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

National security and intelligence activities

Mandate and the use of intelligence

359. As noted in the introduction, CBSA is best understood as an organization whose primary mandate is based on making admissibility decisions concerning goods and people and facilitating the flow of legitimate trade and travel; its national security responsibilities flow from that mandate. In the area of intelligence, CBSA conducts limited intelligence collection activities as part of a small program that supports operational activities across its full mandate.

360. CBSA’s national security and intelligence activities support the organization's layered approach to risk assessment at each stage of the travel continuum. Three CBSA programs use or produce intelligence to support national security risk assessment needs:

• Targeting program: CBSA reviews pre-arrival information and intelligence for all travel modes to identify high-risk travellers and goods for examination upon arrival. This involves scrutiny of the movement of people and the shipment of goods, food, plants and animals.
• Intelligence Collection and Analysis program: CBSA collects, interprets and assesses intelligence to create and distribute actionable intelligence products (such as lookouts and bulletins) to its partners on the movement of people or goods across the border. ^{Footnote 83}
• Security Screening program: Pursuant to IRPA, CBSA screens temporary resident and permanent resident applicants referred to it by IRCC, and all adult refugee protection claimants for admissibility determinations related to terrorism, espionage and subversion, and war crimes, crimes against humanity and genocide; and organized criminality. ^{Footnote 84}

361. In addition to the program areas of Targeting, Intelligence Collection and Analysis, and Security Screening, several other CBSA programs can contribute to national security outcomes, including the following:

• Immigration Enforcement: This program involves activities such as investigations, detentions, hearings, and removals of foreign nationals and permanent residents who are, or may be, inadmissible to Canada, pursuant to IRPA, for reasons such as terrorism, subversion, war crimes, organized crime or serious criminality.
• Criminal Investigations: CBSA pursues the investigation and prosecution of travellers, importers or other persons who commit criminal offences in contravention of Canada's border legislation. ^{Footnote 85} Cases with national security implications are forwarded to the RCMP.
• Traveller Facilitation and Compliance: This includes the review of travellers' declarations and documentation prior to, or upon arrival at ports of entry to determine if travellers and their goods meet the requirements of applicable customs and immigration legislation and regulations. CBSA admissibility decisions may result in the interdiction of goods and persons of national security concern.
• Commercial Trade Facilitation and Compliance: This program includes interdicting noncompliant goods and conveyances at the border, monitoring admissible or controlled goods, and post-border compliance verifications, including export controls under the Export and Import Permits Act. ^{Footnote 86}

362. CBSA conducts a number of national security and intelligence activities to support these programs. These activities (or tools) are:

• detection and targeting tools, which inform CBSA’s risk assessments, and include radiation detector portals, biometric technology, small- and large-scale imaging, chemical trace detection technology, submersible cameras, and targeting activities, including scenario-based targeting;
• investigative techniques and tools, which support more detailed investigations and include surveillance, confidential human sources, lookouts, and joint force operations; and
• the tools and activities of partners, which include the intelligence activities and products of CSIS (human intelligence reporting), the Communications Security Establishment (signals intelligence reporting), the RCMP and CBSA’s B5 partners. ^{Footnote 87}

The Committee examines the most sensitive of these activities in paragraphs 368-430.

Expenditures on intelligence

363. Since 2015, CBSA has tracked its spending on intelligence as part of the National Security Expenditure Review, which was re-named the National Intelligence Expenditure Review in 2016-2017. CBSA’s investments in supporting the government's implementation of the intelligence priorities are depicted in Table 16:

Source: CBSA. 2015-2016, 2016-2017 and 2017-2018 submissions to the National Intelligence Expenditure Review.

364. In addition to its resource expenditures in support of intelligence priorities, CBSA spent another $*** on its Integrated Enforcement and Intelligence Priorities, for a total of $*** ***% of total department expenditures in 2017-2018. ^{Footnote 88} CBSA explained that the year-over-year increase in spending and personnel depicted in its National Intelligence Expenditure Review data is not a result of increases in the size of its intelligence program, but rather changes in calculation methodologies that included more program elements in later years.

Enforcement and intelligence priorities

365. In 2017, the Minister of Public Safety and Emergency Preparedness provided formal ministerial direction to CBSA to implement the government's intelligence priorities for 2017- 2019. ^{Footnote 89} The ministerial direction is meant to guide the alignment of CBSA’s internal priorities, programs and resources with the government's Standing Intelligence Requirements. It also outlines the Minister's expectations for CBSA as it works to implement the intelligence priorities through the 2017-2019 cycle. ^{Footnote 90} CBSA stated that its receipt of the ministerial direction was also meant to "reinforce Ministerial and [deputy ministerial] accountability and [to] create greater consistency within the Public Safety portfolio." ^{Footnote 91}

366. Based on the Minister's direction, CBSA produced intelligence on a subset of the government's intelligence priorities for 2017-2019 in support of the CBSA mandate. Table 17 shows CBSA’s areas of focus, its volume of intelligence reporting in response to the Minister's direction and its percentage of intelligence effort.

