Chapter 3: The Canada Border Services Agency's National Security and Intelligence Activities — Authority structure for national security and intelligence activities
National Security and Intelligence Committee of Parliamentarians Annual Report 2019

Authority structure for national security and intelligence activities

324. CBSA administers and enforces over 90 acts, regulations and international agreements on behalf of other federal departments and agencies, the provinces, and the territories. ^{Footnote 27} This collection of acts and regulations is known as CBSA’s program legislation. The CBSA Act, the Customs Act, and the Immigration and Refugee Protection Act (IRPA) are the most relevant for examining CBSA’s national security and intelligence activities. To fulfill its obligations under its program legislation, CBSA uses several operational programs and activities, including five areas of greater sensitivity: targeting, covert surveillance, the use of confidential human sources, lookouts, and CBSA’s participation in joint force operations. Each of these activity areas will be discussed below.

325. CBSA has no explicit statutory authority for conducting these sensitive national security and intelligence activities. Rather, CBSA’s authority for undertaking those activities stems from its mandate to enforce its program legislation. This is consistent with the principles of the Interpretation Act. Put simply, if CBSA is to administer and enforce its program legislation, it must be able to investigate suspected contraventions of that legislation. Moreover, CBSA’s authority to conduct certain activities, such as covert surveillance or the use of confidential human sources, is also rooted in policing and common law powers, which are supported by significant jurisprudence (see paragraphs 331 and 332). In any event, CBSA activities must have a direct link to its mandate and program legislation. ^{Footnote 28}

The Canada Border Services Agency Act

326. The CBSA Act establishes CBSA and its mandate. Importantly, the Act does not list any national security, intelligence or law enforcement activities that CBSA officers are authorized to conduct. The Act provides CBSA with a mandate to provide integrated border services that:

• support national security and public safety priorities; and
• facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation. ^{Footnote 29}

The Act authorizes CBSA to support the administration and enforcement of its program legislation, including the Customs Act and IRPA. ^{Footnote 30}

The Customs Act

327. Along with IRPA, the Customs Act is the primary piece of legislation administered and enforced by CBSA. The Customs Act sets out the legislative authority to control the importation and exportation of goods, and allows CBSA officers to examine, detain or seize goods in cases of non-compliance. The Customs Act provides CBSA authority to question and search persons coming in or out of Canada, search individuals and conveyances, detain individuals, and oblige travel service providers to provide Advance Passenger Information data on each air passenger before their arrival to Canada. ^{Footnote 31}

The Immigration and Refugee Protection Act

328. Responsibilities for the administration and enforcement of IRPA is shared by the Ministers of Public Safety and Emergency Preparedness and Immigration, Refugees and Citizenship with specific responsibilities being given to the Ministers of Employment and Social Development Canada and Justice. IRPA provides designated CBSA officers with the authority to make admissibility decisions for persons seeking entry to Canada and to board and inspect any means of transportation arriving in Canada. ^{Footnote 32}

329. CBSA is responsible for admissibility determinations pursuant to the authority under IRPA of the Minister of Public Safety and Emergency Preparedness. ^{Footnote 33} With respect to national security, for example, a person may be found inadmissible for reasons of:

• security, by engaging in, or being part of a group that engages in, espionage, subversion or terrorism; being a danger to the security of Canada; or engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; ^{Footnote 334}
• human or international rights violations, by committing a war crime, genocide or crime against humanity outside of Canada; being a senior official in the service of a government that the Minister believes has engaged in terrorism, systemic or gross human rights violations, genocide, a war crime or a crime against humanity; ^{Footnote 35} or
• organized criminality, by being a member of an organization that is believed on reasonable grounds to have engaged in organized criminality, or furthering the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity such as people smuggling, trafficking in persons, or money laundering or other proceeds of crime. ^{Footnote 36}

330. IRPA also authorizes CBSA officers to issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or a flight risk. However, an officer does not require a warrant in all cases. Specifically, an officer may detain or arrest a foreign national on entry if the officer is not satisfied with the identity of the foreign national, considers it necessary to complete an examination, or has reasonable grounds to suspect that the individual is inadmissible for reasons of security, violation of human or international rights, or serious or organized criminality. ^{Footnote 37}

The lnterpretation Act

331. CBSA stated that the Interpretation Act is the key enabling authority for the conduct of its national security and intelligence activities. ^{Footnote 38} The Interpretation Act states that, "[w]here power is given to a person, officer, or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given." ^{Footnote 39} For CBSA, this means that where the CBSA Act provides CBSA the power to administer and enforce its program legislation, the Interpretation Act gives CBSA the authority to perform other activities, such as scenario-based targeting, that support the execution of its mandate.

332. [*** This paragraph was revised to remove injurious or privileged information. The paragraph notes that CBSA officers have a duty to enforce specific statutes, and must, by implication, have the necessary tools to identify transgressions of those laws. As stated by the Federal Court in 1992, this authority rests on "an established principle of common law [codified in subsection 31(2) of the Interpretation Act], that '[t]he powers conferred by an enabling statute include not only such as are expressly granted but also, by implication, all powers which are reasonably necessary for the accomplishment of the object intended to be secured."' ^{Footnote 40} ***]

Other acts

333. CBSA also administers and enforces a number of other acts, regulations and agreements that have a national security or intelligence component. These include the following:

• Proceeds of Crime (Money Laundering) and Terrorist Financing Act: From a national security perspective, CBSA’s reporting on cross-border movements of currency or monetary instruments, forfeitures, or seizures contributes to the ability of the Financial Transactions and Reports Analysis Centre (FINTRAC) to detect, prevent and deter the financing of terrorist activities.
• Import and Export Control Legislation: The Export and Import Permits Act, the Customs Act, the Nuclear Safety and Control Act, and the Special Economic Measures Act frame CBSA’s role in Canada's efforts to counter the proliferation of controlled dual-use goods and weapons of mass destruction.
• The United Nations Act: Where the United Nations (through the Security Council) adopts measures (e.g., sanctions) such as complete or partial interruption of economic relations and of rail, sea, air, postal or other means of communication, CBSA works with the RCMP to enforce regulations brought into force pursuant to the United Nations Act. ^{Footnote 41}