Minors in Immigration Detention

On November 6, 2017 Ralph Goodale, Canada’s Public Safety Minister, issued a Ministerial Direction to the Canada Border Services Agency (“CBSA”) titled Minors in Canada’s Immigration Detention System (the “Ministerial Direction”), as part of its National Immigration Detention Framework (the “NIDF”).  The Ministerial Direction notes that:

  • Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (“ATDs”) are considered and determined to be unsuitable or unavailable;
  • The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians;
  • The best interests of a child shall be a primary consideration to be assessed against other primary and mandatory factors in legislation;
  • That Canada has the objective to stop the detention or housing minors and family separation, except in extremely limited circumstances;
  • That Canada will ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and
  • That Canada will never place minors in segregation or segregate them.

Prior to the NIDF and the Ministerial Direction the number of minors that the CBSA had been holding in detention had been steadily decreasing.

According to internal government statistics, from April 1, 2016 to December 31, 2016 the parents of accompanied minors were detained for the following reasons: 78.95% (90) for unlikely to appear, 10.52% (12) for examination, and 10.52% (12) for identity.

As well, the average length of time that a minor was detained also had fallen dramatically.

Given the current influx of refugees arriving in Canada from the United States, it will be interesting to see if CBSA is able to maintain the trend, even with the introduction of the NDIF.  If it does, then I think it would be reasonable to presume that the NDIF was a success.

The CBSA Search of Electronic Devices

Although it is uncommon for the Canada Border Services Agency to search the electronic devices of people entering Canada, it does happen. In an episode of the Borderlines Podcast, which I co-host with Peter Edelmann and Deanna Okun-Nachoff, we discussed the constitutional legalities of the CBSA searching electronic devices with Marilyn Sanford, a criminal defence attorney.

This post provides a summary of the CBSA’s actual policies on the searching of electronic devices at Canadian ports of entry.  The statutory ability of officers to do so derives from s. 139(1) of Canada’s Immigration and Refugee Protection Act, which provides that an officer may search any person seeking to come into Canada and may search their luggage and personal effects, including the means of transportation that conveyed the person to Canada, if the officer believes that doing so would be relevant to their admissibility.  This can include discovering possible criminal offences, unauthorized work, or a sole intention to reside permanently in Canada without having first obtained permanent resident status.

According to PRG-2015-31, officers are expected to understand and apply the following guidelines:

    • Where the the admissibility of a traveller is in question, officers are justified in performing examinations of digital devices and media to discover documentary evidence pertaining to admissiblity, or a false identity.
    • CBSA officers shall conduct examinations of digital devices and media with as much respect for traveller’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.
    • Prior to examination of digital devices, officers will where possible disable wireless and internet connectivity (including by setting the phone to airplane mode) to limit the ability of the device to connect to remote hosts.
    • CBSA officers shall only examine what is stored in the device.  Officers are not to read emails on digital devices and media unless the information is already downloaded and has been opened (meaning that it has been marked as read).
    • CBSA officers shall notate in their notebooks the indicators that led to the progressive search of the digital device, what areas of the device was searched, and why.
    • With the exception of devices that are biometrically protected, CBSA officers shall not allow a traveller to input a password into a digital device themselves. Rather, officers are to request the password.
    • Passwords are not to be sought to gain access to any type of account (including social, professional, corporate or user accounts). However, should travellers voluntarily provide their usernames and passwords, then CBSA officers will be authorized to view external accounts.
    • Where a person refuses to provide a password to a digital device, then CBSA may seize the digital device.  However, until the courts have settled the issue of whether this is legal, CBSA shall not arrest a person solely because they have not provided a password to their device.

A full copy of PRG-2015-31 can be found here.

Enforcement Flag Removal Policy Change

Many people entering Canada find themselves at customs being constantly referred to secondary examination.  There, they are often told by the Canada Border Services Agency (“CBSA“) that their referral to secondary examination was the mandatory result of an enforcement flag being on their file.

