Last updated on May 23rd, 2019
Both Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (“CBSA“) are responsible for ensuring that Canada’s immigration system maintains the security of Canadian society. One of the ways that both departments do this is by determining that individuals are inadmissible to Canada.
In this post I will review and summarize a CBSA Intelligence Advisory that was obtained through an informal Access to Information Act. The Intelligence Advisory was produced by the CBSA Intelligence Operations and Analysis Division in September 2016. It expired in January 2017. The Intelligence Advisory identified certain countries that at the time posed unique issues for CBSA’s mandate of protecting Canadians. In reproducing the information below my goal is not to stigmatize members of these communities nor to imply that their citizens are a threat. Rather, it is to present information as produced by the CBSA for informational purposes only. Every person deserves to be treated as an individual. However, it is contrary to common sense to suggest that certain communities don’t have unique circumstances.
Statistics on Inadmissibility
From 2007 to 2016, the Canada Border Services Agency wrote reports for the following inadmissibilities:
Read more ›
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.Read more ›
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.
Last updated on October 23rd, 2020
Marilyn Sanford joins Peter Edelmann and Steve Meurrens to discuss whether the Canada Border Services Agency can search people’s electronic devices.
In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicized case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall.
Finally, Peter and Steven touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.
Marilyn is a criminal defense attorney in Vancouver.Read more ›
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“).
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,Read more ›
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:
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.Read more ›
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.Read more ›
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.
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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,Read more ›
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 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 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.