Avoiding Complicity in Mistreatment by Foreign Entities: Annual report 2017 to 2018

Introduction

This report by the Canada Border Services Agency (CBSA, or ‘the Agency’) is presented to the Minister of Public Safety and Emergency Preparedness (the Minister) to meet the Agency’s requirement to prepare an annual report on the application of the Ministerial Direction to the Canada Border Services Agency: Avoiding Complicity in Mistreatment by Foreign Entities (hereafter referred to as the MD). The report is made in accordance with clause 24 of the MD, which directs the CBSA to produce a classified annual report to the Minister regarding the application of the MD, and must include^{Footnote 1}:

• details on substantial risk cases where the MD was engaged, including the number of cases;
• the restriction of any arrangements due to concerns related to mistreatment; and
• any changes to internal policies and procedures related to the MD.

This report also describes the activities that support the CBSA’s compliance with the MD from September 2017 to September 2018.

The Mandate and Role of the Canada Border Services Agency

The CBSA was established by the Canada Border Services Act and is an integral part of the Public Safety Portfolio. The CBSA administers more than 90 acts, regulations, and international agreements, many on behalf of other federal departments and agencies, or the provinces and territories.

The Agency's legislative, regulatory and partnership responsibilities include the following:

• administering legislation that governs the admissibility of people and goods, plants and animals into and out of Canada;
• detaining those people who may pose a threat to Canada;
• removing people who are inadmissible to Canada, including those involved in terrorism, organized crime, war crimes or crimes against humanity;
• interdicting illegal goods entering or leaving the country;
• protecting food safety, plant and animal health, and Canada's resource base;
• promoting Canadian business and economic benefits by administering trade legislation and trade agreements to meet Canada's international obligations;
• enforcing trade remedies that help protect Canadian industry from the injurious effects of dumped and subsidized imported goods;
• administering a fair and impartial redress mechanism;
• promoting Canadian interests in various international forums and with international organizations; and
• collecting applicable duties and taxes on imported goods.

The CBSA and Information-Sharing

The CBSA relies on information to execute its border management responsibilities safely and efficiently. The CBSA’s collection, retention, and sharing of information is strictly within the parameters of its border management mandate, as set out by CBSA program legislation. The CBSA’s information-sharing activities can be characterized as follows:

• The CBSA is a net consumer of information. The vast majority of information in CBSA holdings is derived from private sector stakeholders (such as air carriers or commercial transport companies). This information is provided to the CBSA under regulatory requirements and allows the Agency to make timely, risk-based decisions on the admissibility of people and goods attempting to enter Canada. Individuals and private sector stakeholders also provide information to the CBSA when engaging in one of its ‘trusted’ programs (e.g. Trusted Traveller or Trusted Trader).
• To identify and manage higher-risk cases effectively, the CBSA augments this regulatory information with information received from public safety partners such as the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS). As outlined in legislative authorities, and mirrored in the CBSA’s policies and operational guidance, the CBSA only exchanges information with domestic and international partners in instances when there is a clear nexus to the management of Canada’s borders. These exchanges are well-codified in various written arrangements and agreements.
• Internationally, the CBSA’s information-sharing activity is primarily with Border Five allies (the United States, the United Kingdom, Australia, and New Zealand)^{Footnote 2}.

While the CBSA has numerous partnerships and manages a substantial amount of information, the nature of its border management mandate and its network of partnerships is such that the Agency assesses its information-sharing holdings as predominantly low-risk in terms of possible association with mistreatment.

The CBSA recognizes that one of its key responsibilities is to be a responsible steward of the information in its control. In line with the MD, the CBSA has implemented measures to augment its management of information-sharing activities.

Interdepartmental Coordination

In developing its policy in support of the MD, the CBSA ensured that it is applying a compatible and complementary approach to that of other federal partners in terms of how it assesses risk of its information-sharing activities with foreign entities.

With that goal in mind, the CBSA has been an active participant in the Public Safety-led Information-Sharing Coordination Group (ISCG). This group is working to ensure that the implementation of the MD is consistent across all implicated federal departments and agencies. Through this group, the CBSA has leveraged the RCMP, and Global Affairs Canada country risk assessments to ensure that the CBSA is approaching risk of mistreatment in a manner consistent with similarly-mandated partners, and within the Government of Canada’s larger international framework.

• Establishing consistent risk assessment at a country level;
• Establishing consistent risk assessment at an entity level;
• Establishing or updating information-sharing arrangements between all MD partners to set out common approaches to implementation
• Managing case-specific actions; and
• Ensuring awareness and, where required, consistency in any relationship restrictions.

New Policies, Guidance, and Procedures related to the MD

The CBSA’s participation in the ISCG has provided the foundation for the CBSA’s national policy entitled Policy and Operational Guidelines on Implementing the Ministerial Direction to the Canada Border Services Agency: Avoiding Complicity in Mistreatment by Foreign Entities (the policy).

The CBSA’s policy has been developed to support the consistent application of the MD across all of the CBSA’s domestic and international operations. The policy clearly outlines roles and accountabilities and requires CBSA officials to consult with the Agency’s Chief Privacy Officer for guidance and advice.  This in turn allows subject matter experts in the Chief Privacy Officer’s division to assess each situation on a case-by-case basis using the latest relevant information to produce a comprehensive and well-substantiated risk-assessment decision in each of the rare cases in which the CBSA could engage the MD. This process determines which cases meet the threshold for escalation to the President for decision.

Specifically, when approached with a situation wherein the MD could be engaged, the Chief Privacy Officer’s (CPO) division is expected to immediately obtain the latest information from Global Affairs, the RCMP, and CSIS, as well as any available open-source information. The risk assessments are to be reviewed on a case-by-case basis to ensure proper risk determination, and the required senior level engagement. In so doing, the CBSA focuses its risk assessment on a case-by-case basis.

In addition to launching the policy on the MD, the CBSA exercises additional governance by having a dedicated CPO help desk for front-line CBSA employees and CBSA liaison officers working abroad who have questions pertaining to information-sharing, including sharing that could engage the MD.

The CBSA expects its approach to implementing the MD to evolve through continued engagement with existing and future review bodies, as well as through continued consultations with portfolio and other federal government partners.

Awareness and Training

The MD was announced and distributed to all CBSA officials shortly after it was issued. A policy was recently adopted nationally to further support implementation of the MD and announced prominently on the CBSA’s intranet home page. The policy was approved by the CBSA’s executive committee.

In addition, CBSA employees regularly conducting information-sharing activities, or those whose responsibilities may bring them into information-sharing scenarios, receive training on information-sharing tailored to their particular roles and responsibilities. This approach ensures that training is commensurate with risk.

Work has also begun to add additional training modules, specific to the MD, to existing online training on information-sharing and explorations are under way to have Global Affairs Canada host online material for CBSA liaison officers to facilitate their access to online resources while abroad.

Activity Report: September 2017 to September 2018

The following section outlines by category of activity any cases that required the CBSA to engage the MD for the period from September 2017 to September 2018:

1. Disclosures of Information made pursuant to the MD
   The CBSA had no cases.
2. Requests for Information made pursuant to the MD
   The CBSA had no cases.
3. Use of Information pursuant to the MD
   The CBSA had no cases.
4. Restriction of any arrangements due to concerns related to mistreatment
   The CBSA had no cases.

Date modified:

2020-10-26