September 28, 2020
Canada’s Borders Will Never Be the Same! Bill C-21 and the New Exit Information Regulations
In an upcoming edition of the Immigration Law Reporter and Immquest, we examine a new landscape of requirements for travellers now entering and exiting Canada. In this study, we will look at an area of expanding law that must be traversed more cautiously by representatives and applicants alike, keeping in mind that along with more stringent assessments by officers at ports of entry, there are grave concerns about the use and limits on the use of information. If 2020 has not given us enough to think, this somewhat quiet change in the law was introduced less than two years ago. Specifically, on 13 December 2018, Bill C-21, An Act to amend the Customs Act (“Bill C-21”), received Royal Assent as part of a plan to phase in the collection of exit information by the Canada Border Services Agency (“CBSA”) for all travellers leaving Canada. The amendments to the Customs Act introduced by Bill C-21 included a provision that allows officers to subject travellers to examination on exit, similar to examination upon entry to Canada. A related provision created an offence for those who do not meet their obligations during this examination by an officer.
Following the new amendments to the Customs Act, the Exit Information Regulations (“Exit Regulations”) came into force on 25 June 2019 to enable the collection of exit information for travellers departing Canada by land and exit data for those departing Canada by air. The introduction of Bill C-21 and the enabling Exit Regulations provide for Parliament’s further implementation of the Canada-United States Beyond the Border Action Plan (“BTB”). Upon examination, our conclusion is it would be prudent to proceed with considered pre-emptive action and advice to clients while the implementation and effects of the new provisions unfold, even during the pandemic. Although the legal jurisdiction to question and incarcerate travellers upon exit and to collect exit information from all travellers leaving Canada by air or via the Canada-US land border has the potential to heighten the administration and integrity of many Federal immigration programs, it equally raises privacy and fundamental rights concerns that may contribute to our ports of entries becoming even more complicated hotbeds of legal transactions.
As one example, the new provisions enable the CBSA to fulfill their mandate through the collection and sharing of “reliable exit information.” Such information is to be used by the CBSA in border management. This information can also be shared with other federal government agencies, to be used in the assessment of federal program requirements, such as residency requirements. In six new provisions, the amendments to the Customs Act provide for:
a. collection of exit data for any person leaving Canada;
b. obligation of such persons to answer questions by a CBSA officer;
c. corresponding offence provisions for those who do not meet their obligation; and
d. a 15-year retention period.
Section 92 provides that exit information under this provision may be collected from “any person who is leaving Canada or who has left Canada”. While it is not expressly indicated as an outcome of the Exit Regulations in the Regulatory Impact Statement (RIS), the interpretation of this provision, in conjunction with the Regulations, would provide legislative authority for the CBSA to collect exit information retrospectively for people who have departed Canada by land. This is, however, subject to Parliament’s intention, which may be found to vary from this interpretation and accordingly enforced by the judiciary. If this interpretation were to be acted upon by the CBSA, the United States’ entry information of the time prior to the enactment of Bill C-21 and the Exit Regulations may be collected and shared with other Federal government departments.
This is just a small sample of the many legislative changes reflected in these new provisions. What is certain is that an explosive data set of new information is now being compiled and available on a go-forward fifteen-year retention period with an equally explosive set of jurisdictional enhancements at ports of entries, on trains and in the air. Insert here whatever cliché you prefer as these changes are significant and factor in emerging technologies like artificial intelligence, and we may well be on the ground floor of a new paradigm for border crossing, privacy and information law, as well as the resulting rights and obligations of every single person that exits and enters our country.
As always, thank you for reading and stay safe.