According to evidence given by CBSA President Stephen Rigby before the House Public Safety Committee on February 11, 2009, CBSA, RCMP and Canadian Coast Guard are reviewing options to recommend to Government in order to fulfill its commitment to create a joint force, mobile border patrol. In the past, previous CBSA leadership has expressed inaccurate assessments of the lawful authority of CBSA to do enforcement work away from a designated POE.

 This occurred specifically on February 1, 2007, when in response to a question, M. Jolicoeur told the same Committee,

 “In Canada at the moment the responsibility outside the specific location of Port of Entry is with the RCMP. We don't have the mandate or the authority to move away from our location for that purpose.”

 CIU (then as CEUDA) corrected that information in its evidence before the Committee and in writing to the Chair when it noted,

 “Section 11 of the Customs Act creates the legal obligation for all persons seeking entry to Canada to stop and present themselves for inspection. Where a person fails to do that, section 99.1 of the Act permits Officers to “… stop that person within a reasonable time after the person has entered Canada.” Section 160 of the Act makes failing to stop as required pursuant to s. 11 an indictable offence. “

Ironically, the RCMP articulated the issue of CBSA’s lawful authority away from a designated POE when its representative gave evidence before the Senate Committee on National Security and Defence. On October 2, 2006 Superintendent Joe Oliver confirmed CBSA’s lawful authority to deal with persons failing to report but described its inaction as,

“It is a Customs violation. There is a failure to report inward, so CBSA would have jurisdiction. However, it becomes an issue such that the CBSA currently does not have pursuit-type patrol vehicles.

People who do run through the Ports of Entry and fail to report could still be issued penalties. CBSA investigates those types of infractions. It is an issue of capacity and the ability to interdict someone.”

Pursuant to delegations, designations and appointments currently in effect, CBSA Border Services Officers have authority to enforce the provisions of both the Customs Act and the Immigration and Refugee Protection. Both statutes create a positive obligation on persons seeking entry to report at a specified location for inspection before doing so and both constitute failing to do so as an indictable offence. Both Acts also authorize enforcement action under the Act against persons who have committed such offences which the CBSA Act authorizes the Agency and its employees to enforce.

 Section 99.1 of the Customs Act specifically references enforcement action against persons who have failed to report and indeed this is further supported in s. 163.5 regarding special ‘officer’ powers. Section 99.1 speaks to enforcement action ‘in a reasonable time after the person has (illegally) entered Canada’ where an officer believes non compliance has occurred. Clearly, the ‘reasonableness’ of the time period is linked to the knowledge of the officer of the fact of entry which, obviously, supports the authority of determining whether entry, including illegal entry, has occurred or not. Thus, a patrolling or response capacity to permit lawful enforcement is authorized under the Act. 

 It should also be noted that s. 104 of the Customs Act permits third party assistance in enforcement of the Act.

 Inasmuch as CBSA officers have participated in marine patrols with other enforcement agencies in the past pursuant to s. 99 of the Act, an assertion that somehow lawful authority to conduct patrols or be part of an intelligence based response interdiction group is clearly without foundation.  

 Similarly, s. 4 of the IRPA directs authority for enforcement (and arrest) of the Act to The Minister of Public Safety and CBSA. This is reinforced via the s.18 obligation to report before entry and s.138 authorization to enforce the Act. It should also be noted that as a result of a change made with via s. 44 of the IRPA, reporting of inadmissibility (non compliance with the Act by illegal entry) is confined to an officer so designated for that purpose which no longer automatically includes all peace officers. The presence of officers appropriately designated under the IRPA is clearly necessary for an effective interdiction and enforcement capacity.

 Finally, s. 7©  of the RCMP Act contemplates temporary appointments which are a further, although unnecessary, vehicle for CBSA officers to participate in a joint force, mobile border patrol and interdiction unit.

 This Note is provided with a summary of relevant legislative provisions to assist CBSA in discharging the policy directive provided to it by the Prime Minister.