Financial overview and legislative authorities: President transition 2022

Financial overview

Fiscal year 2022 to 2023 Main Estimates

The total funding approved through the 2022 to 2023 Main Estimates is $2,344.1 million ($2,131.7 million in voted appropriation and $212.4 million in statutory). This excludes funding anticipated through Budget 2022.

Overall, the CBSA's total authorities (voted and statutory) for 2022 to 2023 have a net increase of $294.6 million increase (14.4%) from the previous year's Main Estimates.

The funding is comprised of:

• $1,958.6 million under Vote 1 – Operating Expenditures
• $173.1 million under Vote 5 – Capital Expenditures
• $212.4 million in Employee Benefit Plans

Budget 2022

In April, 2022, the Minister of Finance tabled the 2022 Federal Budget, entitled "A Plan for Economic Growth, Inclusion, and Resilience". The Budget focused on a plan to support Post-COVID economic resilience through a green and innovative economy and to ensure a growing and inclusive economy that creates jobs and growth for Canadians, as well as a fair and responsible government. The following are the funding announcements in relation to CBSA-led and OGD-led initiatives.

CBSA-Led

The CBSA received funding for the following initiatives– (detailed funding profile TBC):

CBSA Anti-dumping and Countervailing Program - $24.4 million/5yrs – $7.5 million ongoing to create a Trade Remedy Counselling Unit.

ArriveCan maintenance - The government decided to provide $25 million in 2022 to 2023 to the CBSA in support of the maintenance of the ArriveCAN application to support the current public health posture at the border during the COVID-19 pandemic.

Permanent funding for the ArriveCAN application should be considered in the context of its integration with the Canada Border Services Agency's traveller modernization strategy, including specific details on how the application will be adopted as a border management tool beyond the pandemic.

Additionally, the Canada Border Services Agency is directed to return in Budget 2023 with a long-term plan that outlines how ArriveCAN will be integrated within the broader traveller modernization strategy.

OGD-Lead

CBSA also received funding in Budget 2022 for the following initiatives:

Stabilization of the In-Canada Asylum System (IRCC Lead)

The Government decided to provide funding of $1.3 billion over five years starting in 2022 to 2023, and $331.2 million per year ongoing, to support increased capacity for Canada's asylum system.

Sustainable Temporary Resident Funding (IRCC Lead)

The Government decided to provide $385.7 million over five years, starting in 2022 to 2023, with $0.8 million in remaining amortization, and $86.4 million ongoing to Immigration, Refugees and Citizenship Canada, the Canada Border Services Agency and the Canadian Security Intelligence Service to process a higher expected number of applications for temporary residence in Canada.

Immigration Levels Plan—including the government's increased commitment to Afghan refugees (IRCC lead)

The Government decided to provide $1.9 billion over five years, starting in 2022 to 2023, with $46.8 million in future years, to Immigration, Refugees and Citizenship Canada and partner departments to resettle an additional 10,000 Afghan refugees above the platform commitment, for 50,000 total Afghan refugees by early 2024.

Budget 2021

In total, $857 million over 5 years on a cash basis starting in 2021 to 2022 ($656 million on an accrual basis) and $124 million ongoing for the CBSA was announced through Budget 2021 for the following initiatives:

The CBSA received funding in support of CBSA Modernization (Traveller and Commercial), Sustainability and Pre-Clearance. Funding will set the stage for transforming the border experience for travellers through touchless and automated interactions, enhance the CBSA's ability to detect contraband, and help protect the integrity of Canada's border infrastructure. Funding will also 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. These initiatives will help preserve the security and integrity of Canada's borders while expediting the flow of legitimate travel and trade.

Sustainability efforts include funding for: legacy recapitalizing buildings and replacing equipment; revenue generation; management integrity and reducing and optimizing IT legacy backlog, which include the migration of applications to the cloud, as well as building enterprise capabilities by stabilizing networks and aligning infrastructure and bandwidth to volumes.

Budget 2021 also announced funding for joint initiatives for the CBSA, IRCC and other partners, and included:

$29 million for IRCC and CBSA for the 2021 to 2022 Temporary Residents program to maintain enhanced capacity to serve visitors applying for temporary resident visas and permits. The CBSA will confirm the level of funding which will be drawn into the Agency with partner organizations.

$429 million over 5 years starting in 2021 to 2022, which was provisioned for various federal government departments through the Digital Platform Modernization initiative (the modernization of the IRCC's Global Case Management System (GCMS)). The CBSA will work with partners to determine the exact amount that the Agency will receive. The funding will be used to develop and deliver an enterprise-wide digital platform that would gradually replace the legacy GCMS.

Off-Cycle funding approvals have been received for the Firearms Initiative

The budget provided $312 million over five years, starting in 2021 to 2022, and $41.4 million ongoing, to implement legislation to help protect Canadians from gun violence and to fight gun smuggling and trafficking. For this initiative, the off-cycle funding decision provided the CBSA with $41.4 million over six years and $6.8 million ongoing to, among various other things, enhance its intelligence and investigative and information-sharing capacity.

The Delegation of Spending and Financial Authorities Matrix is included here for your review.