Referral to secondary examination is time consuming.  Unnecessary referrals are a burden on both travellers and CBSA.  Because of this, CBSA was traditionally quite facilitative when it came to individuals requesting that an enforcement flag on their file be removed.  As a supervisor from the CBSA explained to me in an e-mail, enforcement flag removal works as follows:

The flag removal process doesn’t delete information, it merely closes the connection between the immigration database and the integrated system on the primary inspection line on that specific client.  The process is not visible to the naked eye – I use this analogy:

You get a lamp for a wedding present from “her” mom. You hate it. It’s a motion sensor lamp and it is hardwired into the wall. You can’t get rid of it, you can’t unplug it, you can’t take the light bulb out but you want the thing to stop lighting up every time you walk by. So, you unscrew the light bulb just enough that it doesn’t make contact. It’s still there, it’s still safe but it won’t ever light up again.

That’s what the flag removal does… we leave everything in place, but alter it slightly so that when the client shows up at the primary line, his name doesn’t light up!

As evidenced from the above e-mail, individuals could traditionally  e-mail the CBSA directly to ask that the enforcement flag be removed.  The CBSA almost always responded favourably within 48 hours.   It was excellent customer service.

While the process is a bit more cumbersome than before, it is still possible to request that an enforcement flag be removed before an individual attempts to enter Canada.

Border service officers are extremely busy.  It is very unlikely that many officers who want to help an individual remove an enforcement flag on their file will be able to take the time to make a written request to their supervisor.  The disadvantage for an officer in making a flag removal request (increased delays and a resulting increased workload for the officer’s co-workers) will almost always outweigh the benefit (that at some point in the future a different officer won’t have to deal with the unnecessary referral).

As an aside, considering that an individual border officer has the ability to deny someone entry to Canada, it is surprising that they don’t have the ability to quickly remove an enforcement flag.

The CBSA Databases – ICES, FOSS, CPIC, and NCIC

In 2013 the Federal Court released its decision in Martin-Ivie v. Canada (Attorney General), 2013 FC 772 (“Martin-Ivie“), a case which involved a Canada Border Services Agency (“CBSA“) officer who sued CBSA over what she regarded as safety issues.  The case revealed much about the operations of the CBSA at land ports of entry.  I have combined information from Martin-Ivie with what is found in the People Processing Manual and the Customs Enforcement Manual to help provide further understanding of what CBSA officers are looking at on their computers at primary inspection (“Primary“).

The Databases 

There are four databases which CBSA officers have access to at Ports of Entry.

Integrated Customs Enforcement System (“ICES”)

ICES is a national Canadian database of lookout information and enforcement activities that, amongst other things, contains information about Canadians who have come into contact with CBSA, or individuals who might seek to enter the country and might pose a risk.  In addition to traveller records, ICES contains information on customs seizures for a period of five years.   As well, ICES contains a record of every vehicle (and theoretically individual person) entry into Canada.  (Practitioners generally request copies of ICES when representing individuals in permanent resident card renewal applications.)

Field Operations Support System (“FOSS”)

FOSS is Citizenship and Immigration Canada (“CIC“) and CBSA’s shared database.  It contains millions of records about all CBSA and CIC contacts with non-Canadian citizens.  It specifically contains information on any immigration records and violations.  It is gradually being rolled into CIC’s Global Case Management System (“GCMS“).

The FOSS enforcement database includes information about previous and pending deportations, overextended stays by visitors, individuals who fail to present themselves for Immigration hearing or voluntary departures, warrants used by immigration, Interpol information on suspected and known terrorists, intelligence lookouts and individuals refused at ports of entry.  It also contains the “work in progress” or “watch for” information.

Canadian Police Information Center (“CPIC”)

CPIC is the database used by Canadian law enforcement agencies.  CPIC contains information regarding existing and expired “wants and warrants”, details of individuals who are or were wanted for some reason by a law enforcement agency, and details for whom a warrant of arrest was or is outstanding.  It also contains criminal records.

