Analyzing Canada’s public safety, border and national security and immigration issues through Budget 2019 and Bill C-97

On 8 April 2019, the federal government introduced Bill C-97, which is the legislation necessary to implement its 2019 Budget (which was introduced on 19 March 2019). As has become the usual practice, C-97, which is 392 pages long, also contains multiple other amendments to legislation that are contained in the Budget. Both the Budget and Bill C-97 contain several items of potential real consequence for matters of public safety and security, as well as border security and immigration screening and enforcement. It is important that there be public awareness of these issues, which this analysis will help provide.

Two issues are important to consider at the outset:

First, awareness of spending allocations by government is one of the best ways to anticipate policy priorities and intended operational initiatives. This Budget is also unique in that it actually included references to intended legislation that is anticipated to give legislative effect to what the Budget has intended as upcoming actions.

Second, understanding intended legislative and policy changes helps inform awareness of what policy and operational changes are on the horizon which helps informed analysis of exactly what the expected results will be, whether they are justified, and whether they are being fulfilled.

Finance Minister Bill Morneau delivers Budget 2019

Budget 2019 Issues

The following items were included in the Budget that are relevant to public safety and security and related matters:

• Protecting Critical Infra­structure from Cyber Threats (p.174)

Through Budget 2018, the Government took action to strengthen cyber security, committing $507.7 million over five years, starting in 2018-19, and $108.8 million per year in ongoing to support Canada’s first comprehensive National Cyber Security Strategy and to establish the Canadian Centre for Cyber Security.

To bolster the cyber security of critical infrastructure, Budget 2019 now builds on these investments and proposes $144.9 million over five years (starting in 2019-20), including $22.9 million from within existing Communications Security Establish­ment resources. This investment will help protect Canada’s critical cyber systems including in the finance, telecommunications, energy and transport sectors. To this end, the Gov­ernment intends to propose new legislation and make necessary amendments to existing federal legislation to introduce a new critical cyber systems framework.

Funding will also support the Cdn Centre for Cyber Security in providing advice and guidance to critical infrastructure owners and operators on how to better prevent and address cyber attacks.

To promote collaboration between cyber security centres of expertise, the Budget provides $80 million over four years, starting in 2020-21, to support three or more Canadian cyber security networks across Canada that are affiliated with post-secondary institutions. The networks – to be selected through a competitive process – will expand research, development and commercialization partnerships between academia and the private sector, to expand the pipeline of cyber security talent in Canada. Additional details on this program will be announced in the coming months.

Comment: This suggests targeted funding for cyber security protection of critical infrastructure systems which has been recommended for years. It also offers funding to strengthen collaboration between academia and the private cyber security sector. Note as well the announcement of intended cyber security legislation for Canadian critical infrastructure which has also long been recommended. Keep an eye on if such regulatory changes actually occur and if the funding is used to implement improved cyber security rather than holding another ‘consultation’.

• Protecting National Security (p.181)

To support efforts to assess and respond to economic-based security threats, Budget 2019 proposes to invest $67.3 million over five years, starting in 2019-20 and $13.8 million per year ongoing, to Public Safety Canada; Innovation, Science and Economic Development Canada; Global Affairs Canada; and the Royal Canadian Mounted Police, among other federal agencies. These departments and agencies will work together in a coordinated way to enhance outreach and engagement with key stakeholders including Canadian businesses and academic institutions; raise awareness about risks; and enhance the suite of tools to appropriately address threats while continuing to encourage foreign investment, trade and economic growth.

Comment: After more than 25 years of warning, including from FrontLine Security and the Macdonald Laurier Institute (MLI), it’s official: foreign intellectual property espionage does exist, and we need to take steps to prevent it. Once again, success needs to be measured in actual preventive actions rather than fuzzy media releases. This would be a good subject for the National Security and Intelligence Committee of Parliament­ar­ians to track and report on.