Sources: CBSA, *** April 17, 2019; and CBSA, *** CBSA intelligence products include intelligence alerts, lookouts, intelligence briefs, intelligence advisories, intelligence bulletins, intelligence analysis, threat assessments and threat analysis reports.

367. Internally, CBSA has developed a tiered prioritization scheme for its enforcement and intelligence programs. ^{Footnote 92} These enforcement and intelligence priorities apply to CBSA’s relevant enforcement and intelligence programs, which allocate a higher proportion of enforcement and intelligence resources to higher-risk threats and higher-level requirements (see Table 18). Although the Minister's direction identifies *** as priorities for CBSA, CBSA’s enforcement and intelligence priorities do not address them directly. Rather, CBSA stated that "these threats have not been established as standalone [enforcement and intelligence] priorities but are considered aggravating factors when assessing the level of harm associated with offences under [either IRPA or the Customs Act] and [where] the priority of that offence is elevated; referral to the RCMP would normally be required." ^{Footnote 93}

Source: CBSA, Integrated Enforcement and Intelligence Priorities 2017/18 - 2019/20. * CBSA stated that its Tier 4 priorities are addressed through CBSA’s normal border-related operations and border enforcement efforts, and thus do not receive dedicated intelligence resources.

Sensitive national security and intelligence activities

368. Of the many tools and activities employed by CBSA, the Committee focused its review on CBSA’s most sensitive security and intelligence activities due to their associated risks, including risks to privacy and human rights. These activities are scenario-based targeting; surveillance; confidential human sources; lookouts; and joint force operations. The Committee examines each of these activities in turn by describing the authorities under which they are conducted, the governance structures to which they are subject, the risks they pose and the results they produce.

Scenario-based targeting

369. CBSA identified scenario-based targeting as a program that uses or produces intelligence to support risk assessment efforts. ^{Footnote 95} Scenario-based targeting identifies high-risk people, goods and conveyances bound for Canada that may pose a security threat. Using scenarios, CBSA conducts prearrival risk assessments for air passenger, air cargo, marine cargo, marine crews and vessels, highway cargo, and cruise ships, with planned expansion to commercial rail. ^{Footnote 96}

370. Scenarios are computer-based algorithms. CBSA creates scenarios of high-risk patterns of travel based on information from CBSA’s own programs and intelligence from Canadian and allied organizations. Scenarios are compared against passengers' biographical information and travel itineraries, which are provided to CBSA in advance by transport service providers, and manually assessed by targeting officers. ^{Footnote 97} When officers cannot negate an identified risk through their assessment, they notify the port of entry, which refers the passenger to a mandatory secondary examination. This process is known as scenario-based targeting.

371. Targets are not indicative of the culpability of their subject. Rather, they are risk management tools that signal to border services officers that particular people, goods and vessels may pose a threat to the security and safety of Canada.

Authority for scenario-based targeting

372. CBSA stated that its authority to conduct scenario-based targeting is found in the CBSA Act, the Customs Act, IRPA and various regulations. ^{Footnote 98} As noted in paragraph 326, the CBSA Act authorizes CBSA to support national security and public safety priorities, facilitate the free flow of persons and goods, and administer and enforce its program legislation. Together, IRPA and the Customs Act require that all goods, persons and conveyances are reported to a CBSA officer, who is authorized to make admissibility decisions for both persons and goods. Scenario-based targeting allows officers to manage risk by focusing this lawful authority on goods, persons and conveyances that are of high-risk of noncompliance with CBSA’s program legislation.

373. Pursuant to Customs Act regulations and IRPA, the owner or person in charge of a vessel must provide CBSA with advance information about the vessel itself and the persons and goods on board or expected to be on board. ^{Footnote 99} The scenario-based targeting program uses information collected under these authorities. ^{Footnote 100} These obligations apply to commercial transporters of passengers travelling by air, marine and rail. ^{Footnote 101}

Governance of scenario-based targeting

374. In 2010, CBSA established the National Targeting Program as the functional authority to provide direction for all targeting activities. Following a phased implementation of a centralized National Targeting Business Model, CBSA established the centralized National Targeting Centre in 2012. ^{Footnote 102} The establishment of the National Targeting Program was driven primarily by the desire to reduce the duplication of targeting efforts and to establish national standards for targeting across the various travel modes. ^{Footnote 103} Scenario-based targeting is consistent with the targeting methodologies used by other B5 countries. ^{Footnote 104} CBSA’s international partnerships are discussed in paragraphs 353-358

375. Scenario-based targeting is conducted within the National Targeting Centre, which operates 24 hours per day, 7 days a week within the National Border Operations Centre. *** the Canada Revenue Agency and U.S. Customs and Border Protection have an on-site presence at the National Targeting Centre, allowing for collaboration and support of the Targeting Program. ^{Footnote 105} Governance of CBSA’s Scenario Based Targeting Program is provided by the Enforcement and Intelligence Program Management Table, chaired by the Director General of the Intelligence and Enforcement Directorate. The Table is accountable to CBSA’s Program Policy Committee, which reports in turn to the CBSA Executive Committee on strategic policy and program delivery. ^{Footnote 106}

376. Two CBSA governance bodies manage the development and use of scenarios:

• Targeting Program Management Committee: This body is responsible to ensure the management of the Targeting Program is efficient, effective and operationally compliant with international agreements, and with legislative and regulatory requirements. ^{Footnote 107} It reports quarterly to the Enforcement and Intelligence Program Management Table. ^{Footnote 108}
• Scenario Management Committee: This body is responsible to ensure that scenario-based targeting is effective and complies with privacy, legislative and regulatory requirements. Significant issues are escalated to the Targeting Program Management Committee where necessary.

Risks in targeting activities

377. CBSA acknowledges its use of scenario-based targeting comes with risks. CBSA stated that controls are in place to mitigate these risks, as outlined in Table 19 below:

Source: CBSA, Review of CBSA National Security and Intelligence Activities, Presentation to NSICOP, May 7, 2019.

378. CBSA also acknowledged that scenarios in the air mode may infringe the civil liberties or human rights of travellers due to their reliance on API/PNR data from air carriers. ^{Footnote 109} Consistent with relevant acts and agreements, CBSA takes measures to ensure that scenarios do not contain information that could reveal passengers' racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, or information about their sex life. As examples, scenarios may not include information on passengers' meal preference, family status, disability requirements, language, passport designation or birthplace ^{Footnote 110}

379. Sections of the Protection of Passenger Information Regulations govern the retention, use and disclosure of PNR information. ^{Footnote 111} Target records are retained by CBSA for 10 years, and are available only to specified employees of the National Targeting Centre. The records are not available to front-line CBSA officers at a port of entry. ^{Footnote 112}

Scenario development

380. CBSA takes a number of steps to develop scenarios. Scenarios are informed by previous enforcement actions, documented intelligence shared by national and international intelligence and targeting partners, and information stemming from security incidents or events. This can include *** ^{Footnote 113} In addition, when targeting scenarios are proposed, targeting officers must include the specific statutory authority that supports the creation of the scenario. ^{Footnote 114}

381. Scenarios fall within three main categories:

• National security: concerning terrorism and terrorist financing;
• Immigration: concerning non-genuine visitors, inadmissible persons, human smuggling/trafficking and previous deportations; and
• Contraband: concerning illicit drugs, weapons, proceeds of crime (currency smuggling), obscene material, and child exploitation material. ^{Footnote 115}

382. The National Targeting Centre has identified *** as its highest priorities. ^{Footnote 116} CBSA has tracked national security scenarios in the targeting program since 2013-2014 (see Table 20). ^{Footnote 117}

Source: CBSA, Written response to NSICOP Secretariat questions: Question 4(d)(ii), March 1, 2019; and CBSA, Written response to NSICOP Secretariat questions: Question 1, July 5, 2019.

383. Proposed scenarios are subject to multiple stages of analysis and approval before use. First, CBSA analyzes each scenario against historical data to understand how many targets the scenarios may produce and, consequently, whether scenarios require narrowing or broadening. Scenarios are reviewed for traveller impact and to ensure adherence to statutory and regulatory requirements. ^{Footnote 118} If a violation of civil liberties, privacy or human rights is identified, the National Targeting Centre is notified to discuss resolution and engages senior management as required. ^{Footnote 119}

Example of scenario-based targeting in practice

384. CBSA uses scenario-based targeting in the air passenger mode to identify potentially high-risk individuals travelling by plane to Canada. For this travel mode, CBSA obtains API/PNR from air carriers. CBSA then runs this data against scenarios to identify matches or "hits." CBSA targeting officers manually review these hits in order to assess and, where applicable, negate risk. This review consists of mandatory queries of internal and partner databases and open sources, a review API/PNR information, and consultation with other units within CBSA for information to confirm or deny a possible risk. Where risk cannot be negated for an individual hit, targeting officers proceed to a comprehensive review, comprising additional system queries. For national security targets, mandatory consultation with CSIS, the RCMP, U.S. Customs and Border Protection, and the Canada Revenue Agency is required. ^{Footnote 120}

385. If risk cannot be negated by targeting officers, a target is issued, resulting in the mandatory referral of the passenger for secondary examination on entry, for customs or immigration purposes, or both. During this examination, border services officers rely on information obtained through the scenario-based targeting process to conduct the examination and to further assess risk. Following the examination, border services officers are required to enter the results of their examination into the Integrated Customs Enforcement System (ICES). ^{Footnote 121}

Scenario-based targeting results

386. CBSA’s use of scenario-based targeting has had an important impact on national security by identifying otherwise unknown individuals of national security concern (see Table 21).

Sources: CBSA, National Border Operations Centre, National Security Targeting Monthly Report - March 2016; CBSA, National Border Operations Centre, National Security Targeting Monthly Report - March 2017; and CBSA, National Targeting Centre, National Targeting Centre Targeting Intelligence Monthly Report 2017-18.

387. Table 22 illustrates the year-over-year impact for CSIS of CBSA national security information sharing (from the Targeting Program).

Sources: CBSA, National Border Operations Centre, National Security Targeting Month Report - March 2016; CBSA, National Border Operations Centre, National Security Targeting Month Report - March 2017; and CBSA, National Targeting Centre, National Targeting Centre Targeting Intelligence Monthly Report 2017-18.

