Vol. 147, No. 13 — June 19, 2013

Registration

SOR/2013-127 June 7, 2013

CUSTOMS ACT

Customs Controlled Areas Regulations

P.C. 2013-669 June 6, 2013

His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to sections 11.5 (see footnote a) and 99.4 (see footnote b) of the Customs Act (see footnote c) makes the annexed Customs Controlled Areas Regulations.

CUSTOMS CONTROLLED AREAS REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Act” means the Customs Act. (Loi)

“customs controlled area” means an area designated as a customs controlled area by the Minister under subsection 11.2(1) of the Act. (zone de contrôle des douanes)

ACCESS TO CUSTOMS CONTROLLED AREAS

2. For the purposes of paragraph 11.3(1)(b) of the Act, the following persons are prescribed as persons to whom access may be granted:

(a) any person who is arriving in Canada;
(b) any person who is about to leave Canada;
(c) any person who requires access to the customs controlled area for the purpose of administering or enforcing an Act of Parliament or responding to an emergency or for a purpose relating to the health or safety of a person; and
(d) any person who requires access to the customs controlled area for a purpose relating to their business or employment.

PRESENTATION AND REPORTING

3. (1) For the purposes of paragraphs 11.4(1)(a) and (1.1)(a) of the Act, the prescribed manner of presentation is presentation in person.

(2) For the purposes of paragraph 11.4(1)(b) of the Act, the prescribed manner of report is an oral report.

SEARCH OF PERSONS

4. For the purposes of subsection 99.2(2) of the Act, the prescribed persons are the persons set out in paragraphs 2(c) and (d).

5. (1) For the purposes of subsection 99.2(2) of the Act, an officer may conduct a frisk search — a search of a person’s clothed body by manual or technical means — of a person prescribed under section 4 if the officer suspects on reasonable grounds that the person has secreted on or about their person anything in respect of which the Act or the regulations have been or might be contravened, anything that would afford evidence with respect to a contravention of the Act or the regulations or any goods the importation or exportation of which is prohibited, controlled or regulated under the Act or any other Act of Parliament.

(2) For the purposes of subsection 99.2(2) of the Act, an officer may conduct a strip search — a visual inspection of a person’s naked body during which the person may be required to open his or her mouth — of a person prescribed under section 4 if the officer believes on reasonable grounds that the person has secreted on or about their person anything in respect of which the Act or the regulations have been or might be contravened, anything that would afford evidence with respect to a contravention of the Act or the regulations or any goods the importation or exportation of which is prohibited, controlled or regulated under the Act or any other Act of Parliament.

(3) A strip search must be conducted in a private area.

NON-INTRUSIVE EXAMINATION OF GOODS

6. For the purposes of subsection 99.3(1) of the Act, a non-intrusive examination of goods is to be conducted using an imaging tool, trace particle or vapour detection tool, nuclear or radiation detection tool or other detection tool that permits the examination of goods without opening them.

COMING INTO FORCE

7. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

Current environment and regulatory impact

Organized crime coerces, or colludes with, workers who have unrestricted access to secure areas at air, marine or land ports of entry (POEs) to smuggle drugs and other contraband into Canada; this type of activity is commonly referred to as internal conspiracy. The Canada Border Services Agency (CBSA) currently has the statutory authority but no supporting regulations to question or to search such workers who are suspected of involvement in the smuggling of drugs and other contraband into Canada. The Customs Controlled Area Regulations will give effect to many components of the customs controlled area (CCA) statutory regime under sections 11.2 to 11.5 and 99.2 to 99.4 of the Customs Act such that the CBSA may question and search these POE workers.

A CCA would be a designated area where there is a likelihood that departing domestic travellers and/or domestic workers come into contact with international travellers and/or goods that have not yet been processed and cleared by the CBSA. CCAs would be designated at Canadian POEs and also at other locations where the CBSA conducts clearance of travellers and/or inspection and release of goods.

Each CCA-designated area will be “fence to fence” with exclusions. “Fence to fence” with exclusions means that the designated area will, generally, be contained within the POE’s property line with portions of the POE property omitted where there is not likely to be contact between domestic persons and uncleared international travellers and/or goods. Examples of excluded areas are administration offices, domestic departure lounges, domestic only arrival carousel areas, washrooms, lunchrooms, and locker and shower rooms for employees.

CCA-designated areas will be identified and demarcated by signage. The signs would not describe the CCA physical boundaries due to the ever-changing usage, allocation and addition of space at border facilities and POEs. Two types of signs would be used to provide notification of the presence of a CCA: (1) A “notice” that will contain an excerpt from the Customs Act indicating the requirements for presentation and reporting of goods acquired while in CCAs; and (2) a “generic CCA sign” that will demarcate the areas designated as CCAs.