• Enhancing Accountability and Oversight of CBSA (p.182)

While the Canada Border Services Agency has procedures in place to hear comments or complaints about the public’s experience with the Agency, to reinforce the accountability and oversight of the Agency, Budget 2019 proposes to invest $24.42 million over five years, starting in 2019-20, and $6.83 million per year ongoing, to expand the mandate of the Civilian Review and Complaints Commission for the RCMP.

To do this, in Budget 2019, the Government proposes to amend the Canada Border Services Agency Act, the Royal Canadian Mounted Police Act and other Acts, as required, to expand the Civilian Review and Complaints Commission to act as an independent review body for the Royal Canadian Mounted Police and the Canada Border Services Agency.

Comment: The fact of funding is secondary to the anticipated policy issue of creating an independent review agency for CBSA. While this is a good idea, the decision to simply roll it into the existing, and less than impressive, RCMP review agency seems based on requiring less work than informed analysis. RCMP and CBSA front line officers have significantly different mandates with inherently different interactions with Canadians. What’s needed is an independent review agency for CBSA with a mandate to hear appeals from original complaints made to CBSA, first instance investigation of interactions that result in death or serious bodily harm and an independent authority to investigate policy and operational issues of the Agency as a whole. It is important that CBSA has an independent review entity, but it needs to be properly mandated, resourced and staffed. Watch for these issues to be the focus of discussion when, and if, legislation is introduced before Parliament is dissolved for the October 2019 election.

• Strengthening the Royal Canadian Mounted Police (p.183)

Budget 2019 builds on these measures and proposes to provide the RCMP with:

• $508.6 million over five years to support policing operations
• $77.3 million over five years and $13.5 million ongoing for enhanced law enforcement at the border
• $68.9 million over five years and $20 million ongoing for enhanced federal policing capacity, including to fight money laundering
• $11.5 million over three years to support transportation security
• $5.7 million over five years and $1.2 million ongoing to protect national economic security.

Comment: These are significant funding allocations which hopefully will be used for the stated purposes and not just siphoned off to cover contract policing costs which has all too often happened. The ‘police operations’ and border law enforcement funding ($586M over 5 years) would more than cover the costs of the repeatedly promised but undelivered sensor system deployment at the Canada-US border to increase domain awareness and dramatically enhance intelligence led interdiction and enforcement to prevent cross border smuggling of guns, drugs, tobacco and people. There is also funding specifically for fighting money laundering (as well as legislative reforms in C-97) which has been a major embarrassment for the RCMP recently. These are positive developments that need to be monitored to ensure the funding is used as announced.

• Enhancing the Integrity of Canada’s Borders and Asylum System (p.184)

In recent years, elevated numbers of asylum seekers, including those that have crossed into Canada irregularly, have challenged the fairness and effectiveness of Canada’s asylum system.

To help address these challenges, the Government will implement a comprehensive Border Enforcement Strategy. Through this Strategy, Canadian immigration, border, and law enforcement officials – including from the CBSA and the RCMP-will be better positioned to detect and intercept individuals who cross Canadian borders irregularly and who try to exploit Canada’s immigration system. Failed asylum claimants who entered into Canada at irregular crossings or between official ports of entry will also be removed on a priority basis.

To support implementation of the Border Enforcement Strategy, and to process 50,000 asylum claims per year, as well as to facilitate removal of failed asylum claimants in a timely manner, Budget 2019 proposes to invest $1.18 billion over five years, starting in 2019-20, and $55.0 million per year ongoing. Additional resources will be provided to strengthen processes at the border, and accelerate the processing of claims and removals, to ensure the asylum system remains available to those genuinely in need of refugee protection. The investment will also expand a pilot project that aims to increase efficiencies among delivery partners in the pre-hearing process for refugee protection claims.

In addition, Budget 2019 proposes to introduce legislative amendments to the Immigration and Refugee Protection Act to better manage, discourage and prevent irregular migration. New resources for immigration and refugee legal aid will build on previous investments, supporting the delivery of legal services, while new Federal Court judicial positions will help ensure efficient and timely processing of asylum claimants seeking judicial review. (see below).

