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.
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.
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:
- surveillance and confidential human source activities comply with the laws of Canada, including the Charter of Rights and Freedoms and the Privacy Act, and will be consistent with the Agency's internal policy framework;
- officers only engage in activities that have been authorized or approved by the delegated authority under policy except where allowances are made for exceptional circumstances;
- officers will adhere to the risk management framework (Annex C) provided in policy and through standard operating procedures to guide decision making. The greater the risk associated with the activity, the higher the authority required for approval; and
- lawfully and consistently handle personal information when collecting, storing, sharing and disclosing information under the applicable legislation, such as the Privacy Act and consistent with information management directives of the Government of Canada.
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:
- giving rise to public controversy;
- impacting the safety of an individual;
- affecting domestic interdepartmental or intergovernmental relations;
- affecting Canadian relations with any country or international organization of states; and/or
- contravening any of the guidelines set out in this direction and/or any CBSA policy associated with surveillance and CHS.
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:
- surveillance activities may only be conducted without a judicially authorized warrant when the target has no reasonable expectation of privacy. When the target is deemed to have a reasonable expectation of privacy, the surveillance activity must be terminated, unless the CBSA obtains a judicially authorized warrant;
- The CBSA shall ensure it complies with the duty of full, fair and frank disclosure, and the duty of candour, in its applications for judicial authorization, which are essential to the integrity of the judicial authorization process; and
- Surveillance activities are to be conducted only within Canada.
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.
Annual Reporting to the Minister
The President of the CBSA's classified annual report on surveillance activities shall include information relating to the:
- number of surveillance operational plans submitted;
- number of final reports submitted;
- hours of surveillance for CBSA led operations;
- cost of surveillance;
- intelligence and enforcement priorities supported by surveillance;
- immediate enforcement results submitted on the final reports; and
- activities conducted in or on the perimeter of a CFI, and their results.
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:
- provides information of value, related to the mandate of the CBSA, that cannot be easily obtained through other sources;
- indicates to a CBSA employee that he/she wishes his/her identity to be treated confidentially; and
- after a positive CBSA evaluation, receives an assurance of confidentiality from a trained CHS Officer and is registered within the CBSA as a CHS.
In addition to the principles established in this direction, the CBSA shall manage CHS according to the following:
- the use of CHS shall be reasonable and support the administration and enforcement of its program legislation;
- consideration of a person as a CHS shall be grounded in a risk assessment which balances the benefits of the information the person can provide against the risks posed by allowing the person to become a CHS;
- CBSA officials shall brief CHS on acceptable conduct and will not knowingly use agents or instruct a person to act as an agent. The information provided by CHS shall not be acquired through illegal means;
- CHS will be managed so as to protect their identity and personal safety and to ensure program integrity;
- CHS will be managed ethically and fairly. The CBSA will ensure that an informal dispute resolution mechanism is in place to address CHS complaints;
- CBSA officers will not recruit or handle a CHS outside of Canada; and
- the CBSA will not recruit, identify or use the following persons as a CHS:
- persons under 18 years of age;
- persons who have outstanding warrants for indictable offences;
- persons believed to be engaged in serious criminal activity or any other illegal activity which could cause physical harm to other persons;
- persons who wish to confidentially provide information that they are likely to be professionally, legally or ethically required to report (e.g. health care professional, law enforcement officers);
- CBSA or Immigration, Refugees and Citizenship Canada (IRCC) employees or persons found to be current employees of other foreign or domestic law enforcement or intelligence agencies;
- Other federal, provincial or municipal government employees if they want to provide, or have provided information to which they are privy in the course of their duties; or
- A close family member or close acquaintance of a CBSA or IRCC employee.
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.
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:
- a member of a CFI;
- a former employee of a foreign law enforcement or intelligence organization;
- an informant or agent for another Canadian department or agency;
- a person providing information related to sections 34, 35 and 37 of the Immigration and Refugee Protection Act;
- a person who is without permanent resident status; who has a pending application for status; or who is involved in litigation related to status including persons held in immigration detention;
- a person who is currently on parole or probation;
- a person who is currently serving a penal term; or
- a person who is assessed to have potentially high-value information, but a higher than normally accepted level of risk.
Annual Reporting to the Minister
The President of the CBSA's classified annual report on CHS shall include information relating to:
- number of active CHS;
- number of active handlers;
- number of source debriefing reports;
- intelligence and enforcement priorities supported by CHS information;
- "special approvals", such as persons who may impact or appear to impact on the integral role and functions of a CFI;
- any instance where the CBSA becomes aware that a CHS has acquired information through illegal means, the CBSA's decision regarding the CHS' continuing suitability and any steps taken by the CBSA as a result; and
- awards and expenditures issued to CHS and the value of the information provided by CHS.
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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