The proposed CCAs would be designated at ports of entry and other locations where the CBSA conducts the clearance of travellers and/or inspection and release of goods, where there is a likelihood that departing domestic travellers and/or domestic workers come into contact with international travellers and/or goods that have not yet been processed and cleared by the CBSA, such as within

International airports;
Marine ports; and
Cruise ship terminals.

The CBSA will collaborate with port authorities to develop and deliver site-specific information sessions to affected employees.

Background

The legislative authority to designate CCAs has existed since 2001. However, legislative amendments to the Customs Act (Bill S-2) were required to improve the operational functionality of the CCA initiative. On June 11, 2009, Bill S-2, An Act to Amend the Customs Act, received Royal Assent. The initial CCA legislation authorized CBSA officers to examine goods and to question and search individuals only when exiting a CCA. The amendments included in Bill S-2 now authorize CBSA officers to examine goods and to question and search persons exiting and within the CCA. These Customs Act amendments provide flexibility to monitor and to control POE locations where organized crime is known or suspected to smuggle drugs or other contraband by way of internal conspiracies. The CCA Regulations are required to give effect to the CCA Customs Act provisions which will allow CBSA officers to question and search POE workers.

Law enforcement organizations, such as the CBSA and the Royal Canadian Mounted Police (RCMP), have identified the involvement of organized crime in internal conspiracies at air, marine and land POEs. The following are examples of suspected internal conspiracies at each mode of entry into Canada:

Air mode

In July 2007, the Toronto Airport Drug Enforcement Unit arrested and charged eight people with drug-related offences in relation to the importation, exportation and trafficking of approximately 39 kg of ecstasy tablets, 3 kg of cocaine, 3.6 kg of marihuana and $106,000 in cash. This group is believed to have had members of its criminal network working within the airport who were able to use their positions to facilitate the movement of drugs and money to and from Canada. (see footnote 1)

Marine mode

In May 2004, officers at the Port of Vancouver seized a total of 45 kg of narcotics (a street value of $5.6 million) in a container of coffee beans originating in Columbia. Among the coffee bags, officers found three sports bags within 10 feet of the container’s entrance. The sports bags containing the narcotics would have been easily accessible to dockside employees. The sports bags’ location in the container is indicative of an internal conspiracy.

Land mode

In April 2010, 351 kg of ketamine was seized from a sufferance warehouse in British Columbia. A shipment was transferred in-bond from the port to the sufferance warehouse. At some point during the transfer to the sufferance warehouse, the ketamine was removed from the shipment. Subsequently, the shipment was sent from the sufferance warehouse to a CBSA Container Exam Facility for inspection. At the CBSA Container Exam Facility, it became apparent that goods that had been previously imported were used to replace missing boxes. Further investigation revealed that these missing boxes contained the ketamine. More importantly, it was discovered that the warehouse operators had been complicit in switching the missing boxes containing the ketamine with the boxes that had been previously imported. This illustrates how employees with access to a secure area, such as a sufferance warehouse, can use their positions to smuggle drugs.

Objectives

The objectives of the CCA Regulations are to

(1) Assist in reducing the flow of drugs or contraband into Canada;
(2) Improve intelligence information on smuggling behaviours at Canada’s POEs; and
(3) Assist in disrupting the activities of organized crime.

Description

Although CCA legislative authorities currently exist in the Customs Act, they cannot be enforced without the CCA Regulations. In addition, no CCAs have been designated; therefore, no CCAs currently exist.

The CCA Regulations will be made pursuant to sections 11.5 and 99.4 of the Customs Act. The CCA Regulations will

prescribe the manner by which persons who are inside or who are exiting a CCA must present and identify themselves to an officer when requested to do so;
prescribe the manner by which persons who are exiting a CCA must report goods acquired within the CCA to an officer, when requested to do so;
prescribe the persons or classes of persons that may be granted access to a CCA; and
specify the methods by which and circumstances in which officers may conduct searches of designated persons and examinations of goods within, and at the exit points of, a CCA.

Manner of presentation of persons and report of goods

Currently, CBSA officer authorities are limited to questioning and searching persons who are entering or leaving Canada. Section 11.4 of the Customs Act states that persons must present themselves to and answer questions asked by CBSA officers while within or exiting a CCA, upon an officer’s request.

Prescribed classes of persons requested to do so will be required to present themselves in the manner prescribed in the CCA Regulations (i.e. in person), and to identify themselves. In addition, upon exiting a CCA, persons requested to do so will be required to report any goods that they have acquired through any means while in the CCA. Such reports will be made orally, as prescribed by the CCA Regulations.