Comment: This funding allocation, while imprecise in measures to be taken, may be the most significant border security related action in years. Given its ‘enforcement’ title, this may represent a funding decision, as recommended by FrontLine, MLI and others, to finally modernize CBSA’s enforcement mandate to authorize port runner pursuit, between port of entry enforcement, participation in cross border enforcement operations such as the Shiprider program and restoration of front line operational personnel cuts. It also clearly indicates an intention, confirmed in C-97, to expedite refugee claim processing and to discourage ‘irregular’ (actually illegal) border crossing into Canada from the US. Close attention needs to be paid to see what actually happens going forward.

• Strategy to Prevent and Address Gender-Based Violence (p.233)

The Government has invested nearly $200 million, and over $40 million per year, ongoing, for new and expanded initiatives related to gender-based violence. The initiatives are organized across the strategy’s three pillars (Preventing Gender-Based Violence; Supporting Survivors and their Families; and Promoting Responsive Legal and Justice Systems), and are coordinated through the Gender-Based Violence Knowledge Centre, that was launched on 10 December 2018.

Comment: This often overlooked issue merits additional funding which, hopefully, will be transferred to local groups and governments that provide operational victim assistance and protection as well as proactive preventive programs.

The Budget also includes details about intended spending which, for some reason, are only included as an ‘Annex’ (Annex 2-Chapter 4.2) and are described as ‘Other Budget 2019 Measures (Not Included in Previous Chapters)’. Irrespective of this format, the allocations remain of interest.

• CATSA Airport Screening (p.300)

Funding is proposed for the Canadian Air Transport Security Authority (CATSA), Transport Canada and the Royal Canadian Mounted Police to ensure that air travellers and workers at airports are effectively screened. The Government also proposes to provide funding for the Canadian Transportation Agency and Transport Canada in support of transitioning CATSA to an independent, not-for-profit entity. The Government intends to introduce legislation to establish this entity. ($600M over 5 years)

Comment: These amendments will replace CATSA with a new public not for profit corporation to perform screening duties at Canada’s airports. It is not entirely clear why this action is being taken but this change should be followed closely especially regarding the current Air Traveler Security Charge which is a tax imposed on all passengers that is administered by Transport Canada and is designed to fund CATSA. Multiple groups have noted, over the years since it was created in 2002, that the revenues produced are significantly more than CATSA costs, and that Transport Canada is simply keeping the unused revenues (hundreds of millions of dollars) for their own purposes rather than helping cover the security costs of other entities like CBSA or other law enforcement agencies. Keep an eye on the money trail.

(CATSA Photo: YHZ)
 

• Modernizing Canada’s Border Operations (p.301)

Funding of $288M over five years for the Canada Border Services Agency to support effective border management and enforcement, and to modernize border operations. This funding will facilitate the safe and timely flow of transactions at the border.

Comment: The specific purposes of this new funding is unclear but hopefully ‘modernizing’ will include addressing issues previously identified by FrontLine, Macdonald-Laurier Institute and others. These include operational staffing cuts, an expanded CBSA mandate to include between port of entry enforcement, the pursuit of port runners, a modernized ‘bad guy’ lookout system, and several other operational issues. Watch for what the money is actually spent on.

• Justice Canada (p.306)

$35M over 4 years to support Enhancing the Integrity of Canada's Borders and Asylum System.

Comment: Presumably, new Federal Court Justices and Justice personnel for refugee case processing.

Proposed Legislation

The Budget provides information, for the first time, about Intended Legislation (p.300) that will be introduced to give purpose to the Budget’s initiatives. Including this information is a positive development.

• Protecting Canada’s Critical Infrastructure

The Government intends to propose new legislation and make necessary amendments to existing federal legislation in order to introduce a new critical cyber systems framework.

