Issues notes: Standing Committee on Access to Information, Privacy and Ethics—Study on the Use of Public Funds in Relation to the Roxham Road Crossing (October 17, 2022)

Contracting related to processing and accommodation infrastructure at Lacolle

Background

The Regional Processing Centre (RPC) was created in 2017 in response to an influx of asylum seekers coming through Roxham Road (not an official point of entry) located at Lacolle, Quebec. The RPC was created through multiple lease agreements, for both temporary and fixed infrastructure, to help meet the operational and accommodation requirements to process up to 150 asylum claimants per day. All leases were contracted under the Public Services and Procurement Canada (PSPC) delegation.

Since 2017, the Canada Border Services Agency (CBSA) has spent an average of $3 million per year for the processing and accommodation infrastructure for asylum seekers at the RPC in Saint-Bernard-de-Lacolle. In 2021, the CBSA approved a strategy to realize savings estimated at $1.1 million annually through changes to leases, goods and other services. A new 5 year lease was contracted by PSPC with ILG Ltée. (Pierre Guay) in August 2021 to consolidate previous leases and retrofit two existing buildings (337 and 339 ch. Guay, Lacolle). The retrofit project is set to be completed in December 2022 at a total budgeted cost of $4.5 million.

Key interventions regarding the Public Service

The CBSA continues to collaborate with PSPC through Real Property, Specific Service Agreement (SSA) to complete the RPC project by December 2022.

Key interventions regarding the Agency

The new lease will become effective at the completion of the RPC retrofitting project. Anticipated annual savings are expected to begin in the 4th quarter of 2022 to 2023.

Roxham Road crossing

Question period notes on asylum claimants, irregular migration and Safe Third Country Agreement

Proposed response

Asylum claims are governed in part by international treaties to which Canada is a signatory.

Those with a legitimate need for protection have a right to make an asylum claim.

The Canada Border Services Agency (CBSA) works with Immigration, Refugees and Citizenship Canada and the provinces to make sure refugee claimants are safe and have access to food, water and shelter while they wait for processing and other steps in the refugee claims process.

The Lacolle Regional Processing Centre was developed in 2017 in response to the unprecedented volumes of refugee claimants coming to Canada between ports of entry. Under emergency contracts, Lacolle was used as a temporary processing facility for refugee claimants.

The CBSA has an ongoing lease of the land and buildings used to manage the influx of refugee claimants at the border in Lacolle, Quebec.

Additionally, the CBSA is currently retrofitting a warehouse on site, which consists of the amalgamation of processing and waiting space within fixed infrastructure. The CBSA is considering other possible uses for the facility should refugee volumes diminish.

The CBSA spends $3 million per year for the processing and accommodation infrastructure for asylum seekers located in Saint-Bernard-de-la-Colle, Quebec.

Contingency planning if claimant volumes go up

The CBSA has contingency plans in place to deal with the possibility that we see higher numbers of refugee claimants crossing at ports of entry.

Plans include mobilizing resources between districts and regions. The CBSA is also developing a new processing model, leveraging recent innovations and considering arrangements to accommodate higher numbers of people awaiting processing, if needed.

Statistics from November 21, 2021 to October 10, 2022

51,539 individuals came to Canada to claim asylum. Of those, 31,758 arrived between official ports of entry and 19,781 arrived at an official port of entry.

Of the 19,7841 individuals who arrived at an official port of entry to make an asylum claim, 4,311 met an exception under the STCA.

Background

Border security and integrity is a shared mandate between the CBSA and the Royal Canadian Mounted Police (RCMP). The CBSA is responsible for enforcement at official Canadian ports of entry (POEs), while the RCMP is responsible for enforcement between POEs. The RCMP then escorts people crossing between the ports of entry to the nearest CBSA port of entry. The closest port of entry to Roxham Road is Saint-Bernard-de-Lacolle.

The Safe Third Country Agreement (STCA) was signed in 2002 by Canada and the U.S. and has been in effect since December 2004. Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception. People who are not eligible to make an asylum claim at the land port of entry under the STCA are immediately returned to the U.S.

Since 2017, the Government of Canada has been in continuous contact with the U.S. Department of Homeland Security and U.S. State Department on issues related to our shared border, including our desire to modernize the STCA.

The STCA's objectives

The primary objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, and share the responsibility for protecting people who fit the official definition of "refugees".

The mandates behind the STCA

The CBSA and IRCC share a mandate of preserving the integrity of the immigration system. Together, the CBSA and IRCC administer the Immigration and Refugee Protection Act (IRPA), which governs the admissibility of people into Canada, and the identification, arrest, detention and removal of people who are inadmissible.

