The Cost of Detaining “Illegal Immigrants”

When the Canada Border Services Agency began dramatically increasing enforcement operations, many wondered where the Department was going to detain individuals. The provinces, especially Ontario, has indicated for many years that they do not want to be in the “detention business.”  The internal document below shows that at one point the Department went so far as to approach the Department of National Defence to host some immigration detainees, particularly in the case of mass arrivals and security certificate cases.  Ultimately, as the document below also indicates, the Department of National Defence was not interested.

Neither the provinces nor DND appear to be interested in using their facilities to detain “illegal immigrants.”  Given this, I am always surprised when a few CBSA officers (certainly not all, or even most) decide to detain people as a matter of course, only to have them be released only a few days later by the Immigration Division.

Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Wave Throughs at CBSA

Canada Border Services Agency (“CBSA“) officers at land border crossings are faced with an impossible task.  They have to interdict individuals who may be a public or health risk, process hundreds of thousands of foreign nationals and permanent residents who have assorted applications and immigration requirements which must be assessed, and collect taxes.  CBSA Officers have to do all of this while somehow maintaining a balance between ensuring compliance with the law and ensuring that wait times at the border are not unnecessarily long.  The failure to do either perfectly without disrupting the other will result in negative media scrutiny.

Of all of CBSA’s roles, it is perhaps the enforcement of Canada’s customs laws that is the most difficult to manage.  Memorandum R17-1-3, found in People Processing Manual Part 5: Accounting for Casual Importations: Chapter 11: Waiver Policy (the “People’ Processing Manual“), explains the conditions under which the CBSA may waive nominal assessments and accounting requirements on casual goods.  In brief, casual goods imported by an individual may be released without assessment when the federal duties and GST/HST owing (as well as any provincial taxes, excluding PST) do not exceed a threshold of $3.00.

The Manual contains the following useful example (paraphrased):

Children’s toys valued at CAN$40 are imported by a resident of Ontario through a CBSA office in Ontario.  The goods qualify under the United States Tariff.

The amount of duty is accordingly zero.  GST would be $2.00.

Because the amount of the federal duty is less than $3.00, the goods qualify under the wave-through policy, and the individual would not pay the duty.

Officers are only supposed to waive amounts higher than $3.00 in cases where the volume of collections would result in unacceptable delays, when interdiction activities are in progress, or for other reasons determined by local management.  Practical factors which impact the decision to waive the $3.00 limit include levels of traffic in the secondary area, available parking spaces, available staff, etc.  It is generally superintendents who will modify the $3.00 rule.

Complicating factors for individual CBSA officers in determining whether to wave someone through are scenarios where GST is exempt (groceries), when officers have to try to determine where a good was produced for the purpose of determining the applicable duty, constantly changing tariff rates, and of course, the increase in the personal exemptions contained in the 2012 Budget.

The purpose of this post is not to provide individuals with some secret amount to declare so that they are waived through.  Such a number does not exist, and failure to accurately declare is a breach of the Customs Act.  Rather, it is to explain the existence of Memorandum R17-1-3 so that people understand that there is a method behind what can seem to some individuals like blind luck.  As well, it is to show the challenges which CBSA Officers face so that people understand why the 100% collection of taxes at the border isn’t possible. 

The internal CBSA PowerPoint below highlights some of the issues that CBSA faces.  Please note that the PowerPoint below is a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  While I believe that the content is still accurate, I cannot be assured of this.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

CBSA Arresting People without a Warrant

On March 15, 2013, the Canada Border Services Agency (“CBSA“) conducted a raid on a construction site in Vancouver.  Much of the media attention has focused on the fact that a reality television crew apparently followed the CBSA officers onto the premise.  Many have also commented on how surprised they were that the CBSA apparently arrested many foreign nationals without warrants, and wondered whether this was legal. 

It is.

Section 55(2) of the Immigration and Refugee Protection Act (the “Act“) states that:

An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,

(a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or

(b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.

A foreign national in Canada may be inadmissible for numerous reasons, including if they have remained in Canada beyond the period authorized by their visa, or if they have worked without authorization.  If an officer has reason to believe that the foreign national has done something to make them inadmissible, and believes that they likely won’t appear for examination or removal when directed to do so, the officer may arrest and detain the individual.  That individual will then have the right to detention reviews at the Immigration and Refugee Board.

In addition to the CBSA, peace officers (the police) also have the authority to arrest and detain individuals without a warrant if they believe that s. 55(2)(a) of the Act applies.

Section 17 of the Citizenship and Immigration Canada Enforcement Manual (“ENF-7”) provides an overview of the procedures and constitutional protections that CBSA officers are expected to follow during an arrest.  ENF-7 is not publicly available, however, I have reproduced a copy of s. 17 of ENF-7 here.  Please note that this document was obtained through an Access to Information and Privacy Act request, and may not be current.

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Removing Flags at the Port of Entry

I was recently asked where one can learn how to request that an “enforcement flag” against them be removed so that an individual does not have to go to a secondary examination every time they enter Canada.

This is actually a question that comes up rather frequently, so for all those who are interested, here is the relevant section from the Citizenship and Immigration Canada Manual: