Updating the Secure Border Action Plan
BY RON MORAN
© 2009 FrontLine Security (Vol 4, No 2)

On June 22nd, the Customs and Immigration Union (formerly known as CEUDA) testified before the Senate Committee on National Security and Defense (SCONSAD) in Ottawa. As anyone familiar with border security will appreciate, these are two of the most active and influential groups in this important security area.


A CBSA officer and a traveller at an airport primary inspection line.

FrontLine Security presents edited extracts from the CIU Brief to the Committee. Readers will find these observations and insights from the front lines both enlightening... and somewhat worrisome.

Progress on the seven issues identified in the original Plan has been mixed. Additionally, the manner in which action is being taken on some matters bears scrutiny to ensure the intended results are achieved in the most cost effective manner. The CIU continues consultation with CBSA management on these issues and, is pleased to report, directly with the Minister as well. CIU remains willing to assist in achieving the goals of the Plan to ensure enhanced border and domestic security for Canadians.

The original Brief, presented to Government in November 2006, ­entitled ‘Updating the Border Security Action Plan,’ is a detailed document prepared by the Union.

Based on a member survey (with 100% response from all land Ports of Entry (POE)), it covered these seven areas: ports of entry connectivity; look-out system; port runners; the need for a border patrol; pre-border clearance; the arming initiative; and ending work-alone situations. The more recent CIU Brief reported the progress, or lack thereof, in these areas, and ­identified four new areas for the Committee’s consideration.

Connectivity
As noted earlier, the SBAP was provided to the Minister’s Office in November 2006, and it is fair to say that it and the work of SCONSAD on connectivity has prompted a reaction. Following a recent field operations survey, the National President confirmed that there are no longer any land POE reporting a lack of connectivity. Based on initial responses, CIU can report some infrequent instances of delayed log on and signal strength which must be corrected in some parts of the country, including Northern Ontario and Saskatchewan.

It is our intention to ensure that CBSA builds on this enhanced access capacity to upgrade the nature and quality of information available to front-line Customs and Immigration Officers. Officers report needless lack of required full access to the database at primary post coupled with unjustifiable policy-based, and not technology driven, restrictions on Officer access to required information. These require correction, particularly since U.S. counterparts have full database interface capacity every time they run a name; interestingly, state-side verifications include full access to ­Canadian data such as CPIC.

Lookout
The CIU has identified deficiencies in the CBSA ‘lookout’ system for a decade. These deficiencies jeopardize officer safety since potentially dangerous individuals are not properly identified. Concurrently, since CBSA restricts some information, persons who should be identified as inadmissible to Canada, including on grounds that ­represent a danger to the Canadian public, are not adequately identified and are allowed to enter. Canadian taxpayers then bear the cost of criminal investigation, ­prosecution, incarceration and removal of persons that a proper and modern lookout system could preclude from entering Canada in the first place.

The SBAP recommended the immediate deployment of a lookout system using name based information and modern face recognition biometrics to apply lawful authority at a POE to detect persons who are inadmissible to Canada, especially on grounds of security and criminality, and who have been previously removed from Canada. Both SCONSAD and CIU have raised this public safety deficiency…(This deficiency has also) attracted negative comment from domestic law enforcement who have to deal with its failures, as well as from the Auditor General and the media.

In November 2006, CIU engaged in discussions with CBSA on revisions to the policy which to date have, unfortunately, (proved) “unproductive”…

At the root of the disagreement is CBSA’s continuing insistence on substituting their judgment based on subjective inclusion of an imminent arrival criteria, rather than using the objective criteria( such as criminal deportees) of authorities like RCMP, Interpol, FBI… and others in determination of danger. Whether this is due to institutional ego, lack of enforcement expertise in senior management, or both, the result has been a needless and unjustifiable public safety deficiency.


Traveller uses iris recognition camera.

Following several especially egregious cases underlining this CBSA lookout deficiency, the CIU communicated directly with the Minister’s office. [We] are pleased to report that… despite initial CBSA claims of impotence, following inquiries of systemic flaws, a response appears to have been undertaken which ultimately may lead to tangible improvements.

Specifically, in 2008, the Public Safety Technical Program (PSTP) launched a series of requests for proposals to deal with deployment of face recognition biometric identification systems at POE as recommended in 2006 . In December 2008, CBSA, under new senior management , filed a proposal to lead such a study in partnership with the RCMP… It is recommended that the Committee pursue this issue with CBSA to confirm the contemplated content of the database, its deployment locations and whether this is intended as part of its ongoing video analytics activities.

CIU recommendations regarding the lookout system go beyond deploying face recognition biometric technology. It is our clear and continuing position that the interface among relevant databases must be improved and that analytical information linkage and foreign language name recognition software be included. Since 2008 CBSA has access to this technology through inter- departmental arrangements.

Port Runners
The fact that persons are failing to stop at ports of entry (known as “port runners”) was included in the SBAP as a result of the Northgate Report detailing the frequency of this activity, and the fact that CBSA refused to permit pursuit. This revelation was ­significantly exacerbated when CBSA ­management under-reported its volume and misdescribed the extent of agreements with contiguous police agencies in its evidence to SCONSAD.

Some modifications are underway that fall within these recommendations especially with regard to camera installation and barriers. We would urge the Committee to seek specific details from CBSA as to progress in this area including plans, allocations and timelines. Officers across Canada have reported cameras pointed in the wrong directions and with patently insufficient resolution for appropriate evidentiary purposes. There has been installation of gates at some limited remote locations.

The subject of pursuing port runners and having a border patrol was aggravated in 2007 when the former CBSA President told the Commons Security Committee that no lawful pursuit and apprehension authority existed for CBSA officers under the Customs Act. CIU also appeared at Committee and subsequently provided the Committee, and CBSA and the Minister with material that corrected the record. This off port enforcement authority issue appears to linger within CBSA in response to which CIU prepared a briefing note this year… Though the wording of the current Act is not optimal, justifying inaction on pursuing port runners or participating in a border patrol is without merit.

Border Patrol
CIU is concerned that CBSA’s historical resistance to enforcement actions combined with the RCMP’s demonstrated human resource shortage for national enforcement activities could create a politically acceptable model that would be operationally inadequate. Our information, for example, indicates that the RCMP has actually closed eight detachments in Quebec near the U.S. border and that the national policing section has returned tens of millions of dollars originally allocated to it because of lack of capacity over the past two years.

Having finally taken steps to ensure that Border Services Officers are better trained and equipped and increased in number, the Government will, hopefully, follow through on those investments by ensuring CBSA plays a prominent role in border patrol enhancement. With the release of the May 26, 2009 Shiprider Agreement, deliberately excluding CBSA, this will necessitate an amendment to the agreement if joint marine cross border action is to be provided on a scale agreed to with the U.S.


Ion scanner, used to detect trace amounts of narcotics and explosives.

As noted in the original SBAP, the domestic benefits to Canada go beyond common security with the U.S. and extend to the interdiction of illegal entry of guns, drugs and people into Canada. Further, this modest investment for a mobile joint force capacity contrasts very favourably with previous estimates supplied by CBSA for fixed interdiction, which we understand to have been in the $3-4B range. As has been the case with many scenarios, this concept put forward by the CIU will do an exponentially better job at a fraction of the price.

Arming
The Secure Border Action Plan of 2006 was produced after the Government announced the initiative, but before actual training of officers. The CIU was, understandably, highly skeptical of the good faith commitment of both the CBSA and the RCMP, as they had been the two bodies most opposed to its occurring… The CIU recommended a dramatically lower cost with shorter timelines. Although a reduced cost estimate resulted, CIU’s recommendations for how the arming initiative should be accomplished were largely ignored and, under RCMP and CBSA ‘leadership’ costs and success rates have raised legitimate questions.

These submissions detail a spectrum of issues CIU has raised with respect to the initiative including CBSA’s continuing approach of advising of decisions after the fact rather than prior consultation. The CIU has monitored the training sessions closely, including interviewing officers who have completed the training (successfully and unsuccessfully). In fairness, after some denial and delay, positive changes to the methodology of training have occurred, especially since the arrival of new senior management in June 2008.

The original commitment was to complete the arming of 4,800 officers in ten years which included existing and new employees. To date approximately 1200 officers have been trained, armed and deployed over two years. The delays we predicted because of the exclusivity of sites and training have occurred. These factors have also contributed to higher costs than we believe should be the case. As the Committee will appreciate, there is a view that the difficulties and excessive costs to date are a direct result of assigning responsibility for the arming initiative to organizations institutionally opposed to its success…

The arming initiative is now entrenched and improving. CIU remains wholly committed to its success concurrent with the workplace accommodation of officers who either choose not to participate or who, having been given a fair opportunity, have failed to qualify. We suspect that completing this initiative will continue to pose challenges, but we are unwavering in our support of this activity that will enhance officer and public safety.

Ending ‘Work-Alone’
Both CIU and SCONSAD have raised this issue repeatedly over the years. The Government of Canada followed up in 2006 with a welcome commitment to accept the CIU and SCONSAD recommendations and direct the end of work-alone situations. During highly effective questioning before SCONSAD in June 2006, then CBSA President confirmed that Budget 2006 had provided the funding for the additional 400 officers required, and that the hiring process would be completed in three years.


CBSA classroom training.

Three years after that statement was made, CIU is aware of only approximately 100 new officers being hired to end work-alones. Unfortunately, there seems to be a slow down in recruitment by CBSA. CIU voiced concerns in 2006 about CBSA discharging its instructions in this regard.

Some modifications to work-alone POE sites is required, but it is hard to imagine why this should have interfered with the direction given to and an undertaking from CBSA to hire the requisite officers and end this most dangerous practice. Of the 119 land Ports of Entry, our information shows that 56 sites now have been upgraded, another 17 are in-process, and the target set for the end of FY 09-10 is 92. CIU will resurvey its members on this issue and we urge the Committee to raise it with both the Minister and CBSA senior management.

Pre-Border Clearance
Despite what appeared to be a basis for progress, some two and a half years later the issue, to our knowledge, remains stalled. We are advised that the primary reasons for this is the U.S. insistence on an ability for their officials to arrest persons in defined ­circumstances and to have the discretion to fingerprint persons who, for whatever reason, decide not to seek entry into the United States. These persons, known as ‘turnarounds’ are very few in number but are acknowledged by both Canadian and U.S. officials as a potential security concern in that their actions may, in fact, be part of ­border surveillance by persons or groups posing criminal or security risks.

We have been advised that the rationale for the U.S. seeking to fingerprint is to match to a specific database of latent fingerprints the relevance of which is acknowledged by Canadian authorities. This renders the U.S. request to fingerprint neither arbitrary nor capricious but rather for a specific legitimate purpose.

The Supreme Court of Canada has specifically recognized the unique nature of points of entry to Canada as justifying a wide array of personal intrusions including search, frisking, clothing removal, etc. based on the importance of the state controlling activities at the border. The Court specifically noted that there is a lower expectation of privacy at any border crossing.

Section 13(2) of the Canada Border Services Agency Act, section 105 of the Customs Act, and section 7 of the Immigration and Refugee Protection Act all contemplate some kind of international agreement authority for the Minister so as to carry out the Agency mandate or enforce the Acts in question. Further, cross-border enforcement authority, in defined circumstances, has already occurred in the Shiprider program.

The U.S. authorities apparently also wish to continue their discretionary action of checking laptops or electronic device of persons seeking entry to check for data relevant to admissibility. This is an action already undertaken in the U.S. and search of persons or goods in their possession prior to departure is authorized in Part VI of the Customs Act in broad circumstances.

New Issues

Staffing
Without question, the current border security priority of government has created a highly challenging environment for the CBSA in terms of its ability to manage the multiple personnel-related projects it has been assigned.

Though new funding will be required for initiatives like a border patrol, our ­concern today is whether funding already allocated to the Agency is being properly used to achieve the staffing level enhancements for which it was intended. Accordingly, we urge the Committee to explore the program areas listed above with regard to the following performance criteria:

  • what was the original hiring goal and timeline for accomplishment?
  • what was the funding allocated for that purpose?
  • what is the current status of hiring to meet the goals on a year-to-year basis?
  • what is the explanation for any shortfall in hirings?
  • are other program initiatives, such as phasing out students, interfering with operational deployments?

Based on information available to CIU, we would also urge the Committee to examine staffing allocations within CBSA including where new Agency hires have been assigned on a yearly basis since 2001 when personnel was increased. It is our sense that, contrary to the intention of government, a disproportionate percentage of new personnel have been provided to non-operational responsibilities including within national headquarters.

We are also concerned that the new hires by CBSA are inadequate to both fill the expanded programs and replace the numbers leaving the agency. We are unclear, for example, as to why the Rigaud Training Facility has not been more significantly expanded to accommodate additional hires and, as an example, to expand the availability of firearms training facilities which would accelerate that program.

The 2008 AG Report (42,000 “missing” removals/deportees)
On May 6, 2008, the Auditor General (AG) released a series of reports, one of which (Chapter 7) dealt with a comparison in detention and removal actions from 2003 to 2007 undertaken with respect to inadmissible persons in Canada.

The Report offers some comparative performance analysis and suggests improvements. CBSA “agrees” with the observations and criticisms, which in no way means corrective action is underway or will be taken in the absence of Ministerial direction.

The CEUDA review of the AG’s ­Report focuses on the entry, tracking, and removal of inadmissible persons rather than the administrative arrangements for detaining such persons except where it relates to the decision to release, and generally lose track, of the person.

Seaport Security Issues
Two Bills, S-2 and C-26, currently before Parliament, directly impact CBSA enforcement activities at marine ports of entry.

The former deals with advanced passenger and cargo screening as well as expansion of powers in Customs Controlled areas, while the latter deals with clarifying authority for CBSA to check cargo containers on export for stolen automobiles. In both instances, the CIU wishes to emphasize that prior to enacting enforcement related matters permitted by regulation, it should be made clear that CBSA is expected to directly consult with onsite law enforcement and intelligence agencies so as to reach a consensus, if possible.

Further, these new powers, while welcome, must be supported by appropriate legislative authority that permits full ­information sharing with law enforcement, intelligence and private sector parties so as to give effect to the intended purposes of these enactments.

The experience of our membership in regard to the artificial constraints on information sharing created by CBSA management was specifically detailed in the 2006 Northgate Report. This resistance to enforcement action was repeated in the initiatives launched by the Insurance Bureau of Canada and the RCMP in the same year with respect to checking cargo containers to prevent the export of stolen automobiles from Canadian seaports. These new Bills are opportunities to increase POE security and enforcement, but they will be functionally neutered if the supporting measures are not in place. Success should not be measured in the simple passage of the Bills.

Corporate CanPass Air Program
CBSA runs various low risk traveler identification programs, collectively known as the CanPass program. The concept is based on the premise that certain travelers who are pre-screened by CBSA (or linked law enforcement agencies), and determined to be low risk, can be exempted from the ­normal reporting requirements under the Customs Act.

This results in either expedited border clearance or, in the case of air and marine travelers who report their pending arrival to a special Telephone Reporting Center, entry to Canada at unmanned designated locations. Officers can be deployed to such remote airports or marinas for inspection following arrival or the traveler is simply ‘trusted’ based on their pre-determined low risk status.

The cornerstone to this system is obviously having a public agency make the determination in advance of entry that ­the individual in question seeking the privilege is not a security/criminality risk to Canada.

Clearly, this program was never intended as a means for anyone willing to pay the fees to avoid the legitimate scrutiny mandated by the Customs Act and the ­public security of our country. Unfortunately, this appears to be exactly what has developed.

Several of our members assigned to the reporting centers (there are only four for the entire country: Victoria, Hamilton, Windsor and Landsdowne) have identified the Corporate CanPass Program operating so that a person, or company, that has received an authorization to enter via a corporate aircraft without reporting can, in effect, sponsor up to four persons per flight for entry without risk assessment pre-clearance or reporting. Literally, CBSA has downloaded the qualification of pre-entry security risk assessment to avoid inspection to a private individual or corporation.

It appears, however, that a highly restricted, reliable, low-risk determination program has evolved into an unreliable ­system where authorities are unable to properly protect officers or the Canadian public they serve.

The only rationale for the current ­unrestricted Corporate CANPASS system would seem to be to permit people that are willing to pay to avoid scrutiny on entering Canada.

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Ron Moran is the National President of the Customs and Immigration Union (CIU).

The full original text of the Secure Border Action Plan and the newest CIU Brief can be accessed on the CIU website www.ceuda.psac.com
© FrontLine Security 2009

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