National Crime Information Center (“NCIC”)

NCIC is a database used by American law enforcement agencies. Like CPIC, NCIC contains information regarding existing and expired “wants and warrants”, details of individuals who are or were wanted for some reason by a law enforcement agency, and details or for whom a warrant of arrest was or is outstanding.  As people who have represented individuals who have been denied entry to Canadian ports of entry often discover, NCIC is often out of date.


Integrated Primary Inspection Line (“IPIL”)

Border Service Officers (“BSO“) at Primary are the first point of contact for those seeking entry to Canada.  BSOs at Primary have access to IPIL, a direct-access interface which allows officers to initiate “real time” queries against enforcement actions and lookouts in ICES and FOSS.  It also indirectly allows limited access to CPIC and NCIC.  IPIL can perform queries on travellers once their documents are scanned, or by manually entering a traveller’s last name, first name, and date of birth.

BSOs at primary are required to quickly assess whether travellers should be allowed to proceed into Canada or whether they should instead be referred to secondary for further questioning.  They rely on information contained in IPIL, as well as their observations of travellers’ behaviour.  (According to the Court in Martin-Ivie 90% of referrals – which constitute less than 5% of people who pass through Primary – are the result of suspicious behaviour.  The evidence also established that the average time taken to process a traveller at Primary is between 30 and 90 seconds.)

Unlike officers at secondary examination, officers at Primary do not have unlimited access to ICES, FOSS, CPIC, and NCIC.  The reason, according to CBSA in Martin-Ivie, is that the amount of time required to run comprehensive searches in FOSS, ICES, CPIC and NCIC is substantial.  It takes approximately two and a half to ten minutes for each search in FOSS, between approximately three to five minutes per search in CPIC and approximately three to eight minutes for each search in NCIC.  Each search must be conducted separately.  This is a large reason why secondary examination can often take so long.


Why the CBSA Enforces What it Does

The Canada Border Services Agency (“CBSA“) in 2011 produced the Integrated Intelligence / Enforcement Priorities Report (the “Report“).  The Report is interesting because it presents succinct descriptions of what CBSA considers to be areas of importance in the enforcement context related to immigration, and why it considers these issues important.

Practitioners may find these summaries useful in explaining to clients why we ask some of the questions that we do.

I have reproduced sections of the report below:

Residence Fraud

What Is It
Canada’s immigration and citizenship legislation both contain residency obligations which must be met in order to be granted citizenship or maintain PR status in Canada. Section 28(1) of the IRPA requires that a PR be physically present in Canada for 730 days in a 5 year period. Failure to meet the residency obligation can result in the loss of PR status and removal from Canada. Furthermore, in order to be eligible for citizenship, section 5 the Citizenship Act requires that a PR accumulate at least 3 years of residence in Canada within the 4 years immediately preceding their application.In many instances, individuals who do not meet the residency requirements under the IRPA use fraudulent documentation or other means to falsely establish their presence in Canada in order to maintain their PR status. This problem is compounded if the fraud is not detected and the person becomes eligible for citizenship based on erroneous information.

Residence Fraud is believed to involve a mix of individuals acting of their own accord and organized attempts to circumvent the provisions of the IRPA and Citizenship Act in order to gain status although the magnitude of the problem remains unknown. The incentive to commit fraud can be great, in part because maintaining PR status permits an individual to become eligible for citizenship and for various other Federal/ Provincial/Territorial (FPT) benefits.

Why Is it a Priority?
This type of fraud links to FPT benefits, the PR Card program and the Citizenship program which requires that applicants be a PR and which also has a residence requirement for PR. Consequences for Residence Fraud may include criminal prosecution, revocation of citizenship and removal from Canada. PR who commit fraud may lose their PR status and may be subject to removal from Canada. As indicated in media reports, there are a number of other ongoing police investigations regarding potential Residence Fraud across Canada. Continuing into 2012, the Government of Canada (GC) is investigating 6,500 people from more than 100 countries for fraudulently attempting to gain citizenship or maintain permanent resident status. CIC has begun the process to revoke the citizenship of nearly 2,000 citizens who obtained it fraudulently and has flagged the files of nearly 4,400 permanent residents known to be implicated in residence fraud should they attempt to enter Canada or obtain citizenship.