• Enhancing Accountability and Oversight of CBSA and RCMP

The Government proposes to introduce amendments to the Canada Border Services Agency Act, the Royal Canadian Mounted Police Act, and other Acts, as required, that would expand the Civilian Review and Complaints Commission to act as an independent review body for the Royal Canadian Mounted Police and the Canada Border Services Agency.

• Strengthening RCMP

The Government proposes to introduce legislative amendments to the Royal Canadian Mounted Police Act and other Acts, as required, that would establish the Management Board for the RCMP.

• Enhancing the Integrity of Canada’s Borders and Asylum System

The Government proposes to introduce legislative amendments to the Immigration and Refugee Protection Act to better manage, discourage and prevent irregular migration.

• Reduce Court Processing Time

The Government proposes to introduce amendments to the Federal Courts Act to create three new judicial positions to help ensure efficient and timely processing of asylum claimants seeking judicial review.

• Strengthening Anti-Money Laundering and Anti-Terrorist Financing Regime

The Government proposes legislative amendments to the Criminal Code and Proceeds of Crime (Money Laundering) and Terrorist Financing Act as well as complementary legislative measures to strengthen Canada’s legal framework and support operational capacity of FINTRACK.

(CATSA Photo: YVR)

• CATSA Transition

The Government proposes to introduce legislation that would enable CATSA to transition to an independent, not-for-profit entity and to establish this entity.

 

C-97 Amendments

Bill C-97, the Bill to implement Budget 2019, contains multiple amendments to existing legislation or new legislation all aimed to implement the different initiatives, and arguably others, contained in the Budget. The following safety and security related issues are noteworthy.

• Combatting Money Laundering

Part 4 of Bill C-97 (Division 2 and 5) amends a number of existing statutes, including the Criminal Code, Proceeds of Crime and Terrorist Financing Act, Seized Assets Management Act and others, to attempt to strengthen law enforcement’s ability to criminally investigate money laundering. As noted above, this priority is also reflected in a specific funding allocation to the RCMP in Budget 2019.

Comment: While these measures are welcome, they do not address the ongoing problems of non-reporting by lawyers, Canadian disclosure requirements that hinder international co-operation and the para military structure of the RCMP that results in transfer on promotion of officers who have gained the necessary expertise over time. This organizational issue cannot be resolved by law and may require internal systemic reforms, increased use of civilian members or contracting out for qualified investigators. In summary, these reforms and funding are a welcome development; they are not a solution to what is now recognized internationally as a significant problem for Canada.  

• RCMP Management Advisory Board

Division 10 of Part 4 amends the Royal Canadian Mounted Police Act to establish the Management Advisory Board, which is to provide advice to the Commissioner of the Royal Canadian Mounted Police on the administration and management of that police force.

Comment: While creating an ‘advisory’ board to the Commissioner may be beneficial, it should be noted that the Com­mis­sioner is not obliged follow any ‘advice’ given, and the Board will be comprised of part-time members with a limited meeting schedule. Both the Commissioner and the Public Safety Deputy Minister, or their delegates, are also to be notified of any Board meeting and allowed to attend and participate in such meetings – without a right to vote. Depending on who is appointed to the Board (by the Governor in Council), this may be a positive development and, hopefully, not something done merely for political optics.

• Marine Pilots

Division 11 of Part 4 amends the Pilotage Act to make a number of regulatory changes including transferring regulatory authority from Pilotage Authorities to the Governor in Council – on the recommendation of the Minister of Transport who will also now have enforcement authority.

Comment: The changes appear to be aimed at increased marine safety and greater and systemic transparency and independence. Why these changes are needed is unclear.

• Aviation Security Screening

Division 12 of Part 4 enacts the Security Screening Services Commercialization Act which dissolves CATSA, the Canadian Air Transport Security Authority, and replaces it with a designated not-for-profit corporate entity. The new entity will take control of CATSA’s assets and it appears that it will also be responsible for designing, imposing and collecting fees for its screening services (passengers and luggage). This new system will apparently replace the current Air Travelers’ Security Charge, which funded CATSA and generated significant revenues which Transport Canada kept (over the objections of airport authorities and law enforcement agencies). Under s. 38 of the new Act, air carriers that collect the security charge (determined by a defined process) from passengers must remit the funds in their entirety to the new screening entity.