In addition, an officer may ask routine questions of an individual who is in or who is leaving a CCA to determine the purpose for the individual’s presence in the CCA, and to verify whether that individual is in the area for a legitimate purpose. The CBSA officer may verbally ask for

The name of the individual;
Their identification/security access pass (if applicable);
The name of their employer/place of employment;
The purpose of their presence in the CCA;
Their plane ticket (if applicable); and
A description of any goods acquired in the CCA.

Persons or classes of persons granted CCA access

Under section 11.3 of the Customs Act, no owner or operator of a facility (i.e. a POE) containing a CCA shall grant to any person access to a CCA unless that person has been authorized by the Minister, is a prescribed person, or is a member of a prescribed class of persons. The CCA Regulations will prescribe classes of persons to whom access may be granted.

The following are classes of persons who may be granted access to a CCA through the CCA Regulations: first, people arriving in, or about to leave, Canada; second, people who need to administer or enforce an Act of Parliament (e.g. the Aeronautics Act), such as Citizenship and Immigration Canada or Transport Canada officials; third, emergency workers (e.g. fire, police, or paramedics); and finally, those requiring access for their business or employment, such as dock workers or cleaning staff.

The CCA Regulations have been designed to ensure minimal disruption to travellers, employees and businesses that have a legitimate purpose for being in a CCA while enabling CBSA officers to focus on areas of risk and persons of interest. Although the CCA Regulations enable the Minister to implement additional authorization requirements for entry to a CCA, no such requirements are currently being contemplated. The CCA Regulations will permit continued CCA access to travellers, employees and businesses under the same screening requirements currently in place; they will be able to conduct their business as they do now. Individuals without a legitimate reason to be in a CCA will not be permitted in the designated areas.

Types of searches of the person

Searches

Under paragraph 99.4(b) of the Customs Act, the circumstances and manner in which searches of the person are to be conducted and the types of searches that may be conducted may be prescribed by regulation. The CCA Regulations will prescribe two types of searches: frisk and strip searches.

A frisk search — a search of person’s clothed body by manual or technical means — occurs when an officer has reasonable grounds to suspect that the individual is in possession of contraband. Reasonable grounds to suspect are achieved as a result of indicators developed during the questioning of the individual in possession of the goods or through the use of detection tools.

In practice, if an officer determines that a frisk search is required, the officer will

(a) Detain the person for purposes of the search and afford that person their rights and cautions as per the Charter of Rights and Freedoms.
(b) Contact a senior officer who will review the grounds for the search and approve its taking place.
(c) Ensure that the frisk search is conducted by a person of the same sex as the person being searched.
(d) Remove the individual to a private room or ensure that the individual is afforded as much privacy as possible.
(e) Advise the person that they may have the validity of the search reviewed by a senior officer and, if that senior officer does not agree that the search is valid, the senior officer may direct the release of the individual.
(f) Summon a senior officer if the individual requests a review.
- Note: A review by a senior officer may be conducted via telephone, if a senior officer is not on site.
(g) A CBSA officer will conduct the search as per current CBSA policy and procedures.
(h) Require the individual to remove outer layers of clothing such as overcoats, jackets, parkas or coveralls when the person is fully clothed beneath these items, before performing the frisk search.

Frisk searches carried out under this authority do not affect any authority of an officer to carry out a frisk search for officer safety.

A strip search — a visual inspection of a person’s naked body during which the person may be required to open his or her mouth — may be conducted when an officer has reasonable grounds to believe the individual is in possession of contraband. The reasonable grounds to believe standard for strip searches is a higher threshold than the reasonable grounds to suspect standard for frisk searches. Suspicious articles detected during the search for evidence may raise the officer’s reasonable grounds from suspect to believe. CBSA officers must observe and be able to clearly articulate the raised standard from suspicion to belief required for a strip search in a CCA.

The CCA Regulations require that strip searches occur in a private area.

If an officer has determined that a strip search is required, the officer will

(a) Detain the individual for purposes of the search and afford that person their rights and cautions as per the Charter of Rights and Freedoms.
(b) If rights and cautions have already been communicated, explain that the examination has advanced to include a strip search and remind the individual that they have the right to contact counsel.
(c) Contact a senior officer for authorization to perform the search.
(d) Ensure the strip search is conducted by a person of the same sex as the person being searched.
(e) Advise the person that they may have the validity of the search reviewed by a senior officer and, if that senior officer does not agree that the search is valid, the senior officer may direct the release of the individual.
(f) Summon a senior officer if the person requests a review.
- Note: A review by a senior officer may be conducted via telephone, if a senior officer is not on site.
(g) A CBSA officer will conduct the search as per current CBSA policy and procedures; and/or
(h) Release the individual if contraband is not detected during the strip search.