Consultant Fraud

What Is It

In 2004, the Immigration and Refugee Protection Regulations (the Regulations) were amended to ensure that only persons who were authorized representatives could, for a fee, represent, advise or consult with

a person who was the subject of a proceeding or application under the IRPA.

While they are not required to do so, potential refugees and immigrants to Canada may seek advice from third parties about the various immigration processes to which they are subject. Such assistance is often costly and varies considerably in quality. Some third parties are not qualified to provide the advice they dispense, and some have exploited immigrants by providing false information, and engaging in fraud.

Certain consultants who held themselves out as experts had no training or experience in handling complex files. Others made false promises, and charged exorbitant fees for their services. In a number of

reported cases, consultants charged fees for an unfulfilled promise to file immigration applications, while providing fictitious file reference numbers and advising clients that the GC had refused the application. In the most egregious cases, consultants have reportedly counselled misrepresentation.

The Regulatory Impact Analysis Statement for the recent Regulations Amending the Immigration and Refugee Protection and the Legislative Summary of Bill C-35 describe persistent and credible reports

that some unscrupulous immigration consultants, both in Canada and abroad, were facilitating people smuggling and fabricating documents permitting foreign nationals to enter Canada illegally.

Bill C-35 creates a new offence by extending the prohibition against representing or advising people- or offering to do so -for consideration. This offence applies not only to all stages of a proceeding or application under the IRPA, but also to all stages occurring even before an application is made or a proceeding instituted.

Why Is it a Priority?

Efforts by the CBSA to prevent Consultant Fraud are part of a broader strategy to protect people wanting to immigrate to or stay in Canada from Immigration Fraud.

Consultant Fraud undermines the immigration system’s objective of ensuring that the public is well served by ethical and professional immigration consultants. The Minister of Citizenship, Immigration

and Multiculturalism has publicly described Consultant Fraud as a problem that poses a significant threat to the immigration system and has created a lack of public confidence in the regulation of consultants. Despite efforts by CIC and the CBSA to address the issue, there have been, through the years, several complaints from the public, through the House of Commons Standing Committee on

Citizenship and Immigration, and from within the profession about unacceptable practices of immigration consultants.

Some consultants in Canada and abroad act on behalf of clients who would otherwise not qualify under Canada’s immigration or refugee programs: their role is to provide fake documentation, stories etc. to gain entry for their client into Canada. The consequences for prospective immigrants can be severe, ranging from rejected asylum applications to penalties for misrepresentation, such as fines, imprisonment or being barred from entry to Canada for a period of at least two years.

The GC has made it clear that it is important to ensure that regulated consultants who engage in fraudulent operations and unregulated consultants, or ghost consultants, be prosecuted to the full extent of the law.

Marriages of Convenience

What is it?

Marriages of Convenience fraud can take many forms such as: Canadians and PR that are victimized by fraudsters

Complicit fraud, where both parties are aware of the fraud,· and Fraud involving three or more people (Couple +facilitator etc)

Many cases of MoC fraud consist of cases where a Canadian citizen or PR enters into what they believe is a bona fide marriage but their foreign national spouse is entering into the marriage solely to obtain status in Canada and Canadian citizens/PR who knowingly marry a foreign national solely to facilitate their obtaining status in Canada. Instances of Canadian citizens/PR marrying foreign nationals to help them obtain status vary from private arrangements between individuals to organized efforts to circumvent Canada’s immigration laws. While entering into a marriage primarily for immigration purposes is prohibited under the Immigration and Refugee Protection Regulations, it is often a challenge to identify and substantiate these kinds of relationships.

The GC recognizes that even genuine marriages can fail. However, if a person enters into a MoC and comes to Canada as an immigrant, enforcement action can be taken by the CBS A. This enforcement action includes investigating cases of fraud in cooperation with CIC, gathering intelligence on organized networks and the removal of persons ordered deported from Canada.

