Colleagues, welcome back to the work of the foreign affairs committee pursuant to the order of reference of Thursday, April 14, 2016, and section 20 of the Freezing Assets of Corrupt Foreign Officials Act, statutory review of the act by our committee.
This afternoon we have two departments and witnesses. The Canada Border Services Agency is represented by Andrew LeFrank, the director general, enforcement and intelligence operations; and Lesley Soper, acting director general, enforcement and intelligence programs. From the Department of Citizenship and Immigration, we have Maureen Tsai, director, migration control and horizontal policy, admissibility branch.
Welcome to all three of you.
I understand that Mr. LeFrank will be making the presentation. On behalf of the committee, I will turn it over to you for your presentation, Mr. LeFrank.
Thank you very much, Mr. Chair and honourable members of the committee. You have already introduced my colleague, so I won't waste any time with that again.
As the committee is aware, CBSA's role is to manage the flow of people and goods to and from Canada. We have a dual role of facilitating legitimate trade and travellers while ensuring the security of Canadians. We prevent the movement of goods and people across the border that represent harm to Canada and Canada's security interests internationally.
Mr. Chair, the agency administers over 90 acts, regulations and international agreements on behalf of other federal departments and agencies, the provinces and territories. It is through the authority of the Customs Act that the CBSA administers and enforces the United Nations Act, the Special Economic Measures Act, and the Export and Import Permits Act, on behalf of Global Affairs Canada. In parallel, the Immigration and Refugee Protection Act provides the agency with legislative tools to address the admissibility of people into Canada pursuant to sanctions regimes under the UN Act.
Turning first to import and export controls, under the United Nations Act and the Special Economic Measures Act, trade and economic sanctions are imposed and implemented in Canada through regulations. These regulations restrict or prohibit the export of certain goods to foreign states and/or designated entities and the import or acquisition of goods from the countries under sanction. Under the Export and Import Permits Act, Canada imposes trade sanctions on goods and establishes an area control list. This list is created and maintained by Global Affairs Canada. Export permits are required for all goods destined to a country on Canada's ACL. The CBSA administers those aspects of the regulations that relate to the import and/or export of goods. Generally speaking, import and export prohibitions and restrictions cover a wide range of commodities that include arms and related material, luxury goods, nuclear and nuclear-related goods, and rough diamonds.
The CBSA uses an intelligence-led and risk-based approach to identify and interdict goods subject to controls under this legislation. With respect to enforcing the United Nations Act, the Special Economic Measures Act, and the Export and Import Permits Act, Border Services officers review declarations and other shipping documents to determine if goods are subject to prohibition or restriction. Goods that appear to contravene sanctions may be detained by a BSO based on the authority of the Customs Act. The agency will then notify Global Affairs Canada of a possible infraction. Global Affairs Canada will determine whether the transaction falls within the scope of the legislation on trade and economic sanctions. Where Global Affairs determines that the transaction violates the UN Act, it will notify the Department of Justice of its findings. The Department of Justice and the Royal Canadian Mounted Police will then proceed with the execution of a seizure and the laying of charges. The CBSA may take an enforcement action under the Customs Act, ranging from the imposition of fines to the seizure of the goods as forfeit, or even the laying of criminal charges under the following conditions: where Global Affairs Canada determines that the transaction is controlled under the Export and Import Permits Act, where Global Affairs determines that a transaction violates sanctions imposed pursuant to the Special Economic Measures Act, where a permit request to the Minister of Global Affairs is absent, or where the Minister of Global Affairs denies a request.
The CBSA is also an important player in Canada's counterproliferation and intelligence communities. The CBSA conducts research and analysis on procurement activity and on the types of commodities being shipped to countries of concern. We work with local and international law enforcement partners, government agencies, and industry partners to identify, interdict, and prevent the illicit export, diversion, and proliferation of chemical, nuclear, radioactive, and biological goods and technology. Specifically, the CBSA prevents exports to countries that pose a threat to us or our allies, countries involved in or under imminent threat of hostilities, and countries under UN Security Council and/or Canadian sanctions.