Examination of goods

Section 99.4 of the Customs Act allows for regulations with respect to the manner in which examinations are to be conducted and the machines, instruments, devices or other apparatuses or classes thereof that may be used. The CCA Regulations prescribe the types of tools, such as imaging or vapour detection tools, which will be used to examine goods without opening them (nonintrusive examination of goods).

Under subsection 99.3(3) of the Customs Act, if an officer suspects on reasonable grounds that contraband is present (as a result of indicators developed during the questioning of the individual in possession of the goods or from the use of detection tools), the officer may open any baggage, package or container and examine the contents.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, because the Triage Questionnaire for the proposal was signed and approved by Treasury Board Secretariat — Regulatory Affairs Sector in 2009, well before the implementation of the “One-for-One” Rule.

Small business lens

The small business lens does not apply to this proposal, as there are insignificant costs on small business and because the Triage Questionnaire for the proposal was signed and approved by Treasury Board Secretariat — Regulatory Affairs Sector in 2009, well before the implementation of the small business lens.

Consultation

CBSA consulted with federal government departments, external stakeholders, and the public.

The following federal government departments were consulted in the summer of 2009:

RCMP
Transport Canada
Citizenship and Immigration Canada
Canadian Air Transport Security Authority
Public Safety Canada
Canadian Security Intelligence Service
Foreign Affairs and International Trade Canada

A policy discussion paper was provided that outlined the regulatory wording.

In addition, in the summer of 2009, the CBSA consulted stakeholders external to government, including those from trade, employer and employee associations. The aforementioned policy discussion paper was provided to the following organizations that may be affected by the Regulations:

Aéroports de Montréal
Air Transportation Association of Canada, representing flight training organizations, the commercial airline and aviation industry
Association of Canadian Port Authorities, representing port authorities across Canada
British Columbia Maritime Employers Association, representing all of the employers of labour engaged in work in the long shoring industry in British Columbia
Canadian Airports Council, representing Canadian airport authorities
Canadian Association of Chiefs of Police
Canadian Association of Importers and Exporters, representing importers and exporters
Canadian Business Aviation Association, representing the Canadian business aviation industry
Canadian International Freight Forwarders Association, representing the Canadian international freight forwarding industry
Canadian Labour Congress, representing the International Association of Machinists and Aerospace Workers, the Canadian Union of Public Employees, the Canadian Auto Workers, Teamsters Canada, the Union of Canadian Transportation Employees, the International Longshore and Warehouse Union — Canada, and the International Longshoremen’s Association
Canadian Owners and Pilots Association, representing the interests of private owners of hangars and aircraft pilots in Canada
Canadian Society of Customs Brokers
Capital Hill Group, representing the cruise ship industry
Chamber of Shipping of British Columbia, representing West Coast ship owners/operators
Customs Excise Unions Douanes Accise (CEUDA)/Customs and Immigration Union (CIU)
Halifax Employers Association, representing all of the employers of labour engaged in work in the longshoring industry in the Port of Halifax
International Air Transport Association, representing the passenger and cargo airline industry
International Civil Aviation Organization, a United Nations specialized agency that is the global forum for civil aviation
Inter VISTAS Consulting Inc., representing numerous Canadian airports
Maritime Employers Association, representing all of the employers of labour engaged in work in the long shoring industry in Hamilton, Trois-Rivières/Bécancour, Montréal and Toronto
Shipping Federation of Canada, representing East Coast ship owners/operators
Toronto Pearson International Airport
Port of Corner Brook
Port of Saint John Employers Association, representing all of the employers of labour engaged in work in the longshoring industry in the Port of Saint John, New Brunswick
Vancouver International Airport

No objections were received from the aforementioned government and external stakeholder groups; however, some stakeholders did respond to the summer 2009 consultations with questions. Essentially, the questions were regarding the nature of CCAs, how CCAs would operate with respect to travellers, workers and businesses, and how CCAs would improve security for Canadians. In January 2010, the CBSA responded to all stakeholders by providing a Fact Sheet with questions and answers.

In addition, the CBSA met with other external stakeholders on March 10, 2010, through the Border Commercial Consultative Committee (BCCC). The BCCC provides CBSA officials and commercial stakeholders with a forum for dialogue on Canada’s border operations. At this meeting, the CBSA provided BCCC members with information on how CCAs would operate. In May 2010, the CBSA provided BCCC stakeholders with the aforementioned policy discussion paper and Fact Sheet.