Why Is it a Priority?

Canada’s immigration system attempts to discourage MoC. Anyone who wants to sponsor their spouse or partner to immigrate to Canada makes a serious legal commitment. As part of this commitment, sponsors must support their spouse or partner for three years, even if the relationship fails.

If the couple breaks up and the sponsored person gets social assistance, the sponsor must pay back the amount of social assistance the former spouse received. This can place a financial and emotional strain on Canadians directly involved.

The objective of this integrated CIC/CBSA priority is to deter MoC fraud while maintaining the spirit of the family reunification program by continuing to facilitate the reunification of genuine spouses and partners and their dependents. A focus on MoC fraud would serve to further strengthen the integrity of Canada’s immigration system and send a message that Canada is taking a strong stance against marriage fraud.

There is increased public concern about abuse of Canada’s family immigration program through MoC fraud, and the issue has received considerable media attention. In order to gauge the seriousness of the marriage fraud challenge, in the fall of 2010, the Minister of Citizenship, Immigration and

Multiculturalism held town hall meetings focused on the issue. CIC also held on-line consultations on MoC fraud in the Fall of 2010 in order to gather public and stakeholder views.

While firm figures on the extent of MoC fraud are not available, we know that about 46 300 immigration applications for spouses and partners were processed in 2010 (39 800 from abroad and 6500 from Canada). There is evidence of organization behind some MoC fraud: Organized crime may be using this means to bring persons to Canada for trafficking, though more information is required to establish patterns and trends of cases with clear links to organized crime.

Welfare Fraud

What is it?

The ongoing abuse of the welfare and social benefit systems by certain refugee claimant populations is a problem being reported by all levels of government and members of the public. This includes refugee claimants who have abandoned or withdrawn their refugee claims or who have been determined not to be a refugee but remain in Canada and continue to receive FPT and municipal benefits through direct deposit or other means. In some instances, refugee claims are made under multiple identities and in different provinces in order to obtain multiple welfare payments.

Why Is it a Priority

The GC has a responsibility to work together with all levels of government to ensure that benefits are paid only to individuals who are entitled to them.

Welfare/Benefit fraud affects everyone and compromises the effectiveness of Canada’s strongest social programs. The likelihood of Welfare and Health Services related fraud is very high. Specific groups perpetrating the fraud are thought to be known although the full scope is unclear and requires further research.

Welfare/Benefit Fraud may represent a significant financial liability for the health and social systems administered by the Provinces and Territories (PT) and has the potential to erode public confidence in the integrity of those systems.

Employment Fraud

What Is it?

CIC is responsible for issuing the documents required for foreign workers to enter Canada, and helps make the final decisions as to whether foreign workers may enter and work in Canada. The selection criteria for foreign skilled workers assess individuals against criteria prescribed in the Immigration and Refugee Protection Regulations and awards points if the applicant meets the criteria. One of these criteria is an offer of permanent employment from a Canadian employer, which can facilitate the approval of a federal skilled worker application. With the introduction of a cap on the number of Federal Skilled Worker applications, a valid AEO is sometimes seen as a way to circumvent the cap. As a result, the AEO process is becoming more common and it is a target for fraud. The GC has reacted to the program abuse by strengthening screening and monitoring initiatives to make sure the offers of employment are bonafide.

The Immigration and Refugee Protection Regulations require that impact on the Canadian labour market be assessed as part of the visa issuance process. A Labour Market Opinion (LMO) assesses the impact

the hiring of a foreign worker would have on Canada’s labour market or, how the offer of employment would likely affect Canadian jobs. In some instances, fraudulent information is being provided to Human Resources Skills Development Canada (HRSDC) in order to influence their assessment of the labour market with respect to certain occupations. LMO includes misrepresentation of any information relevant to HRSDC/Service Canada’s assessment of the labour market impact factors in order to falsely influence the outcome of that assessment.

