Ministerial Direction to the CBSA on Surveillance and Confidential Human Sources

The Government and the people of Canada expect a high level of performance by the Canada Border Services Agency ("CBSA" or "the Agency") in discharging its responsibilities under CBSA program legislation. It is also expected that the CBSA will perform its mandate in accordance with the rule of law and respect for the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms.

Accountability is fundamental to our system of government, and in maintaining the confidence of Canadians. Ministers of the Crown are responsible for exercise of their lawfully assigned powers and the conduct of affairs within their portfolio, and are accountable to Parliament and to Canadians for these responsibilities. The system of accountability for the CBSA is multipronged. Central to the system is accountability to myself, as the Minister responsible for the Agency. The CBSA is also accountable for its national security activities to external review bodies, such as the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians. Finally, the CBSA is accountable to Canadians through the government's commitment to transparency.

Pursuant to subsection 8(1) of the CBSA Act and s. 5 of the Department of Public Safety and Emergency Preparedness Act, the following Ministerial Direction provides guidance to the President of the CBSA regarding surveillance and confidential human sources (CHS). It will serve to enhance Ministerial accountability of the CBSA in the administration and enforcement of its program legislation.

General

The authority for the CBSA to conduct surveillance (Annex A) and use confidential human sources (Annex B) is derived from the Agency's mandate under section 5 of the CBSA Act and the duty of CBSA officers to administer and enforce program legislation. This authority supports the use of surveillance and confidential human sources as investigative techniques in criminal investigations, in inland enforcement investigations, and as an intelligence tool to enable enforcement of CBSA program legislation.

Principles

As the CBSA fulfils its mandate, I expect the following principles shall guide and inform the CBSA's surveillance and CHS activities.

The CBSA shall ensure:

Accountability

As the Minister, I am accountable to Parliament and to all Canadians for CBSA's activities and must be kept well informed. As such, the President of the CBSA shall inform me as soon as they become aware that a CBSA surveillance or CHS activity, or an action of a CHS may have a significant adverse impact, such as:

I may, at any time, on my initiative, or where a matter of significant adverse impact has been brought to my attention, request a review of any issue related to surveillance and CHS.

Annual Reporting to the Minister

The President of the CBSA shall report annually to me on the CBSA's surveillance and CHS activities. The report should identify and describe any instances of non-compliance with this Ministerial Direction or relevant policies or procedures regarding these activities. Further requirements of the annual report are outlined in Annex A and B.

Annex A: Surveillance

Surveillance is a valuable investigative technique for the CBSA to obtain information for the purpose of furthering the administration and enforcement of its program legislation.

Surveillance is defined as the covert observation of persons, vehicles, places or other objects to obtain information about individuals or organizations.

In addition to the principles established in this direction, the CBSA shall conduct its surveillance activities in accordance with the following:

Canadian Fundamental Institutions

The CBSA shall carefully assess the potential public sensitivities when considering surveillance which may impact or appear to have an impact on Canadian Fundamental Institutions (CFIs). Examples include but are not limited to institutions in the sectors of academia, politics, religion, the media, as well as hospitals, women's shelters and labour organizations.

The President, Executive Vice-President or Vice-President of Intelligence and Enforcement shall approve all surveillance activities in a CFI.

Accountability

Annual Reporting to the Minister

The President of the CBSA's classified annual report on surveillance activities shall include information relating to the:

Annex B: Confidential Human Sources

The CBSA recruits, develops and handles persons as CHS as a means of obtaining valuable information to support the administration and enforcement of its program legislation.

A CHS is a person who:

In addition to the principles established in this direction, the CBSA shall manage CHS according to the following:

Accountability

To ensure compliance with the above direction, the CBSA shall regularly review active CHS relationships to assess their continuing suitability and relevance to the duties and functions of the CBSA.

Special Approvals

A potential CHS, who falls into any of the following special approvals categories shall not be accepted as a CHS unless an enhanced risk assessment is conducted and a special approval is granted by the President, Executive Vice-President, or the Vice-President of Intelligence and Enforcement:

Annual Reporting to the Minister

The President of the CBSA's classified annual report on CHS shall include information relating to:

Annex C: Risk Management Framework

Legal risk is to be assessed in accordance with the Department of Justice risk assessment criteria. Policy and standard operating procedures are drafted to guide officers and their managers within the confines of risk as outlined by the Department of Justice.

Operational security risk is to be assessed in terms of the operating environment and operational activities, including the risk of death or bodily harm to officers or the public. Policy, standard operating procedures and forms help officers and their managers identify risks and where appropriate either mitigate risk or discontinue the activity.

Reputational risk is to be assessed, and includes the potential for public controversy, as well as the risk of discrediting the Agency or the Government of Canada.

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