Mr. Chair, the CBSA is also responsible for denying access to and removing persons from Canada where persons have been determined to be inadmissible under the Immigration and Refugee Protection Act. This work is central to the mandate of the agency, and is carried out at ports of entry and through enforcement within Canada. IRCC is responsible for the immigration processes that take place prior to the arrival of an individual in the country, for example, issuing visas, as well as overall immigration policy and citizenship; and our two organizations work closely to safeguard the immigration system. All foreign nationals who make an application to enter Canada are examined to ensure they are not inadmissible. A person can be rendered inadmissible for a variety of reasons, including involvement in human or international rights violations, criminal activity, security concerns, and involvement in organized crime. In the context of sanctions, for example, an officer may refuse entry to a person who is restricted pursuant to a decision, resolution, or measure of an international organization that imposes sanctions, of which Canada is a member. The United Nations is a good example. Should a foreign national be determined by an officer to be inadmissible, they can be refused the necessary documents required to be issued before entering Canada, such as a temporary resident visa or an electronic travel authorization, know as an eTA, and, as a result of that refusal, be prevented from travelling to Canada.
Mr. Chair, the Customs Act, United Nations Act, the Special Economic Measures Act, the Export/Import Permits Act, and the Immigration and Refugee Protection Act are important instruments to enforce domestic and international norms and laws.
I hope that I have clarified the role of the CBSA in supporting this legislation.
My colleagues and I will gladly take any questions you may have.
To assist the committee, Mr. Chair, in directing its questions, I will be pleased to respond to those related to compliance and enforcement on goods. My colleague Ms. Soper will be best placed to speak to the admissibility of people at the border and after arrival in Canada, and Ms. Tsai will be able to discuss the admissibility and facilitation of individuals prior to their arrival in Canada.
Thanks to all of you for being with us today.
We're in the early stages of this study, but we have heard from a number of witnesses that there seem to be some gaps and some interdepartmental dysfunction or non-connection.
With regard to admissibility, on the first day of our study, I raised the case of Vitaly Malkin, who I'm sure you are familiar with, and his 20-year attempt to get into Canada and to gain Canadian citizenship, despite evidence of quite a history of criminal activity and ill-gotten gains.
We heard from the Office of the Superintendent of Financial Institutions that it's up to banks, basically, to police the funds that come in and out, through FINTRAC, I suppose. We heard from the RCMP that in setting their priorities they're focused these days on anti-terrorism, not necessarily on notorious individuals who might be on another tier of priorities.
We also heard that in the case of Mr. Malkin, for example, Foreign Affairs deferred to CIC, to Immigration, and there were separate CSIS secret files, which have not been opened, with immigration officers regularly denied admission. In the end, an immigration judge disagreed with the immigration officer on the interpretation of the word “entrepreneur”, and allowed Mr. Malkin and millions of dollars into the country.
I'm wondering if you could comment on the interconnection—or not—of the various agencies that have a role in deciding who gets into Canada with what.
I'll speak initially to some of that and then I'll go to my colleagues.
The Canada Border Services Agency works within the legal framework that we have and applies the legislation. It uses a number of factors to ensure that goods and people are in compliance with the laws that we administer and enforce. We work very closely with a number of our partners. We have great communication, collaboration, and co-operation, I would suggest, with Immigration, Refugees and Citizenship Canada, the Canadian Security Intelligence Service, the Royal Canadian Mounted Police, and Global Affairs Canada in the execution of that.
With respect to the various things that we have at our disposal as they relate to admissibility, I'll turn to my colleague.
—but to speak to the overall admissibility framework, we have what is structured as a multiple-border strategy to deal with admissibility as far away from Canada as possible.
Our diligent officers, who are well-trained, Canada-based staff, are making serious inadmissibility decisions in the visa process overseas before people have access to Canada. That information is brought to bear from the CBSA in the work we do in the security-screening space and is provided to these officers overseas, and decisions are taken with a wealth of information in order to make those admissibility decisions. When individuals arrive at our border, we employ the same tools in order to protect Canada.
I think the cohesion among the CBSA, IRCC, and GAC involves a challenging balance of considering diplomatic interests, upholding what is a principles-based immigration framework, and trying to protect the security and integrity of Canada's immigration system.
Certainly. Essentially the Canada Border Services Agency is responsible for reviewing declarations that are made with respect to goods that are exported from the country to ensure that they're in compliance with the various pieces of legislation, most notably in terms of the Export and Import Permits Act, the United Nations Act, the Special Economic Measures Act, as well as goods on the area control list.