Delegation of Spending and Financial Authorities (DSFA) Matrix

Every Officer of the Agency appointed to a position listed on the Summary Chart and on the List of Equivalent Positions, including those officially appointed on an acting basis, is hereby granted spending and financial signing authorities within the stated limits therein and in accordance with relevant statutes, regulations, policies, directives, standards and guidelines. Limits may be modified from time to time under the authority of the President to reflect changes in authorities as approved by the Treasury Board.

Notes

1. This Summary Matrix must be read in conjunction with the corresponding "DSFA Supporting Notes" document and the relevant legislation and Treasury Board and Agency policy instruments
2. Authorities are delegated to positions identified by title
3. Authorities which extend to the full balance available in the relevant budget are limited by the Financial Administration Act (FAA) and its Regulations and Treasury Board and Agency policy instruments
4. Certification authority (Section 34, FAA) and payment authority (Section 33, FAA) for a particular payment are not to be exercised by the same person.
5. Delegated spending and financial authorities are not to be exercised by any person who may personally benefit from the transaction
6. No person may exercise the authorities delegated to a position on an acting basis unless properly designated in writing by an officer to whom the incumbent of the position reports

Part A: Expenditure initiation authority section 32 FAA

Part B: Transaction authority section 41 FAA

Part C: Certification authority section 34 FAA

Part D: Payment authority section 33 FAA

Part E: Other authorities

Legislative Authorities / Designations and Delegations

Overview

This document provides a breakdown of legislative authorities under the Canada Border Services Agency (CBSA) mandate that rest exclusively with the President of the CBSA, and an overview of the ministerial authorities.

Background

While the CBSA administers more than 90 acts, regulations, and international agreements, many are on behalf of other federal departments and agencies, the provinces and the territories. Most of the day-to-day functions and duties found in the CBSA program legislation have been delegated by the Minister of Public Safety and Emergency Preparedness (the Minister) and/or President of the Agency to the Vice-President level and below, or are exercised by designated officials. The delegation and designation of legislative authorities is common practice across the Government of Canada, and includes cases where ministers share legislative responsibilities.

A Delegations and Designations (D&D) Document is an instrument in which the Minister or the President either delegate to particular officials (or classes of officials) the various specific statutory powers, duties, and authorities expressly conferred on the Minister or the President, or designate which particular officials or classes of officials may exercise the various specific statutory powers, duties and authorities expressly conferred on officers. The CBSA D&D Document contains delegations for the vast majority of the Ministerial and Presidential legislative authorities and designations for most officer authorities. The D&D Documents provide clarity as to who may perform the various functions set out in the legislation and therefore provide greater certainty that a decision or an authority is being exercised lawfully.

Some of the CBSA's key pieces of legislation are the Canada Border Services Agency Act (CBSA Act), the Customs Act, the Customs Tariff Act, the Immigration and Refugee Protection Act (IRPA), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA), and the Special Import Measures Act. An explanation of the authorities under these Acts follows in the section below. To fulfill the CBSA's mandate, legislative authorities generally are administered and enforced by Border Services Officers at the border.

Considerations

The Canada Border Services Agency Act

The Canada Border Services Agency Act, which establishes the Agency, came into force on December 12, 2003. It defines "program legislation" that the CBSA is responsible for administering and enforcing. The table below highlights the differences between the Ministerial and Presidential responsibilities regarding the Agency under this Act.

The President approves most of CBSA's D&D Documents, with the exception of the IRPA D&D Document. This is permitted by section 12 of the Canada Border Services Agency Act, wherein the President of the Agency is legally entitled to assume the powers granted to the Minister described in any of the acts that meet the definition of "program legislation"; this includes the Minister's authority to make D&Ds. The President is asked to approve the D&Ds to allow for more flexibility and to respond expeditiously to the ongoing operational requirements to designate new officers or officers with new designated duties.

The Customs Act

The Customs Act is one of the primary pieces of legislation that the CBSA administers and enforces. It deals mostly with the presentation of persons upon their arrival in Canada and reporting of goods upon their import of export from Canada. Among other things, it sets out the legislative authority to control the importation and exportation of goods. The Customs Act gives CBSA officers the authority to, for example, search persons, examine imported or exported goods, and detain or seize goods in cases of non-compliance.

Section 2 of the Customs Act is noteworthy because it deals with delegations. In particular, subsection 2(3) provides that the powers, duties, and functions of the President of the CBSA may be exercised or performed by any person authorized by the President. Subsection 2(4) allows the Minister to delegate any of the Minister's duties under the Customs Act, including judicial or quasi-judicial functions (for example, according to section 131 of the Customs Act, the Minister has the authority to consider and weigh the circumstances of particular cases – such as the seizures of goods or conveyances – and decide whether the Act or the regulations were contravened). Section 9(2)(a) of the CBSA Act provides the President with the authority to designate officers for purposes of the Customs Act, and to specify which powers or duties such officers may exercise. These delegations and designations are captured in the Customs Act D&D Document.

There are no ministerial designations under the Customs Act as the term 'officer" is defined in the Act. However, when specified, the President must designate officers to have specific authority to act (for examlple, according to section 42.01 of the Customs Act, the President must designate officer to conduct a verification of origins in respect of imported goods).