Surveillance activities

388. CBSA defines "surveillance" as "the covert observation of persons, vehicles, places or other objects to obtain information about individuals or organizations, where there are reasonable grounds to suspect they are in contravention of legislation administered by the CBSA." (emphasis in the original) ^{Footnote 122} CBSA conducts surveillance activities to acquire or corroborate information that may lead to a direct enforcement action (e.g., execution of a removal order) or other activities such as arrests, lookouts, seizures of goods, obtainment of search warrants or referrals to other security partners. ^{Footnote 123} Surveillance is only conducted within Canada and as part of inland enforcement operations.

389. For CBSA, surveillance includes:

• observing a house, place of business or other location to identify associates of a target, or to observe conveyances being used by a target and their associates;
• conducting site visits where officers use deception by pretending to be a fictitious person and make fictitious enquiries to obtain information for a CBSA investigation;
• following or observing a target to gather information on patterns of behaviour or movement to obtain evidence of suspected illicit activities, confirm suspicions of contraband smuggling or other illicit activities, or to locate contraband;
• following a target vehicle in order to install a court-authorized tracking device;
• following or observing a target to gather information that will assist in developing reasonable and probable grounds for an arrest or search warrant;
• following or observing a target to obtain detailed location information in preparation for the execution of a search or arrest; and
• following or observing a target to confirm information supplied by a source or from a tip. ^{Footnote 124}

Authorities for conducting surveillance activities

390. CBSA stated that its authority to conduct surveillance activities can be found in the CBSA Act and the Interpretation Act. ^{Footnote 125} As noted in paragraph 326, the CBSA Act provides CBSA with a mandate to provide integrated border services that support national security and public safety priorities, facilitate the free flow of persons and goods, and administer and enforce its program legislation. CBSA officers derive a common law authority, via the Interpretation Act, to engage in activities such as surveillance to accomplish the agency's enforcement mandate. CBSA’s authority to conduct surveillance is limited by the Canadian Charter of Rights and Freedoms, CBSA’s Code of Conduct, provincial traffic regulations, and other applicable legislation and policy. ^{Footnote 126}

Governance of surveillance activities

391. CBSA’s surveillance activities are governed by a formal Surveillance Policy. The policy stipulates that only select CBSA intelligence officers, investigators and in land enforcement officers are authorized to conduct surveillance activities. Those officers must complete mandatory surveillance training and certifications, and occupy positions where participation in surveillance operations is required. CBSA can conduct surveillance activities only within Canada. ^{Footnote 127} The Surveillance Policy also requires CBSA to have reasonable grounds to suspect that a specific target is involved in the contravention of CBSA program legislation. This suspicion must be associated with a specific individual: CBSA cannot conduct surveillance if it only has grounds to suspect that contraventions of its program legislation are occurring in a particular place or in association with a particular activity. ^{Footnote 128}

392. CBSA’s surveillance activities are part of the Enforcement and Intelligence Program. In contrast to the governance architecture for scenario-based targeting, CBSA’s surveillance operations are not subject to the oversight of governance bodies dedicated only to surveillance. Rather, the Surveillance Policy dictates that senior CBSA officials approve surveillance activities. The Surveillance Program is reviewed by CBSA’s National Surveillance Coordinator, who reviews all approved surveillance plans and summary reports of all surveillance activities for policy and legal compliance, issue identification and resolution, performance, and costs. ^{Footnote 129}

393. The Surveillance Policy states that approval levels for surveillance activities differ by level of expected risk. At a minimum, surveillance activities require the approval of a regional director. Surveillance activities that involve Canadian fundamental institutions - which include religious institutions, hospitals, women's shelters and post-secondary institutions - are considered higher risk and require a higher level of approval. ^{Footnote 130} Specifically, all operations involving surveillance of the perimeter of a Canadian fundamental institution require the approval of the regional director general, while all operations involving surveillance in a Canadian fundamental institution require the approval of the Vice-President, Intelligence and Enforcement. ^{Footnote 131} In exceptional circumstances that require an immediate response, CBSA officers may verbally brief senior officials and obtain approval to conduct surveillance. Such cases require CBSA officials to complete written surveillance proposals and approvals as soon as possible, and do not apply to surveillance involving Canadian fundamental institutions. ^{Footnote 132}

Risks in the use of surveillance

394. There are inherent risks in the conduct of surveillance activities. CBSA has adopted a number of measures to mitigate these risks. Risks and associated mitigation measures are depicted in Table 23.

Source: CBSA, Review of CBSA National Security and Intelligence Activities, Presentation to NSICOP, May 7, 2019.

395. All proposals for surveillance operations must include an assessment of a reasonable expectation of privacy. ^{Footnote 133} This assessment is designed to determine whether the target of surveillance operations has a subjective expectation of privacy, and whether that expectation is reasonable. CBSA conducts this assessment before a proposed surveillance operation and during ongoing operations, because an individual's reasonable expectation of privacy is context-specific and can change over time. ^{Footnote 134} Officers must withdraw from surveillance activities if there is an unacceptable risk to any person or if a person's reasonable expectations of privacy may be infringed. ^{Footnote 135}

396. CBSA does not require a warrant to engage in surveillance where a target has no reasonable expectation of privacy. Conversely, it must obtain a warrant to engage in a surveillance activity where a target has a reasonable expectation of privacy. ^{Footnote 136} Warrants may be issued only if there are reasonable grounds to believe that a specific offence is involved. ^{Footnote 137}

Results

397. Since fiscal year 2015-2016, CBSA has produced annual reports on its surveillance operations. These reports summarize the number of approved surveillance operations conducted within each region, and include the area of focus of operations (smuggling and contraband, immigration fraud, irregular migration and national security), associated costs and results. See Table 24.

Sources: CBSA, Annual Report on National Surveillance Operations, Fiscal Year 2015-2016; CBSA, Report on National Surveillance Operations: Fiscal Year 2016-2017; and CBSA, Report on National Surveillance Operations: Fiscal Year 2017-18.

Confidential human sources

398. CBSA defines confidential human sources as individuals who:

• are willing to provide information of value, related to the mandate of the CBSA, that cannot be easily obtained through other sources;
• indicate to a CBSA employee that they wish their identity to be treated confidentially; and
• after a positive CBSA evaluation, receive an assurance of confidentiality from a certified CBSA confidential human source (CHS) officer and are registered within CBSA as a CHS Program participant. ^{Footnote 138}

399. CBSA’s use of confidential human sources dates to 1984. ^{Footnote 139} CBSA stated that confidential human sources are not agents and that the distinction between a "human source" and an "agent" is critical. For CBSA, a confidential human source is a person who volunteers information to CBSA and who requests and receives assurances that their identity be treated confidentially. That confidentiality is a near-absolute privilege recognized by the courts. ^{Footnote 140} In contrast, an agent is "a person who acts on the direction of a law enforcement officer to assist in the development of a target operation." Agents are not protected by informant privilege. ^{Footnote 141} CBSA does not work with agents and it does not direct its sources to act on its behalf. As discussed in paragraph 405, CBSA may co-handle a confidential human source with another law enforcement organization in the context of a joint force operation, but CBSA would terminate its relationship with the source if he or she became an agent for that organization.

400. CBSA does not promise ongoing payment for information from its confidential human sources. CBSA may provide monetary "awards" to confidential human sources whose information leads to significant enforcement actions. ^{Footnote 142} CBSA stated that its financial authority to issue monetary awards to confidential human sources stems from its legal authority to investigate contraventions of program legislation and from its authority under Part III of the Financial Administration Act to expend money in accordance with its law enforcement mandate. ^{Footnote 143} The CBSA CHS Program operates only within Canada. ^{Footnote 144}

401. As of 2014, CBSA tracked the use of confidential human sources in internal annual reports, including year-over-year changes in the number of registered CHS Program participants, regional fluctuations in the use of confidential human sources, evolutions in the policy and governance structure for the CHS Program, and the value and impact of enforcement actions taken as a result of information provided by such sources.

Authorities for the use of confidential human sources

402. CBSA stated that its authority for the recruitment, use and development of confidential human sources is the CBSA Act and the Interpretation Act. ^{Footnote 145} As noted in paragraph 326, the CBSA Act provides CBSA with a mandate to provide integrated border services that support national security and public safety priorities, facilitate the free flow of persons and goods, and administer and enforce its program legislation. The Interpretation Act, in turn, provides CBSA the authority to use confidential human sources to accomplish its enforcement mandate. The authority to use confidential human sources is also grounded in common law powers.

Governance of confidential human sources

403. CBSA stated that, prior to 2014, there had been no formal policy on the recruitment, development and management of confidential human sources, and no standard operating procedures in place to guide handlers and co-handlers in carrying out their duties. ^{Footnote 146} In 2014, CBSA formalized its CHS Program and standardized its approach to the management, coordination and operational use of confidential human sources. The resulting CHS Policy and CHS Standard Operating Procedures define who may engage in activities with CHS Program participants (sources), how such activities will be conducted, and how engagements related to confidential human sources will be managed with other Canadian law enforcement agencies. ^{Footnote 147}

404. The CHS Policy and CHS Standard Operating Procedures establish a graduated, risk-based framework to control the recruitment, approval, development and management of confidential human sources. As risk levels increase, the level of approval required for developing or managing an individual confidential source also increases. Control measures include obligations to officially register sources as CHS Program participants, requirements that only CBSA officers trained and certified as CHS officers may handle sources, and that in-person meetings with sources are conducted by two certified CHS officers and supported in every case by documented operational plans. ^{Footnote 148}

405. The CHS Policy prohibits certain categories of individuals from being used as sources, including *** ^{Footnote 149} The policy also requires special approval from the CBSA President for sources from potentially sensitive groups (such as a member of a Canadian fundamental institution) or former employees of a foreign law enforcement or intelligence organization; and from the CBSA Vice-President or Associate Vice-President of the Intelligence and Enforcement Branch in exceptional cases, currently used to approve the co-handling of sources with another law enforcement agency. ^{Footnote 150}

406. The CHS Program is part of the Enforcement and Intelligence Program. The Enforcement and Intelligence Program is responsible for the "functional direction, application and monitoring of policy, legislation and jurisprudence, standard setting for training and the measure and reporting on national performance of the CHS Program." ^{Footnote 151} It is also responsible for implementing and ensuring compliance with the CHS Policy, and ensuring that CBSA senior management is kept apprised of any operational issues that could affect the integrity of the CHS Program. ^{Footnote 152}

Risks in the use of confidential human sources

407. In its CHS Policy, CBSA acknowledges that the use of confidential human sources can involve considerable risks. ^{Footnote 153} Table 25 lists the risks and measures to mitigate them.

Source: CBSA, Review of CBSA National Security and Intelligence Activities, Presentation to NSICOP, May 7, 2019.

Internal review of the CHS Program

408. The CHS Program has undergone two internal reviews: in 2014 and 2018. The 2014 review sought to assess risks associated with CBSA’s authority to use confidential human sources, and the adequacy of the CHS Program design, guidance and operational procedures. The review found that CBSA’s authority for the CHS Program was derived from its mandate and that CBSA "has the appropriate legislative basis to carry out the Confidential Human Source Program." ^{Footnote 154} That said, given the sensitivities of the program, the review recommended that CBSA seek ministerial direction for CHS and other sensitive activities (this direction had been sought in 2013, but not provided). The review also stated that CBSA officers responsible for conducting CHS activities had expressed concerns about the absence of formal policies that described clear roles, responsibilities and accountabilities. It recommended that such policies be developed; they subsequently were. ^{Footnote 155}

409. The 2018 review suggested that the absence of ministerial direction had caused uncertainty around CBSA’s mandate and legal authority to conduct CHS activities over the previous five years. ^{Footnote 156} [*** The following three sentences were revised to remove injurious or privileged information. The sentences note that the Committee understood that CBSA derived its authority to conduct CHS activities from its statutory law enforcement mandate. ^{Footnote 157} *** ] ^{Footnote 158} Nonetheless, the 2018 review noted that, "the lack of a clear program direction is limiting the extent to which CHS activities support CBSA’s operations," and that obtaining ministerial direction was an opportunity to bring CBSA in line with other portfolio partners that have ministerial direction for their CHS activities, including the RCMP and CSIS. ^{Footnote 159} The Committee addresses this issue in its findings.

Results

410. CBSA employs a financial methodology to assess the success of its CHS Program. In general terms, CBSA stated that the CHS Program assists "the Agency in obtaining critical intelligence that may not be otherwise available [and which adds] value to both tactical and strategic Agency intelligence and enforcement programs." ^{Footnote 160} Specifically, CBSA evaluates the success of the program by a measure of "enforcement value" *** based on information provided from individual sources. ^{Footnote 161} Table 26 illustrates the annual size of the CHS Program by the number of active, registered confidential human sources since 2014-2015, the number of enforcement actions based on the information they provided, and the dollar value that CBSA has placed on those enforcement results.

Source: CBSA. Data compiled from Confidential Human Source Program annual reports for the years 2014-15, 2015-16, 2016-17, and 2017-18. * Yearly notations of active participants in the CHS Program represent the total active participants in the program up to that point. In any given year, CHS participants may be recruited and added as new sources, or deactivated and delisted as sources.

411. CBSA also tracks how much it spends on awards for each CHS Program participant. It uses these expenditures and the calculated enforcement values (as shown in Table 26) to determine an overall return on investment for the CHS Program (see Table 27).

Source: CBSA. *** various dates.

* ***

Lookouts

412. Lookouts are an electronic record within CBSA’s systems, and are a type of intelligence product that CBSA creates to improve its ability to manage risk at ports of entry. Unlike scenarios, which begin with trend analysis that is informed by intelligence, lookouts are, themselves, an intelligence product.

413. Lookouts are issued in relation to a particular person, corporation, conveyance or shipment that has a high risk of posing a threat to the health, safety, security, economy or environment of Canada or Canadians. ^{Footnote 162} They signal to border services officers that particular goods, persons or conveyances are high risk and, in the case of active lookouts (see paragraph 414), they must be referred for a secondary examination. ^{Footnote 163} Lookouts are a prompt for closer examination, not evidence that border-related legislation has been contravened. ^{Footnote 164} Lookout information contains specific instructions for intercepting officers that allow them to take appropriate action, including precautions that intercepting officers should take to ensure their safety or to explain further reporting requirements. ^{Footnote 165}

414. Following the secondary examination of lookouts, border services officers must input lookout examination results into the CBSA’s Integrated Customs Enforcement System. This includes "any relevant information requested by the lookout originator and additional information, which must be within CBSA’s legal authorities and mandate." ^{Footnote 166} Lookouts can be issued by CBSA *** ^{Footnote 167} Other government departments and agencies are responsible for the maintenance of lookouts issued on their behalf. ^{Footnote 168} CBSA reviews lookouts prior to their expiration and may modify and extend them based on new information, the interception of the subject of the lookout and officer discretion. ^{Footnote 169}

415. [*** This paragraph was revised to remove injurious or privileged information. The paragraph discusses types of lookouts. ***]

• ***
• *** ^{Footnote 170}

Authorities for the use of lookouts

416. CBSA stated that its authority to issue lookouts can be found in the CBSA Act and the Interpretation Act. ^{Footnote 171} As noted in paragraph 326, the CBSA Act provides CBSA with a mandate to provide integrated border services that support national security and public safety priorities, facilitate the free flow of persons and goods, and administer and enforce its program legislation. CBSA officers derive their authority to employ tools such as lookouts to accomplish their enforcement mandate from an established common law doctrine, now codified in the Interpretation Act (see paragraphs 331-332).

Governance of lookouts

417. Governance for lookouts consists of assessments conducted by CBSA officers before lookouts are issued and monthly reviews of lookouts by senior management. Prior to issuing a lookout, CBSA officers must confirm it is consistent with the CBSA mandate and program legislation, and assess the relevance, reliability and credibility of the information on which it is based. To ensure compliance with lookout policies and procedures, senior management undertakes monthly reviews of the accuracy and validity of a sample of lookouts created and maintained by their staff. ^{Footnote 172}

418. CBSA lookouts that involve other government organizations are governed by a number of acts and policies. If information collected as a result of a lookout is to be disclosed to other government organizations, it must be done pursuant to section 107 of the Customs Act or section 8 of the Privacy Act. ^{Footnote 173} When lookouts issued by other government organizations would require border services officers to engage in questioning that extends beyond CBSA program legislation, a warrant is required. ^{Footnote 174}

Risks of lookouts

419. Table 28 lists the risks and mitigation measures CBSA identified related to its use of lookouts.

Source: CBSA, Joint NSICOP hearing with CBSA, CSIS and the RCMP, May 16, 2019; and CBSA, Email response to NSICOP Secretariat, June 14, 2019.

Results of lookouts

420. As noted in paragraph 413, lookouts signal to border services officers that particular goods, persons or conveyances are high risk and (in the case of active lookouts) must be referred for a secondary examination. ^{Footnote 175} As a prompt for closer examination, as opposed to a specific indicator of the contravention of border legislation, CBSA measures results for the use of lookouts in two ways. First, through a measure of the number of lookouts successfully intercepted - that is, the positive correlation of goods, persons, or conveyances with a specific lookout, and the divergence of that person, good or conveyance to secondary examination. The second measure of success for the use of lookouts is a measure of the n umber of secondary examination reports, or results, that are entered into CBSA systems, and which may feed additional information to CBSA intelligence officers and provide a proof of record for border services officer decision-making and interactions with travellers. CBSA stated it could not provide a disaggregated breakdown of its use of lookouts solely for national security purposes. As a result, no further details on the results of CBSA’s use of lookouts is available.

Joint force operations

421. CBSA defines a joint force operation as "an ongoing or regularly occurring activity with law enforcement partners, either international or domestic, designed to reach well defined objectives that support the CBSA’s mandate." ^{Footnote 176} CBSA participates in joint force operations with federal, provincial, municipal and international partners to "leverage the combined expertise and resources of participating organizations to achieve common or complementary enforcement goals." ^{Footnote 177}

422. CBSA engages in four types of national security-related joint force operations. These are:

• Integrated National Security Enforcement Teams (INSETs): Located in major cities across Canada, INSETs are led by the RCMP to ensure a coordinated approach to investigating the activities of individuals or organizations that pose a threat to national security by sharing federal, provincial and municipal resources. ^{Footnote 178}
• National Security Joint Operations Centre (NS-JOC): The NS-JOC coordinates the government's response to high-risk travellers or individuals, provides intelligence support to INSETs, and collocates analysts from participating agencies.
• Integrated Border Enforcement Teams (IBETs): IBETs are Canada-U.S. inter-agency teams that identify, investigate and combat cross-border criminal activity and security threats.
• Marine Security Operations Centres (MSOCs): MSOCs co-locate personnel from CBSA, Fisheries and Oceans Canada, the Canadian Coast Guard, the RCMP, Transport Canada, and the Department of National Defence to respond to national security threats in the marine environment. ^{Footnote 179}

Authorities for joint force operations

423. CBSA stated that its authority for participating in joint force operations is the CBSA Act and the Interpretation Act. ^{Footnote 180} As noted in paragraph 326, the CBSA Act provides CBSA with a mandate to provide integrated border services that support national security and public safety priorities, facilitate the free flow of persons and goods, and administer and enforce its program legislation. CBSA officers derive a common law authority to leverage the shared resources and expertise of its partners (in a joint force environment) to accomplish the agency's enforcement mandate. Importantly, CBSA’s authority to participate in joint force operations is limited to those circumstances where there is a direct connection to the CBSA mandate and program legislation. CBSA activity in a joint force environment is prohibited in all other circumstances. ^{Footnote 181}

Governance of joint force operations

424. CBSA’s participation in joint force operations is managed by a designated National Coordinator within CBSA’s Intelligence and Enforcement Branch. The National Coordinator is responsible for reviewing all proposed joint force operations to ensure they are consistent with CBSA’s policy, mandate and priorities and, when approved, are implemented according to the CBSA Joint Forces Operations Policy. The policy provides for a governance and internal oversight system consisting of internal approvals, reporting, review and formal agreements between CBSA and its partners. ^{Footnote 182} The National Coordinator is also responsible for ensuring that each stage of a joint force operation remains consistent with CBSA’s mandate, legislation and priorities. If an operation deviates from CBSA’s mandate, legislation and priorities, CBSA ceases its participation. ^{Footnote 183}