The following BCCC stakeholders were consulted and no objections were received:

Aerospace Industries Association of Canada
American Trucking Association
Association of International Automobile Manufacturers of Canada
Association of International Customs and Border Agencies
Association of Canadian Port Authorities
Canadian Association of Importers & Exporters
Canadian/American Border Trade Alliance
Canadian Chamber of Commerce
Canadian Courier & Logistics Association
Canadian Federation of Independent Business
Canadian International Freight Forwarders Association
Canadian Manufacturers & Exporters
Canadian Produce Marketing Association
Canadian Retail Shippers Association Logistics Ltd.
Canadian Shipowners Association
Canadian Society of Customs Brokers
Canadian Sufferance Warehouse Association
Canadian Transport Lawyers Association
Canadian Trucking Alliance
Canadian Vehicle Manufacturers Association
Chamber of Shipping of British Columbia
Japan Automobile Manufacturers Association of Canada
Livingston International Inc.
Private Motor Truck Council of Canada
Public Border Operators Association
Railway Association of Canada
Shipping Federation of Canada

On November 13, 2010, the Regulations were prepublished in the Canada Gazette,Part I, followed by a 30-day comment period (www.gazette.gc.ca/rp-pr/p1/2010/2010-11-13/pdf/g1-14446.pdf).

Twenty-eight submissions were received. The issues raised were with respect to (1) the absence of consultation; (2) privacy rights; (3) officer authorities and powers; and (4) CCA implementation.

Comments were received from businesses, trade, employer and employee associations and private individuals. All comments were taken into consideration. The CBSA responded directly to each organization or individual by letter. Responses to the key issues raised are summarized below:

1. Consultations with impacted groups

Comment: The CBSA did not consult with stakeholders.

Response: The CBSA consulted with stakeholders on four occasions: in the summer of 2009, January 2010, March 2010, and May 2010. The CBSA provided stakeholders with an outline of the regulatory wording and Fact Sheet, and requested that stakeholders submit their written comments to the CBSA.

2. Privacy

Comment: The Regulations may be in violation of the Canadian Charter of Rights and Freedoms.

Response: Throughout the regulatory development process, the CBSA has worked diligently to ensure that the Regulations will not infringe the rights of employees, travellers or other prescribed persons.

Moreover, the CBSA completed a Preliminary Privacy Impact Assessment (PPIA) of the CCA Program and submitted this PPIA to the Office of the Privacy Commissioner (OPC) in March 2010. The mission of the OPC is to protect and promote the privacy rights of individuals.

In December 2010, the OPC provided the CBSA with their observations and recommendations regarding this PPIA. The OPC’s observations and recommendations were focused mainly on the collection, storage, sharing and protection of personal information obtained from individuals within or when exiting a CCA. The OPC also requested that the CBSA complete a full Privacy Impact Assessment (PIA).

As a result, in November 2011, the CBSA submitted the requested PIA to the OPC. The PIA proposes solutions to eliminate or mitigate any identified privacy risks to an acceptable level. The CCA PIA describes data collection, storage, sharing and safeguarding mechanisms and privacy risk mitigation strategies.

Furthermore, a new Personal Information Bank (PIB) was created for CCAs and registered with the Treasury Board Secretariat in January 2012: Bank Number — CBSA PPU 1106. The CBSA’s Program Branch, Program Modernization Division will be responsible for the bank. This bank will contain information that is related to enforcement activities performed pursuant to the CCA legislation and the CCA Regulations. The purpose of the PIB is to store personal information that will be used to administer the CCA activities. The personal information may include name, contact information, citizenship status, date of birth, employee identification number, other identification numbers, physical attributes and signature. The personal information may be used or disclosed for the following purposes: enforcement, reporting to senior management, safety and security.

Personal information may be shared with Royal Canadian Mounted Police (RCMP), Health Canada, Canadian Food Inspection Agency (CFIA), Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), Citizenship and Immigration Canada (CIC), National Resources Canada, Canadian Firearms Centre, Convention on International Trade in Endangered Species (CITES), Department of Foreign Affairs and International Trade Canada (DFAIT) and Industry Canada. Customs information may be shared with foreign customs agencies under Customs Mutual Assistance Agreements, Mutual Legal Assistance Treaties, Memoranda of Understanding (MOUs) or other agreements and arrangements. Personal information may be shared with international institutions like Interpol. Personal information may be shared with provincial law enforcement authorities and liquor control boards. Personal information may be shared with municipal law enforcement authorities. Personal information may be shared with the Department of Justice. Personal information may be shared within the CBSA with the intelligence, investigations, and recourse sections to enforce the CBSA mandate. Information is used or disclosed for law enforcement purposes. Records will be retained for a maximum of 10 years after collection and then destroyed.

Public notices should include clear depictions of the exact physical boundaries of the CCA.

