Foreign Affairs Committee on Oct. 24th, 2016

[The Chair (Hon. Robert Nault (Kenora, Lib.)), Liberal, Bob Nault]

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.

[Andrew LeFrank, Director General, Enforcement and Intelligence Operations, Canada Border Services Agency]

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.

Merci.

[The Chair, Liberal, Bob Nault]

Thank you very much, Mr. LeFrank.

We'll go straight to questions.

Colleagues, we have roughly 50 minutes. I'll start with Mr. Kent.

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Chair.

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.

[Andrew LeFrank]

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.

[Lesley Soper, Acting Director General, Enforcement and Intelligence Programs, Canada Border Services Agency]

Perhaps I will start by saying that I'm familiar with your raising of the question of Mr. Malkin. I'm sorry that we can't speak to specifics of cases—

[Peter Kent, Conservative, Thornhill, ON]

I understand.

[Lesley Soper]

—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.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

With regard to the Freezing Assets of Corrupt Foreign Officials Act, when it lists those who are identified as politically exposed foreign persons, it doesn't include a new generation of lower-level foreign police or jailers who, as we have seen in the general example of Russia, have accumulated, on credible accounts, large amounts of money, far beyond the lifetime salary that they as lower-level public servants in Russia would be expected to gain. Is that a shortcoming in the corrupt foreign officials act, do you think?

[Lesley Soper]

The current admissibility framework within the Immigration and Refugee Protection Act is quite broad in its delineation of inadmissibilities. It addresses security. It addresses international sanctions. It also addresses organized criminality, and criminality, of course. So there's a broad set of tools available to officers, where there are reasonable grounds to believe wrongdoing may be happening, whether or not the person is listed under a sanction, or whether they're outside of a sanction. There's certainly enough reference material in the public domain that would allow our officers to make a well-founded admissibility decision.

[Peter Kent, Conservative, Thornhill, ON]

Is there a record somewhere that accumulates this information, available in the public domain, whereby all of your agencies and departments would work from a common decision-making base?

[Lesley Soper]

Yes. The foundation of our security screening process is that we have a common resource library in order to inform decision-making on admissibility.

[Peter Kent, Conservative, Thornhill, ON]

I would like to ask all of you, including Madame Tsai, whether you believe that targeted sanctions are more effective and easier to enforce than broad-based general sanctions, in your experience.

[Andrew LeFrank]

I can't comment on that particular beast, and whether or not I find one particularly better than the other.

[Peter Kent, Conservative, Thornhill, ON]

You enforce the laws.

[Andrew LeFrank]

That's what we're providing.

[Peter Kent, Conservative, Thornhill, ON]

Madame Tsai.

[Maureen Tsai, Director, Migration Control and Horizontal Policy, Admissibility Branch, Department of Citizenship and Immigration]

I don't have anything to add to that.

[Peter Kent, Conservative, Thornhill, ON]

In the case of Mr. Malkin, as an example but not speaking to his case specifically, when a border officer in immigration makes a regular denial of admissibility, is there any further appeal up the line when that is overruled?

[Lesley Soper]

Yes, certainly. All admissibilities at port of entry need to be referred to the Immigration and Refugee Board for consideration in front of the immigration division. Consideration of that file can also be judicially reviewed by the Federal Court. Decisions made, taken in the visa context overseas, similarly have access to judicial review, but not in the same scope that's supported at the Federal Court when a person is in Canada and confronted with allegations of inadmissibility.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Kent.

We'll now go to Mr. Fragiskatos, please.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much, Mr. Chair.

I have a question about the Immigration and Refugee Protection Act. Paragraph 35(1)(b) of the act notes that human rights violations are grounds on which inadmissibility can be determined. Genocide is mentioned. War crimes are mentioned. Crimes against humanity are mentioned, but so too are systematic and gross human rights violations.

Could you expand on those later two points, systematic and gross human rights violations, and what that means?

[Lesley Soper]

I don't think I'm able to describe or give you an example of how that might be applied, but I'll tell you how it's utilized in practice.

IRPA's admissibility framework is a fully principles-based framework. It doesn't look to designate specific atrocities, or specific regimes. It looks at the activities of the individual, and admissibility is formed on the basis of those. Regardless of Canada's relationship vis-à-vis the country where the human rights violation may have occurred, if there is a known, documented circumstance in which an individual is implicated in a human rights violation, the admissibility framework stands to render that individual inadmissible to Canada.

[Peter Fragiskatos, Liberal, London North Centre, ON]

In your view, then, there are measures in place, in existing law, that do take into account human rights violations. When those have taken place, it can be determined that an individual cannot be allowed into the country.

I mean, these speak to large-scale human rights violations carried out by officials.

[Lesley Soper]

Yes.