This fraud represents a threat to employment opportunities for Canadians. For example, some Canadian Visa Offices suffer from higher levels of fraud, which has an impact on the approval rates in different visa offices. In such cases, it takes longer to assess the genuineness of an application and the acceptance rate is also lower.

Why Is it a Priority

Although fraud undermines the Arranged Employment Offer (AEO) program, its policy goal of helping Canadian companies attract permanent skilled workers to Canada remains a public policy goal. The GC has expressed a desire to balance long-term and short-term solutions for employers to access the labour and skills needed to sustain Canada’s economy.

Combating both AEO and LMO fraud is also consistent with and supportive of work being done with a number ofPT and the GC to better protect the interests of foreign workers in Canada. For example, a new Integrity and Horizontal Coordination Division has been created at HRSDC national headquarters to facilitate matters relating to employer monitoring and compliance in cases where HRSDC has provided opinions.

Consultants and Canadian businesses may be facilitating AEO fraud, sometimes with prospective foreign workers paying Canadian companies thousands of dollars for fake job offers in order to facilitate their immigration applications.

With this significant increase in temporary foreign workers (TFW), the GC has become increasingly aware of instances where employers, or third-party agents working on their behalf, are failing to abide by commitments made to workers. Breaches that could occur include employers paying TFW less than promised, inadequate accommodations for some TFW, and third-party agents charging fees to workers, rather than employers, in contravention of PT legislation.

Four Case Comments

Hussain v. Canada (Citizenship and Immigration), 2013 FC 636

This was a FSWP case involving an officer who refused an applicant’s application because the officer determined that the applicant’s work experience was equivalent to “computer and information systems administrator” rather than “computer and information systems manager”.  In overturning the decision, the Court determined that the question is not which National Occupational Classification most resembles an applicant’s experience, but rather the applicant can demonstrate that he/she has one year of skilled work experience in a specific NOC.

The following three paragraphs are the relevant part of the decision:

With respect to its comments regarding the similarities between the Applicant’s experience and NOC 2281, the Respondent falls into the same trap as the Visa Officer – the question is not whether the Applicant’s duties bear more of a resemblance to another category than to the one sought, but whether the Applicant has satisfied the requirements of the category in question.

Although it is not for this Court to re-weigh the Visa Officer’s conclusions in this regard, the Applicant is correct to assert that the similarity with NOC 2281 is the sole explanation offered by the Visa Officer in support of his conclusion that the information submitted was insufficient to show that the Applicant satisfied the requirements of NOC 0213.

This Court is not an expert in the technological terms connected with the various NOC codes and cannot be required to assess the sufficiency of the Applicant’s application where the Visa Officer has provided no relevant comments or reasons in that regard.  The Applicant is correct in his assertion that the fact that duties may “bear more resemblance” to another category is irrelevant where an officer has failed to assess the relevance of the duties in relation to the particular category in question and has provided no analysis comparing the requirements of the two codes mentioned.

The Court also noted that while great deference is owed to visa officers, decisions still require justification, transparency and intelligibility so that courts can understand why the decision was made or to assess whether the conclusion is within the range of acceptable outcomes.

Ulybin v. Canada (Citizenship and Immigration), 2013 FC 629

This case involved a a determination of whether an equivalency analysis is reviewable on the standard of correctness or reasonableness.  The answer is reasonableness.  The nature of foreign law and the determination of the circumstances underlying the foreign conviction are questions of fact. Comparison of Canadian law to foreign law and the offence committed by an individual engages questions of mixed fact and law.  As well, it is possible that there may be more than one correct equivalent offence.  The Court noted:

How does the reasonableness standard apply to the analysis in issue? It is important that the Officer carrying out the equivalency analysis understand the elements of the comparable offence. A failure to address one of the elements would make the analysis unreasonable. However, the Officer’s application of the facts to the Criminal Code elements is a matter for which the Officer is owed deference by the Court. This exercise may lead to more than one reasonable outcome, particularly when taking into account the highly factual determination of equivalency.