“Affected employees” should be defined broadly to ensure that all employees who may potentially be affected will receive full consideration and/or explanatory sessions. Examples of employees listed were emergency workers, contractors, technicians, flight crews and other employees. These types of employees should be made aware of this change to their work environment prior to implementation. The CBSA’s intention to work with port authorities to inform affected employees was noted.

CBSA final response

The CBSA committed to addressing each recommendation the OPC made in its final letter, including defining the term “affected employees” broadly.

Use of audio/visual surveillance

OPC request for information

Clarify the role, if any, that audio/visual (A/V) monitoring will play in CCA administration.

CBSA response

The CCA program will not introduce any new video or audio recording technology as a result of the introduction of CCAs. The decision to use A/V monitoring in CBSA-controlled areas, including CCAs, will only be made after completion of a full PIA.

OPC final response

The CBSA’s response regarding A/V monitoring was noted.

CBSA final response

The CBSA committed to keeping the OPC up to date on the progress of CCA designation.

OPC four part test

The OPC employs a four part test to evaluate the appropriateness of new initiatives with respect to (1) privacy; (2) necessity; (3) effectiveness; and (4) proportionality and minimization.

OPC request for information — Four part test

Necessity

The CCA Regulatory Impact Analysis Statement (RIAS) was prepublished in the Canada Gazette, Part I, on November 13, 2010. The drug and money seizures cited in the RIAS were undertaken without the use of the extra and potentially intrusive powers of search and seizure contemplated for CCAs.

Effectiveness

The CCA PIA Action Plan committed to providing the OPC with evidence of CCA effectiveness by the first quarter of 2014–2015. The OPC emphasized that the likely effectiveness of an intrusive program or activity in terms of privacy should be determined before implementation.

Proportionality

The CBSA should ensure that questioning of, searching of, and information collection from individuals not intending to cross the border is undertaken only when demonstrably necessary, based on reasonable grounds to suspect criminal activity.

Minimization

The CBSA should ensure that these new search powers are exercised only when reasonable grounds to suspect illegal activity have been established.

The OPC asked the CBSA to clarify the criteria that will be used to determine whether there are reasonable grounds to suspect illegal activity and how the CBSA will ensure that the criteria are being applied correctly.

CBSA response — Four part test

Necessity

Although the CBSA interdicts the entry of drugs, currency and other contraband in significant amounts, large amounts of illicit goods still enter Canada by way of internal conspiracies. There are no statistics on how much undetected contraband enters Canada every year. The CBSA provided the OPC with statistics on the most recently available data on drug seizures in various modes of transport, expressed in number and dollar value of seizures. The data provided to the OPC represents detected contraband; however, it is reasonable to believe an additional amount continues to go undetected. The CCA Regulations will provide CBSA officers with the authorities needed to detect additional contraband that enters Canada facilitated by internal conspiracies.

Effectiveness

The CBSA remains committed to providing the OPC with evidence of CCA effectiveness, as per the PIA Action Plan.

Proportionality

CCA legislation has been tailored to ensure that the interaction between CBSA officers and individuals within or exiting a CCA is governed by the parameters established by the Canadian Charter of Rights and Freedoms. To respect the privacy of individuals not intending to cross the border, the CCA Regulations have been designed with higher thresholds to question and search persons and to examine goods. For example, as described above, the “reasonable grounds to believe” standard for strip searches is a higher threshold than the “reasonable grounds to suspect” standard for frisk searches.

Minimization

The courts have found that an officer’s reasonable grounds to suspect or believe have both a subjective and objective component. These grounds are also contextual insofar as they vary with the totality of a given circumstance so it is neither useful nor possible to make an exhaustive list of criteria.

The CBSA has long trained its officers to identify potential indicators of non-compliance and to recognize when a combination of these individual indicators can constitute reasonable grounds within a given context. The CBSA defines an indicator as “an abnormality or inconsistency in information or physical appearance or a trend that could create a reasonable suspicion in the mind of an officer that laws administered by the CBSA may have been contravened.” It is important to note that the race, age, and sex of a person are not considered indicators. The mandatory CCA training would reiterate the higher thresholds in place for searches in a CCA and the importance of forming and articulating these grounds appropriately.

Searches of a more intrusive nature (i.e. those involving disrobement) have safeguards built into the legislation. An individual has the right to appeal to a senior officer to have the search decision reviewed. Moreover, as noted above, the Customs Act CCA authorities require that a CBSA officer conducting a search must be of the same sex as the person being subjected to the search. Finally, the CCA Regulations require that a strip search be conducted in a private area.

OPC final response — Four part test

Necessity

It is unclear from the material provided what percentage of seized contraband is attributable to internal conspiracies. The OPC recommended that the CBSA review its analysis to incorporate the experience of other countries (e.g. New Zealand) to provide a more accurate depiction of the necessity, proportionality and effectiveness of the CCA program overall.