The STCA under the Quarantine Act

Without going against Canada's international obligations with respect to non-refoulement, (in other words, forcing asylum seekers to return to a country in which they would be at risk of persecution), the Order in Council (OIC) issued under the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) also supported the continued application of the Safe Third Country Agreement at designated land ports of entry in accordance with the IRPA. This means that those who met one of the narrow exceptions or exemptions in the OIC were permitted to enter and apply for refugee protection.

While the OIC contained a prohibition against entry for the purpose of making a refugee claim at any other location (including airports, marine ports, and between official ports of entry), the prohibition was not included in the current OIC which came into effect on November 21, 2021. Irregular migration has since resumed.

The OICs were allowed to expire on September 30, 2022, at 23:59 EST.

Who the STCA applies to

The STCA generally applies to asylum claimants who are seeking entry to Canada from the U.S. at a land port of entry. The Agreement does not apply to U.S. citizens and stateless persons residing in the U.S. or to those who arrive from the U.S. by air (with the exception of some people being deported from the U.S. through Canada), or by sea.

The Agreement does not apply to anyone who meets an Agreement exception, such as:

• people who have a family member in Canada
• unaccompanied minors
• people 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.
• people who meet the public interest exception

It also does not apply to claims made by people who entered Canada between ports of entry.

Recent litigation: Federal Court of Appeal decision

The Federal Court rendered a decision on litigation challenging the STCA in July 2020 for the Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. case. The Court found that the STCA and section 159.3 of the Immigration and Refugee Protection Regulations violated section 7 of the Canadian Charter of Rights and Freedoms. The Government's appeal and the cross appeal were heard by the Federal Court of Appeal (FCA) in February 2021 and the decision was delivered on April 15, 2021.

The FCA upheld the validity of the Agreement and on June 14, 2021, the Canadian Council for Refugees et al submitted their application for leave to appeal against the FCA decision to the Supreme Court of Canada (SCC). On December 16, 2021, the SCC granted the application for leave to appeal.

The Appeal to the SCC (Case # 39749) was held October 6, 2022; judgement reserved. A decision could be rendered any time after the hearing, but is most likely to be rendered between six and 12 months following the hearing. The Department of Justice is currently conducting an analysis.

Asylum seekers: Quick fact sheet

The data in this fact sheet was produced by SPMU and the IRCC public website: Refugee claims by year

Roxham Road: Timeline 2017 to 2022

2017: 18,836 irregular claimants

• January 2017 - Changes in the U.S. Governement leadership and migration policies
• July 2017 - A significant increase in irregular migration was experienced at Roxham Road
• Assistance from the Canadian Armed Forces and the Canadian Red Cross was required to manage volumes
• Tents were erected to accomodate claimants who were waiting to be processed

2018: 18,518 irregular claimants

• A Regional Processing Center was established near the Lacolle port of entry to process irregular claimants
• A daily average of 51 claimants were processed by the CBSA

2019: 16,136 irregular claimants

A daily average of 44 claimants were processed by the CBSA.

2020: 3,189 irregular claimants

• Border measures were put in place to reduce the spread of the COVID-19
• The Government of Canada implemented an Order in Council (OIC) - Prohibition of Entry into Canada from the United States to minimize the risk of exposure to COVID-19 in Canada. This resulted in claimants being directed back to the United States
• A daily average of 33 claimants were processed by the CBSA between January and March
• A total of 178 claimants arrived irregularly between April and December

2021: 4,095 irregular claimants

• The warehouse retrofit construction started for the purpose of centralizing all CBSA operation into one fixed infrastructure
• The OIC was lifted on November 21 and irregular migration resumed, surpassing pre-pandemic numbers
• A total of 578 claimants arrived irregularly between January 1 and November 20 2021
• After November 21, 2021 a daily average of 88 claimants were processed by the CBSA

2022: 27,000+ irregular claimants

• A daily average of 100 claimants are processed by the CBSA, surpassing pre-pandemic volumes
• The CBSA continues to work with stakeholders, to monitor volumes and to implement strategies as required to ensure operational readiness
• Warehouse retrofit construction continues, completion is slated for end of year

Roles and responsibilities at Roxham Road

Multiple federal stakeholders are involved in the processing of between the POE (port of entry) claimants in the Quebec Region. The Primary stakeholders on-site are:

Other federal stakeholders involved in procuring the processing and accommodation infrastructure at Roxham Road include:

5. Public Services and Procurement Canada (PSPC) – PSPC has the delegation to contract all CBSA lease agreements to help meet the operational and accommodation requirements to process claimants. The CBSA collaborates with PSPC through Real Property, Specific Service Agreement to contract lease agreements.

Access to Information and Privacy (ATIP)

ATIP at the CBSA

The Canada Border Services Agency (CBSA) Information Sharing, Access to Information, and Chief Privacy Office has delegated positions to respond to Access to Information Act and Privacy Act requests on behalf on the Minister of Public Safety.

Once a request is received by the CBSA, the ATIP office sends a notification for document retrieval within the CBSA to program areas that hold the responsive records. These responsive records are collected and processed in accordance with the legislation.