The President signs all D&D Documents under the Customs Act, including those that belong to the Minister.

In total, there are 6 non-delegated authorities of the Minister under the Customs Act, and 3 non-delegated authorities of the President (see the table below). These authorities are exercised infrequently and under specific circumstances.

The Customs Tariff Act

The Customs Tariff Act is an Act concerning, amongst other things, the imposition of duties of customs and other charges, the International Convention on the Harmonized Commodity Description and Coding System, and the relief against the imposition of certain duties of customs or other charges. The ministerial authorities relating to this Act are all delegated below the Vice-President level except all authorities to make Regulations. Only subsection 68(3) is not delegated below the President.

68(3) The President of the Canada Border Services Agency may relieve goods from payment of a surtax on agricultural goods imposed by an order if the President is of the opinion that
(a)  the goods were purchased for importation in the expectation in good faith that the surtax would not have applied to those goods; and
(b)  the goods were in transit to the purchaser in Canada.

The Immigration and Refugee Protection Act and the Citizenship Act

The responsibility for the administration and enforcement of IRPA is mainly divided between the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration (CIC). Each minister has sole responsibility for some aspects of IRPA, while the 2 ministers share responsibilities for other sections of the Act. The Minister's specific responsibilities under section 4(2) of this Act relate to examinations at ports of entry; the enforcement of this Act, including arrest, detention and removal; the establishment of policies respecting the enforcement of this Act and inadmissibility on grounds of security, organized criminality or violating human or international rights; and declarations referred to in section 42.1.

Subsection 6(2) of the IRPA states: "Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing without proof of the authenticity of the authorization" [emphasis added]. As such, the Minister must personally sign any Documents delegating his powers, duties or functions per subsection 6(2) of the IRPA (as opposed to the approval process under the Customs Act).

The President retains the authority to make all designations not falling under the ambit of subsection 6(2) (for example, according to section 138 of the IRPA, the President must designate officers to have the authority and powers of peace officers to enforce the IRPA).

Almost all authorities within IRPA are delegated to officers below the Vice-President level. There are 80 items of delegations and designations approved by the Minister in relation to the IRPA, which are included in the CBSA IRPA D&D Document. The Minister may not, however, delegate the powers conferred by subsection 20.1(1) (irregular arrivals), or subsection 42.1(1) or (2) (Ministerial relief) or 77(1) (security certificates) of the Act. These authorities are infrequently used and only in specific circumstances.

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act

The principal objectives of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) are to combat both the laundering of proceeds of crime and the financing of terrorist activities, and to establish the Financial Transactions and Reports Analysis Centre of Canada. Authorities within this Act are shared between the Minister, the President and the Minister of Finance. Most authorities are delegated below the Vice-President level, with the exception of the following:

There are two PCMLTFA D&D Documents, one that belong to the Minister, and one that belongs to the President. The President does not signs the ministerial PCMLTFA D&D document for the Minister.

The Special Import Measures Act

The Special Import Measures Act (SIMA) is the primary legislation governing Canada's trade remedy system. Its objective is to provide for the application of duties to address situations where dumped and subsidized imports cause injury to domestic producers, and to help protect Canadian industry from these unfair trade practices. Authorities within this Act are shared between the Minister, the President, the Minister of Finance and the Minister for International Trade, specifically in the context of international treaties. The vast majority of the authorities not involving international treaties belong to the President and the authorities he or she delegates remain at a high level (Vice-President, Director General, Director). Very few authorities are delegated at officer level. Three authorities belong to the Minister, and these were delegated to the President, as follows:

There are two SIMA D&D Documents, one that belong to the Minister, and one that belongs to the President. The President does not sign the ministerial SIMA D&D Document for the Minister.

Customs Offices and Ports of Entry designation

The Minister has the authority, under section 5 of the Customs Act, to designate, amend, cancel or reinstate Customs Offices, and specify their purpose. This authority has been delegated, to the President, Executive Vice-President, and Vice-Presidents of the CBSA.

The Minister also has the authority to designate Ports of Entry (POEs), as well as their dates and hours of operation, as per section 26 of the Immigration and Refugee Protection Regulations (IRPR). The authority to cancel, amend or reinstate any POE designation is implied. Since April 2020, under section 26.1 of the IRPR, the Minister also has the authority to specify whether certain listed immigration services will be provided at designated POEs (for example, collection of biometric data or reception of an application for a work permit). These 2 authorities in relation to POEs have not been delegated, and therefore the Minister's approval is required for every modification to the immigration services offered at a POE or its date and hours of operation.

Next steps

The Agency has amended some CBSA D&D Documents in 2021 and 2022 to reflect its regular operational environment, but also to react to the COVID-19 pandemic, especially regarding the Customs Offices and Ports of Entry designation. Further updates are expected in the upcoming months to adjust the D&D Documents to reflect modifications to the organizational charts streaming from the Functional Management Model under CBSA Renewal. It is your diligent response to these proposed modifications to the D&D Documents that provide the CBSA the flexibility it requires to adapt the border authorities to the current situation. Future briefings will be arranged as required.