Effectiveness

No comment from the OPC.

Proportionality

It is recommended that the CBSA draft a policy that clearly articulates the need for an objective “reasonable cause to suppose” similar to that found in Supreme Court of Canada case law to guide decisions to escalate searches beyond routine questioning.

Minimization

The OPC repeated its recommendation that specific criteria to designate each CCA be developed. In addition, the OPC recommended that objective criteria to search within a CCA should be developed with an individual’s privacy rights as a consideration.

CBSA final response

Necessity

The CBSA committed to addressing each recommendation the OPC made in its final letter, including reviewing its analysis to incorporate the experience of other countries.

Effectiveness

Again, the CBSA committed to providing the OPC with evidence of CCA effectiveness, as per the PIA Action Plan.

Proportionality

The CBSA committed to addressing each recommendation the OPC made in its final letter, including to draft a policy that clearly articulates the need for an objective “reasonable cause to suppose” similar to that found in Supreme Court of Canada case law to guide decisions to escalate searches beyond routine questioning.

Minimization

The CBSA committed to addressing each recommendation the OPC made in its final letter, including the development of specific criteria to designate each CCA and objective criteria to search with an individual’s privacy rights as a consideration.

Accountability for personal information

OPC recommendation

The following were acknowledged from the PIA: (1) that CBSA Access to Information and Privacy (ATIP) Division will conduct yearly reviews of PIA commitments; (2) that the Office of the Auditor General of Canada regularly conducts audits of CBSA Programs; (3) that CCA procedures and manuals will have privacy guidelines incorporated; and (4) that section 107 of the Customs Act and CBSA Memoranda D1-16-1 and D1-16-2 govern information sharing related to seizures. Despite the foregoing, the OPC recommended that the CBSA undertake its own internal audits for compliances with policies and procedures on a regular basis.

CBSA response

The CBSA will continue to work with the CBSA Internal Audit and Program Evaluation Directorate to schedule regular internal audits for compliance with policies and procedures.

OPC final response

No further comments or recommendations.

CBSA final response

No further comments.

Identifying purpose

OPC recommendations

The “notice” of CCAs should be amended to include notification of the possibility of strip searches. The physical parameters of CCAs should be clearly marked at all locations. The CBSA should ensure that Canadians can easily and quickly access clear and understandable information about CCAs on the Agency’s Web site.

OPC request for information

Provide copies of the proposed text to be used for the fact sheet that has been developed and clarify whether informational workshops for employees working in CCAs have occurred.

CBSA response

Signs will be placed at entrances/exits to CCAs with additional signage posted at intervals within the designated areas. However, due to the ever-changing setting of border facilities and ports, posted signs will not indicate the physical limits of the CCA. The complete designations will be made available to stakeholders on the CBSA Web site.

Due to space limitations, the signage will not specifically reference strip searches or, for that matter, any of the activities/actions which might precede such a search. However, this information will be available in hardcopy format at each designated site and will also be provided in full detail on the CBSA Web site once designations are implemented. Accidental entry into a CCA is highly unlikely as entry/exit points are secured areas with restricted access. Nevertheless, the CBSA Enforcement Manual specifically directs CBSA officers to refrain from searching, detaining or arresting a person solely because they are not authorized to be in a CCA.

A draft information pamphlet that will be posted on the CBSA Web site was provided to the OPC. A CCA awareness campaign, including stakeholder information sessions, will start once the CCA Regulations are published in the Canada Gazette, Part II.

OPC final response

No further comment or recommendation from the OPC.

CBSA final response

No further comment.

The CBSA responded to the OPC on January 31, 2013, reaffirming its commitment to address each recommendation the OPC made in its final letter of October 2012, as well as all action items submitted with the original PIA.

3. Officer authorities and powers

Comment: There is lack of clarity with respect to when, how, and where a strip search or a frisk search may occur.

Response: The authorities to conduct a strip or frisk search would only be used by officers in specific circumstances.

A frisk search may be conducted if the officer suspects on reasonable grounds that the person has secreted on or about his/her person anything in respect of which the Customs Act has been or might be contravened, anything that would afford evidence with respect to a contravention of the Customs Act or any goods the importation or exportation of which is prohibited, controlled or regulated under the Customs Act or any other Act of Parliament. An individual would be detained and notified of their Charterrights prior to a frisk search. A frisk search means a search of a person’s clothed body by manual or technical means.