The Act also permits the new screening service to provide the services directly or, as is currently the case, to contract the work to private security services. It also creates an enforcement system (ss 43-49) through the Courts to ensure that the new screening service complies with Ministerial and statutory directives.

Comment: Once again, there has been no public explanation about why these changes are being made. It will be interesting, therefore, to track the reaction of airport authorities and airport stationed law enforcement groups to this proposed new regime.

• Immigration ‘consultants’

Division 15 of Part 4 enacts the College of Immigration and Citizenship Consultants Act. This creates a new self-regulatory regime governing immigration and citizenship consultants. It provides that the purpose of the CIC Consultants is to regulate immigration and citizenship consultants in the public interest and protect the public.

Comment: This has long been an issue of public concern as these self-designated immigration ‘consultants’ all too frequently financially exploit persons seeking entry to Canada or processing through our bureaucratic system, with seemingly little consequences. Bill C-97 will create a new private entity to oversee these activities and requires the Minister to establish a code of professional conduct which the self-regulating body will supposedly enforce. Given the failures of this approach in the past, it is unclear why this College of Immigration and Citizenship Consultants will be any different.

• Refugee eligibility and case processing

This is the part of C-97 which has clearly generated the most public attention with the proposed changes being seen as both a betrayal of Canada’s commitment to helping persons in need of protection, including through mass migration in contravention of our existing laws, and an admission that disincentives are required to prevent people from entering Canada illegally between designated ports of entry.

Division 16 of Part 4 amends the Immigration and Refugee Protection Act to introduce a new ground of ineligibility for refugee protection (s.101, c.1) if a claimant has previously made a claim for refugee protection in another country. It also appears to create a different and expedited process that excludes the Refugee Protection Division for considering such claims with restrictions on eligibility for interim status approval while claims are being adjudicated.

Comment: Minister Blair has been less than clear about exactly what the changes will be and the amendments themselves leave multiple questions including:

• Does the exception require a refugee claim having been determined in another country?
• Which other countries does this apply to?
• What happens if the other country refuses to accept them… will they be returned to their country of origin?
• Can persons rejected under this new ground still apply for a pre-risk removal assessment even if they have been granted refugee status in another country or have a claim pending?
• Does this new inadmissibility criteria apply to persons seeking entry at all ports of entry as well as to those having entered Canada from the U.S. between a port of entry?

Given the heated objections from the refugee industry and the immigration lawyers’ club, these amendments will likely receive close scrutiny. As always, in our process-driven immigration and refugee system, ensuring clarity is essential.  

• Measures to expedite removal of deportees

Division 16 of Part 4 amends the Immigration and Refugee Protection Act through proposed s. 87.31 (1) of the Act which provides that if the Governor in Council is of the opinion that the government of a foreign state or the competent authority of any other territory is unreasonably refusing to issue or unreasonably delaying the issuance of travel documents to citizens or nationals of that country or territory who are in Canada, the Gov­ernor in Council may make an order denying or suspending applications for temporary resident visas, work permits or study permits, or any combination of those types of applications, made by any citizen or national of that foreign state or territory.

Comment: This measure to create real consequences for uncooperative countries is an improvement that has previously been specifically recommended by FrontLine and the Macdonald-Laurier Institute as a pragmatic action to expedite removal of deportees. While it hasn’t received much public attention, this change could have significant impact and lead to increased immigration enforcement results.  

Conclusion

Budget 2019 and Bill C-97 contain multiple funding allocations, policy changes and proposed legislative reforms which are directly relevant to matters of public safety, border and national security and immigration screening and enforcement. As always in these matters, having awareness of the details of what is being promised, asking the right questions and tracking the actual results is the best strategy going forward.  

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Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.

An earlier version of this analysis was ­prepared for the Macdonald Laurier Institute.