Ndjizera v. Canada (Citizenship and Immigration), 2013 FC 601

This case extends the principle that it is unreasonable for Officers to distrust evidence simply because it comes from individuals connected to the applicants to refugee claims.


Begum v. Canada (Citizenship and Immigration), 2013 FC 550

This decision involved a stay of removal application in which the Court was clearly unimpressed with the position of the Canada Border Services Agency.  The decision is short, and worth a read in its entirety, but some of the key paragraphs are:

During the hearing before me, I said I was not particularly interested in the tripartite test for an interlocutory stay which is that there be a serious issue, irreparable harm if the stay were not granted and if the balance of convenience favoured the applicant. I was more interested in the administration of justice.

I wanted to know if the Enforcement Officer was aware of the court proceedings when he served the notice of removal. The record is silent. Did he assume there was no merit to the judicial review, notwithstanding Mr. Justice Manson has already decided there was a fairly arguable case? It is only in the notes to file, dated yesterday, that there is an acknowledgment that there are, in fact, ongoing court proceedings.

The applicants have been removal ready for almost nine years. Why incarcerate Ms. Begum for a year, and deprive her of her decent income as a teacher, and then decide to remove her and her son, a son who knows nothing of Bangladesh?After further questioning on this topic, the Board member said, “So just for fun would you be able to tell where I’m from?”  The applicant attempted to answer, and the Board member replied, “Not even close, so do you understand now?  If you can’t tell where I’m from, my background, how do I know yours?”

This motion deals with the administration of justice, and disrespect of this Court. It is not quite contempt, but not far off. The sub judice rule is almost on point. Not only were proceedings ongoing, but a hearing on the merits of the judicial review has taken place.

If the Canada Border Services Agency is interpreting section 48 of the Immigration and Refugee Protection Act which now requires removal “as soon as possible” rather than “as soon as practical”, so that the only way the removal can be stopped is by court order, then so be it! What happened to common sense?

Counsel for the Minister informed the Court that the applicants would be removed on the government’s dime. If they are, however, ultimately successful in their application for permanent residence from within Canada, notwithstanding that they would be outside Canada, the government is not undertaking to pay their way back, the same government which has prevented Ms. Begum from earning any money over the last year.

The Minister “graciously” conceded there was a serious issue, but argued that there was no irreparable harm and that the balance of convenience favoured him. I am not prepared to second guess Mr. Justice Manson, and whatever Madam Justice Strickland may decide. The irreparable harm is that the applicants would be removed from Canada without the wherewithal to return should they be ultimately successful. The balance of convenience favours them.

I wonder if we would see more decisions like this if judges were able to actually listen to some Canada Border Services Agency officers tell people “I have no discretion in whether to defer your removal.  My job is to say that you will be removed ASAP, and if you want to try and stay you’ll have to go to court.”

Understanding the Three Levels of Customs Infractions

When a person has goods (as distinguished from monetary instruments and conveyances  seized at customs, the Canada Border Services Agency (“CBSA“) has established three “levels” or “degrees” of breach for the purpose of determining the penalty.  These levels are described in Part 5 Chapter 2 of the Customs Enforcement Manual.

Level 1

Level 1 applies to violations of lesser culpability.  It will be applied where a person’s efforts to hide something from CBSA were initial and effectual.  It is generally applied to offences of omission rather than commission.

In the context of Non-Report and Inaccurate Information, Level 1 will be applied when:

  • goods are not reported to CBSA or goods are reported to CBSA but inaccurate information is given concerning acquisition, entitlements, or description;
  • the goods are not concealed; and
  • a full disclosure of the true facts concerning the goods is made at the time of discovery.

In the context of Undervaluation, Level 1 is applied when:

  • goods are reported for a value less than their actual transaction value but no falsified documents were presented; and
  • full disclosure is made prior to the discovery of documentary evidence.

Level 2

Level 2 applies to violations where the circumstances demonstrate that the individual actively attempted to breach Canadian customs law.  It is also applicable to people who repeatedly omit information.