A strip search may be conducted only where the officer believes on reasonable grounds that the individual has secreted on or about his/her person anything in respect of which the Customs Act has been or might be contravened, anything that would afford evidence with respect to a contravention of the Customs Act or any goods the importation or exportation of which is prohibited, controlled or regulated under the Customs Act or any other Act of Parliament. An individual to be strip searched would be detained and would be provided with their Charter rights. A strip search means a visual inspection of a person’s naked body during which the person may be required to open his or her mouth.

A strip search would be conducted in a private area. Furthermore, a strip search and frisk search would be conducted by an officer of the same sex as the individual being searched.

Upon request, the person about to be searched would have the right to have the grounds for the search reviewed by a senior officer prior to the search occurring.

4. Implementation

Comment: More information is needed regarding how CCAs will impact a specific location.

Response: The CBSA recognizes that specific locations that may be designated as CCAs have inherently unique characteristics. The CBSA will continue to work with stakeholders up to, and following, implementation to facilitate the integration of CCAs at specific locations.

Rationale

Objective 1 — Assist in reducing the flow of drugs into Canada

The CCA Regulations will provide CBSA officers with greater flexibility to take enforcement action against POE workers or goods who are suspected to be involved with drug or contraband smuggling. Although this flexibility would assist in reducing the flow of drugs into Canada, it is unlikely to completely stop drug smuggling into the country.

Objective 2 — Improve intelligence information on smuggling behaviours

The ability to question and search domestic workers would provide CBSA officers with more information on the interactions between people and goods at the POEs. The information would contribute to trend identification on overall smuggling behaviours.

Objective 3 — Assist in disrupting organized crime activity

CBSA officers will be present within the locations where internal conspiracies are suspected to be occurring. This presence, together with the flexibility to question and search, may deter organized crime from using these locations at the POEs to smuggle. Moreover, a CBSA presence at these sites, with the CCA Regulations, may discourage workers from being induced by organized crime to participate in an internal conspiracy. Finally, any amount seized would have some impact on drug trafficking and the revenue it provides to organized crime.

Cost-benefit analysis

The proposed CCAs have been designed to ensure that legitimate businesses operating within designated areas may carry on as normal. The CBSA has determined that the costs to the CBSA and businesses in the proposed POE sites will be negligible.

CCA benefits may include the reduction of the entry of drugs into Canada through increased and enhanced intelligence on patterns of behavior related to smuggling and internal conspiracy at POEs. Furthermore, the resultant disruption of drug trafficking could impact revenue generation for organized crime and potentially assist in further reducing the illegal drug trade via Canadian POEs.

Implementation, enforcement and service standards

Implementation

Once the CCA Regulations are registered, the CCAs and corresponding Regulations would be implemented in a phased-in approach. In Phase I, the CBSA plans on designating CCAs at Canada’s three largest airports: Lester B. Pearson International Airport, Pierre-Elliott Trudeau International Airport and Vancouver International Airport. Phase I implementation would occur immediately following registration of the Regulations. Phase II, which would be initiated approximately six months after Phase I, would include CCA designation at the remaining international airports and at marine ports as necessary. In Phase III, commencing six months after Phase II, the CBSA intends to designate CCAs in the highway, rail and postal ports of entry as necessary. In addition, Phase III implementation would include certain duty-free shops, sufferance, and bonded warehouses.

CCAs would be communicated to the public via visible signage, Internet content and pamphlets. Employees and businesses would be provided with outreach activities and tools, including fact sheets, pamphlets, Internet content, questions and answers and information sessions.

Enforcement

The enforcement of the CCA Regulations will be performed by trained officers at each designated port of entry.

The CCA Regulations will authorize the following categories of people to enter CCAs: (1) arriving or departing international travellers; (2) those that need access for purposes related to their business or employment (e.g. dockyard or airport employees); (3) those administering or enforcing an Act of Parliament; and (4) those responding to emergency or health and safety situations (e.g. ambulance attendants).

Non-compliance with the obligations of the Customs Act may constitute an offence punishable by a fine and/or imprisonment. Under the general offence provision of the Customs Act, a fine can range between $50,000.00 and $500,000.00; imprisonment can range between six months and five years.

The CCA authorities will not impact current authorities over international travellers and goods imported into Canada and/or to be exported from Canada.

Contact

Maria Romeo
Director
Program Modernization Division
Programs Branch
Canada Border Services Agency
150 Isabella Street, 7th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613-954-7620
Email: Maria.Romeo@cbsa-asfc.gc.ca

Footnote a
S.C. 2009, c. 10, s. 4
Footnote b
S.C. 2001, c. 25, s. 60
Footnote c
R.S., c. 1 (2nd Supp.)
Footnote 1
RCMP Project SPAWN: A Strategic Assessment of Criminal Activity and Organized Crime Infiltration at Canada’s Class 1 Airports, Ottawa, Ontario: RCMP, 2008.