Within that framework, Canada Border Services Agency officers will screen the exports to determine and ensure that any that look like they pose a potential risk to non-compliance are referred over to a Border Services officer in the field, who will an conduct an examination to determine whether or not the goods actually line up with what the export declaration says. In addition, they'll determine whether or not those goods are subject to any types of permits. If they believe the goods are actually subject to permits, they'll ask the exporter of record to provide any additional documentary evidence to ensure that the goods are actually going to where they say they're going, that they're the goods they and the origin certificates say they are, and a number of different types of items.
They then refer that to Global Affairs Canada, which is responsible for the issuance of those permits. Global Affairs Canada will determine whether or not it issues that permit and validate whether or not the permit is the right permit for that. If it's not, then the Canada Border Services Agency will take appropriate action.
Thank you very much, Mr. Chair.
I would like to thank the witness for his very interesting presentation.
How does the Canada Border Services Agency convey the necessary information to importers and exporters so that they can comply with not only our laws, but also with our regulations and decisions made by the government?
I know the Office of the Superintendent of Financial Institutions has guidelines in this regard, but they have not been updated for six years.
How does CBSA convey this information? Is the agency responsible for providing that information to importers and exporters and, if so, how does it do so?
It's a good question and it's an important question. There are a number of means by which importers and exporters can have access to information.
The agency website has a number of things that help importers and exporters and guide them in terms of what the regulations are, and, probably just as importantly, it shares with them where in fact they need to go and which other particular agencies are involved in ensuring that they're in compliance.
Related specifically to things subject to the Special Economic Measures Act, the Global Affairs Canada website has a list of goods that are subject to export controls and sanctions, and countries that are involved. In combination with that and the information available through the CBSA on our website and through our business information service line that's available for exporters and importers to ask questions, there are a number of ways in which importers and exporters can avail themselves of the appropriate information.
Just to give you an idea of the order of magnitude, in 2015, about $480 billion worth of goods was exported from Canada. The CBSA receives approximately 800,000 electronic export declarations and approximately 44,000 paper declarations each year. However, not all exports are required to be reported, and there are some instances in which goods aren't reported, so that doesn't represent the whole list.
With respect to the enforcement we've done, I can tell you how many investigations we've conducted. We conducted 11 investigations, and as you're aware, there were two prosecutions. But I think it's important to recognize that the goal of the legislation is not so much to necessarily get a prosecution as to prevent the goods from actually leaving and causing harm, or causing benefit to an unfriendly company.
In the past 250 days, CBSA has prevented approximately 250 export shipments to sanctioned countries. Of those, 64 exports were assessed as prohibited under the Special Economic Measures Act; 41 of those shipments were actually seized as forfeit; 112 of these cases involved shipments destined to Iran in violation of the Special Economic Measures Act, Iran regulations; three involved sanctions against Libya, and two, against North Korea.
Thank you for your testimony.
You've heard today that we're examining potential holes in the current legislative scheme, including what may be missing, what's desirable, and what's needed to fix it. There has been some focus on human rights violations. It sounds as though in the legislative scheme you operate under there isn't a hole and that it's just a question of being able to do your job.
The issue I want to focus on—and it has to do with what Mr. Levitt brought up—is precisely the ability to do your job and to effectively capture an item, a good, or a person that would otherwise get out or get in, particularly in the area of dual-use equipment. Just walk me through—I have a very simplistic approach to this—the difference between a washing machine and a centrifuge that might end up, depending on how it's used, being used for cleaning clothes or for refining something.
Colleagues, that wraps up our hour of discussion with our witnesses.
I want to thank both the Border Services Agency and Immigration, Refugees and Citizenship Canada. Just keep in mind that we might call you back as we work our way through this. One of the issues we're grappling with is that under the FACFOA, there's a lot of discussion about the individuals who are put on the list. One of the questions that pop up is whether those decisions are made in multilateral fora, in the sense that they all seem to resonate around some of our partners. There are no individuals on the list, at least none that we're aware of, who are on the list simply because Canada has put them on it; they exist on other countries' lists as well. There is a process of communication and discussion, and we'd like to follow that up at some point with you. We did not have the time to do that today. We are going to be going, at some point, clause by clause through the legislation, and before we do that, we will certainly either be writing to you or be requesting that you come back to the committee again.
On behalf of the committee, thank you very much for spending some time with us this afternoon, and we look forward to speaking to you again.
Colleagues, we'll take a five-minute break, and then we'll go into in camera discussions on our study of countries of focus.
[Proceedings continue in camera]