In the context of Non-Report and Inaccurate Information, it will be applied when the circumstances are the same as for level 1, but in addition:

  • the goods are concealed or disguised; 
  • inaccurate information is given concerning the goods following their discovery; or
  • the person has been the subject of a previous seizure action.

In the context of Undervaluation, Level 2 is applied when:

  • no falsified documents were presented however documentary evidence is found, revealing the actual value of the goods is more than reported before full disclosure is made; or
  • the person has been the subject of a previous enforcement action.

Level 3

Level 3 applies to circumstances where the evidence exists of a more sophisticated scheme involving devices to facilitate the violation or where the individual has been the subject of a previous seizure.

In the context of Non-Report and Inaccurate Information, it will be applied when the circumstances are the same as for level 2, but in addition:

  • false documents or receipts are presented for the goods; 
  • the goods are concealed within false compartments; or
  • the person has been subject to previous seizure action.

In the context of Undervaluation, Level 3 is applied when:

  • falsified documents were presented in an attempt to support the undervaluation; or
  • the person has been the subject of a previous enforcement action.


The following two tables show the penalty amounts for each level.

Non-Report and Inaccurate Information


Level 1

Level 2

Level 3

Clothing, footwear, textiles, towels, bedding, curtains, carpets, jewelry, and watches

30% of value

50% of value

70% of value

All other goods, except alcohol and tobacco

25% of value

40% of value

55% of value




Level 1

Level 2

Level 3

Clothing, footwear, textiles, towels, bedding, curtains, carpets, jewelry, and watches

30% of undervalued amount

50% of undervalued amount

70% of undervalued amount

All other goods, except alcohol and tobacco

25% of undervalued amount

40% of undervalued amount

55% of undervalued amount

The Customs Enforcement Manual contains several useful examples of undervaluation.

Example A

A traveller declares at primary that he bought a car for $1,000 and does not present a receipt.  At the secondary examination, the officer questions the traveller on the purchase.  The traveller admits that the car is undervalued, and voluntarily discloses that the actual value is $4,000.  This would be a Level 1 violation, and the amount of duty owing (assuming the correct duty had been paid on the $1,000) would be 25% of 3,000.

Example B

A traveller does not declare at secondary that be bought a boat even though it is on the back of his car.  The officer finds a receipt in the car’s dashboard for $418,000.  This would be a Level 2 violation, and the amount of duty owing would be 40% of $418,000.

To the best of my knowledge, the CBSA Enforcement Manual is not publicly available.  However, we have obtained a copy of it through an Access to Information and Privacy Act request and have made it available for purchase on this blog.   The price for this document, which is a massive 1,274 pages, is $32.95.  Our goal in providing the CBSA Enforcement Manual is to help you save valuable research time, and to provide you with a comprehensive understanding of how the CBSA operates.  Please note, however, that this document is current only as of 2012.

© All rights reserved. Canada Border Services Agency. Reproduced with the permission of the Minister of Public Works and Government Services Canada, 2013.

Applying for a Work Permit at the Port of Entry

Many individuals know that people who are exempt from the requirement to obtain a Temporary Resident Visa can apply for a Work Permit at a Canadian Port of Entry.  What many do not realize is that this extends to people from any country who are returning to Canada after a trip to the United States.  Specifically, r. 190 of the Immigration and Refugee Protection Regulations states that:

(3) A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

(i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it;

We have made available for purchase on this blog an internal CBSA Memorandum from March 8, 2007, addressing this issue.   The price for this document, which was obtained through an Access to Information and Privacy Act request, is $6.95.  Our goal in providing this document is to help you save valuable research time.  As well, it may be useful for you to bring a copy of this document either to the Port of Entry if you apply for a work permit there, or to a meeting with any immigration lawyer or consultant that you may have on this issue.

We have provided the first page of the memorandum as a sample below.

© All rights reserved. Canada Border Services Agency. Reproduced with the permission of the Minister of Public Works and Government Services Canada, 2013.