cartels allegedly tied to the lifting of visa requirements. Most recently, the extradition hearing and related civil suit regarding Meng Whanzou and CBSA's involvement has been a regular source of national reporting. Coverage has also remained consistent on other topics including ongoing court proceedings, privacy at the border and managing the legalization of cannabis amidst ongoing border restrictions.

Summary

Irregular immigration and immigration enforcement

National coverage of asylum seekers has continued to be significant, with tone ranging from neutral to unfavourable. Most coverage has revolved around Roxham Road, near Lacolle, in Quebec, but has also focused on statistics and process, and front-end security screening. Within Quebec, there has been a focus on eliminating the pilot project to screen asylum seekers crossing near Lacolle, as well as the federal government's announcement to provide $250 million to Quebec for costs related to resettling refugees and asylum seekers.

Meanwhile, coverage of removals has been significant and often negative. The last 6 months have seen a particular interest in the Agency's removal of inadmissible individuals, with a focus on failed asylum seekers and those with criminality. There has also been focus on 2 specific high profile cases, including:

• Othman Hamdan (British Columbia), accused of praising ISIS and terrorism online. This has garnered moderate coverage factual/balanced in tone, shifting to negative since his release.
• Abdiliha Elmi (Alberta), a Somalian refugee who has lived in Canada for more than 20 years. This case has garnered significant and negative national media coverage, owing in part to a strong push from activists and the United Nations to stay his removal.

Thirdly, issues surrounding immigration detention have gained consistent, negative, national media coverage. Overall, coverage has decreased corresponding with a general decline in the number of detainees held and the length of detention. Coverage previously focused on the use of provincial correctional facilities to house detainees, the number of children being held, and the use of defensive equipment by CBSA officers at Immigration Holding Centres (IHC). Meanwhile, coverage in Quebec has held a keen interest on the future IHC in Laval (to be operational in 2021). Coverage has been largely negative, denouncing the construction and amplifying criticism from opposition groups.

Contraband and dangerous individuals

National media interest in firearms at the border has been consistent, significant, and often negative. Recent coverage has focused on the Ontario Association of Chiefs of Police (OACP) characterizing smuggling as the root cause of gun violence in Canada. The OACP believes that its border security partners, including the CBSA, do not possess adequate resources to stop the smuggling of firearms. In response, the CBSA highlighted significant seizures, resulting in some positive, regionalized coverage.

Opioids (such as fentanyl) and the CBSA has been a focus of media coverage with emphasis on shipping fentanyl through the mail and some resulting seizures. Coverage on such maters tends to be neutral to positive. Stories however focusing on the opioid crisis more broadly and its effects on communities, tend to be more negative and include calls for greater action.

Apart from contraband, media coverage on dangerous individuals crossing into Canada has been a focus, specifically with regard to Mexican cartels. Coverage has been mostly negative, focusing on alleged large numbers of Mexican cartel members living in Canada, mostly in Quebec, with an assumed connection to the federal government's lifting of Mexican visa requirements. This said, an internal analysis conducted by CBSA has found that this is not the case, leaving the Agency in a positive position to counter such claims going forward.

Officer conduct and the call for independent review

The past few months have seen an increased focus on issues of alleged officer misconduct and the push for complaints about officers to be subject to third party review. National media coverage has been moderate on the issue of creating a new review body for the CBSA. Coverage was steady leading up to and including when the former Bill C-98 was tabled and increased again once the bill died in the Senate.

The lack of third party review is often noted in media stories about complaints involving CBSA officers. Coverage on such matters has ranged from official languages complaints and alleged racially-motivated mistreatment of travelers. In addition, there has been recent media coverage and interest on the subject of personal searches at the border. This was the subject of a widely covered June story by CBC focused on a former Sunday school teacher who was allegedly treated harshly by officers and strip searched to no avail at Vancouver International Airport. In this story as well as others, the media has been critical of the CBSA and has heavily emphasized the lack of an independent review body.

Privacy and the CBSA

The use of personal information continues to be a generator of media coverage about the Agency. Recently, media coverage regarding the hacking of Perceptics (a company contracted by the CBSA to operate license plate readers) has been moderate. The coverage has been mostly factual in tone, with the focus being on the hacking incident and the announcement that the Office of the Privacy of Commissioner will be investigating. This story follows other privacy-related matters involving the CBSA, including searches of travellers' smartphones and the power of officers to demand user passwords; an issue that has been questioned by certain courts and promises to remain an ongoing issue.

Ongoing matters of litigation

Media coverage on matters of litigation have been consistent, usually factual, but oftentimes negative. Over the last 6 months, focus on high profile litigation cases has included:

• Meng Wanzhou: Coverage has largely focused on the proceedings' unfolding. Specific to the CBSA, there has been some negative coverage surrounding her arrest and ensuing civil case. Some reporting has stated that the CBSA may have violated her rights by not immediately telling her that there was a warrant out for her arrest and that the CBSA abused its search powers by collecting evidence for the FBI.
• Jody Swamp: Media coverage focusing on this Cornwall port of entry (POE) related class-action lawsuit has been moderate and regionally focused in the Eastern Ontario region. The tone has been mostly unfavorable, as media have detailed, at length, allegations of mistreatment of Mohawk residents at the Cornwall POE.

Cannabis and the border

National media coverage has remained consistent on the issue of cannabis. From a CBSA perspective, coverage is related to: the increase in cannabis seizures and declarations at the border; officer training since cannabis legalization; what travellers should know when entering/exiting Canada with cannabis and/or cannabis products; and what impacts (if any) this will have on border wait times. Most articles are factual and neutral in tone, and convey the Agency's main message: "Don't bring it in. Don't take it out." One issue garnering negative attention is the lack of clarity around carrying CBD oils.

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Date modified:

2020-03-18