425. Before it can participate in a joint force operation, CBSA and its partners complete a Joint Forces Operation Agreement. This agreement has two components:

• Joint Force Operation Assessment, a management-approved, written description of the proposed activity, which must include provisions to assess and measure the performance of CBSA participation in the joint force operation; and
• Joint Force Operation Written Collaborative Arrangement, a document that establishes the parameters of a working partnership within a joint force operation and that complies with CBSA policy. ^{Footnote 184}

The written collaborative arrangement defines the respective roles, responsibilities and authorities of each member. ^{Footnote 185} CBSA stated that the Joint Forces Operation model permits it and its partners to identify and resolve challenges, and described joint force operations as "well-oiled machines." ^{Footnote 186}

Risks in joint force operations

426. There are risks associated with joint force operations. Table 29 lists the risks and measures to mitigate them.

Source: CBSA, Review of CBSA National Security and Intelligence Activities, Presentation to NSICOP, May 7, 2019.

Measuring joint force operations results

427. CBSA performance in joint force operations and its return on investment is measured against the objectives set out in the Joint Force Operations Agreement. ^{Footnote 187} CBSA began tracking performance metrics across all joint force operations in mid-2017, and Table 30 lists the results:

Sources: CBSA, National Security Joint Operation Centre (NS-JOC), Briefing note, February 9, 2018; and CBSA, Written response to NSICOP Secretariat questions: Question 2, July 5, 2019.

The National Security Joint Operations Centre (NS-JOC) and high-risk travellers

428. The Committee further explored CBSA’s efforts to identify and interdict high-risk travellers, a threat to which CBSA responds using the same tools and authorities which it relies upon to counter other border-related threats. ^{Footnote 188} Just as it may do for all persons and goods seeking to enter Canada, CBSA may examine high-risk travellers and their goods to assess admissibility. If a border services officer finds evidence that points to a n offence under the Criminal Code or under any other Act of Parliament during a n examination, the officer may seize the evidence and detain the individual for transfer to the police of jurisdiction, pursuant to the Customs Act. ^{Footnote 189} CBSA may also refer a Canadian suspected of being a high-risk traveller to CSIS, who may interview the individual, subject to that person's consent. ^{Footnote 190} If there is not a direct connection to the CBSA mandate, CBSA officers cannot use these powers for the sole purpose of collecting evidence of an offence under the Criminal Code or of criminal offences under any other act of Parliament. ^{Footnote 191}

429. CBSA also contributes to Canada's response to the threat of high-risk travellers through participation in the RCMP-led NS-JOC, which was established in October 2014 as a fusion centre for government departments and agencies with a direct stake in counter-terrorism and the identification and interdiction of high-risk travellers. ^{Footnote 192} As of February 2018, the membership of NS-JOC included officials from the RCMP, CBSA, CSIS, IRCC, DND (the Canadian Forces National Investigation Service and Canadian Special Operations Forces Command), FINTRAC, the Communications Security Establishment, Global Affairs Canada, and the Canada Revenue Agency. ^{Footnote 193} CBSA supports NS-JOC in the fulfillment of its objectives. NS-JOC's main objectives include:

• Act as a centre of expertize specializing in national security investigations: NS-JOC facilitates the sharing of best practices, investigative techniques and subject matter expertise.
• Collect, analyze and disseminate intelligence among member agencies: NS-JOC reports information and intelligence to member agencies, INSETS and RCMP National Security Enforcement sections.
• Review and coordinate a whole-of-government response to emerging issues: For example, NSJOC monitors and reports on the number of returned foreign fighters. ^{Footnote 194}

CBSA’s role within NS-JOC is also to "share relevant information with NS-JOC members regarding highrisk travellers and high-risk individuals, such as watch list and lookout information, in accordance with the relevant sections of the Customs Act and the Privacy Act." ^{Footnote 195}

430. CBSA has also established a high-risk traveller team as part of an interdepartmental high-risk traveller initiative. The team comprises subject matter experts who serve as the central point of contact for front-line operations and partner agencies on matters related to high-risk travellers. This team provides members to the NS-JOC, which produces analyses on emerging high-risk traveller trends, contributes to the identification of high-risk travellers, and coordinates CBSA’s national response to high-risk traveller lookouts and investigations. CBSA’s High-Risk Traveller team also reviews disclosures of high-risk traveller personal information to ensure that the information was lawfully obtained and disclosed. ^{Footnote 196} In 2017, CBSA reviewed all of the cases investigated by NS-JOC in 2016 and found that the high-risk traveller initiative played a direct role in denying *** individuals access to Canada. Table 31 illustrates CBSA’s participation in the NS-JOC specifically relating to high-risk travellers.

Source: CBSA, Written response to NSICOP Secretariat questions: Question 2, July 5, 2019.