The CBSA received 11,457 Access to Information Act requests in fiscal year 2021 to 2022, which was an 51% increase over the previous year. Moreover, the CBSA responded to 10,015 Access to Information Act requests, representing 74.8% of the total number of requests received and outstanding from the previous reporting period. The CBSA processed over 773,748 pages under the Access to Information Act and was successful in responding to 90.7% within the legislated timelines.

When records originate from, or concern another government institution or third party, consultations are undertaken. Recommendations received from these consultations are reviewed and a final determination on disclosure is made by a CBSA person in a delegated position.

In 2021 to 2022, the CBSA completed 362 consultation requests from other government institutions and organizations. This represents an increase of 59.5% in comparison to the previous fiscal year. Furthermore, to respond to these requests, 11,644,999 pages were reviewed, a significant increase from the previous fiscal year.

Despite the high volumes of requests received, the Agency was able to maintain remarkable results by responding to 90.7% of access requests within their statutory timelines.

Our achievements reflect the CBSA’s commitment to ensuring that every reasonable effort is made to meet its obligations under the Access to Information Act.

The CBSA strives to provide Canadians with the information to which they have a right in a timely and helpful manner by balancing the right of access with the need to protect the integrity of the border services that support national security and public safety priorities.

Background

The purpose of the Access to Information Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Information Sharing, Access to Information and Chief Privacy Office

The Information Sharing, Access to Information and Chief Privacy (ISATICP) Office is comprised of six units: an Administration section, three Case Management units, and two Policy units. The Administration section’s function is to receive all incoming requests and consultations, to ensure quality control of all outgoing correspondence, and to support the Case Management units in their day-to-day business. The Case Management units assign branches and regions with retrieval requests, process requests for information under the Access to Information Act, and provide daily operational guidance and support to CBSA employees.

The Access to Information and Privacy (ATIP) Policy and Governance Unit develops policies, tools, and procedures to support ATIP requirements within the CBSA and provides training to employees. The Information Sharing and Collaborative Arrangement Policy Unit maintains the policy framework for the CBSA’s information-sharing and domestic written collaborative arrangements. On average, 71 full-time equivalents, and 0.5 part-time, casual and student employees were employed in the CBSA ISATICP Office during fiscal year 2021 to 2022. The ATIP coordinator for the CBSA is the Executive Director of the ISATICP Office. Consistent with best practices identified by the Treasury Board of Canada Secretariat, the CBSA's ATIP coordinator is positioned within three levels of the President and has full delegated authority.

Key to maintaining compliance with the statutory time requirements of the Access to Information Act is the CBSA ISATICP Office’s ability to obtain records from branches and regions in a timely and reliable manner. Supported by a network of 16 ATIP liaison officers across the CBSA, the ISATICP Office is well-positioned to receive, coordinate, and process requests for information under the Access to Information Act.

In 2021 to 2022, the CBSA received record-high volumes of access to information and privacy requests. During this period, 11,457 requests were received under the Access to Information Act, an increase of 51% from the previous year. The Agency reviewed 773,748 pages associated with these requests.

In total, 3,039 time extensions were applied for in fiscal year 2021 to 2022. This represents an increase of 85.8% in extensions in comparison to the previous fiscal year. Extensions were applied 99.2% of the time because of workload and meeting the original 30-day time limit would have resulted in unreasonable interference with the CBSA operations. The remaining 0.8% of the time was for consulting with third parties or other government institutions, or to provide notice to third parties.

In 2021 to 2022, the CBSA completed 362 consultation requests from other government institutions and organizations. This represents an increase of 59.5% in comparison to the previous fiscal year. Furthermore, to respond to these requests, 11,644,999 pages were reviewed, a significant increase from the previous fiscal year.

For 2021 to 2022, 750 Access to Information Act complaints were filed against the CBSA, which represents a significant increase compared to fiscal year 2020 to 2021. For context, the number of complaints filed relate to 7.5% of the 10,015 access to information requests completed during this period. The complaints received during the fiscal year were related to the following issues: time delay (547); application of exemptions or exclusions (45); time extension (135); missing / incomplete records (22); and miscellaneous (1).

Despite the high volumes of requests received, the Agency was able to maintain remarkable results by responding to 90.7% of access requests within their statutory timelines.

Our achievements reflect the CBSA’s commitment to ensuring that every reasonable effort is made to meet its obligations under the Access to Information Act. The CBSA strives to provide Canadians with the information to which they have a right in a timely and helpful manner by balancing the right of access with the need to protect the integrity of the border services that support national security and public safety priorities.

Authorities under the Access to Information Act and the Privacy Act

This table lists key positions at the Canada Border Services Agency and their level of authority of final determination on disclosure under the Access to Information Act and the Privacy Act.

Access to Information Act

Access to Information Act