July 2016

Remember back in March, when our Prime Minister and his wife Sophie visited the United States for their first State Dinner with President Obama and Michelle Obama? Yes, the one where our head of state and his wife looked like Hollywood superstars thanks to some impressive Canadian fashion designers. Well, it turns out fashion wasn’t the only thing being discussed.

 

In this meeting, President Obama and Prime Minister Trudeau reaffirmed the Canadian-US commitment to implement the next stages of an exit/entry control initiative between the two countries. Currently, Canada’s Canadian Border Services Agency (‘CBSA’) only tracks individuals who enter Canada. With these new rules in place, Canada would also be monitoring who leaves the country.

Exit Controls: When and Why?

The bill that will kick-start this new practise was tabled in Parliament this June, and will likely be implemented this fall. Bill C-21, also called An Act to amend the Customs Act, is part of a wider effort to strengthen border security and trade relations between the United States and Canada. Canada’s Beyond the Border Action Plan has existed since 2011. We have already seen parts of it realized through the new Electronic Travel Authorization requirements which will come into affect this September. I wrote about these changes in an earlier blog post.

            Security is cited as the biggest reason for implementing the new exit controls. If the legislation passes, Canada will be able to track individuals who depart to terrorist-producing countries and later return, previously unnoticed. Also, the Member of Parliament who introduced the bill, our Minister of Public Safety and Emergency Preparedness Ralph Goodale, has been quoted as saying, “it will fill a number of gaps in our security system, such as our ability to track Amber Alerts and deal with issues such as human trafficking”. Canada will also be able to track parents who ignore custodial orders and unlawfully take their children abroad, as was the case with Edyta Watkins.

Indeed, as proponents of the bill point out, Canada is the only country that does not track citizens in the group called the “Five Eyes”, which has integrated intelligence services. The other countries in this group are the US, United Kingdom, Australia and New Zealand, and they all keep records regarding when their citizens leave the country.

What Information Will CBSA Actually Collect?

If the legislation passes, the exit controls will focus on collecting exit-information in two scenarios:

1. By Land: When a Canadian or foreign national enters the US, their information collected by US customs officials will shared and turned into exit information for Canada, and vice-versa. Canada will have a database of basic passport information, as well as the exact dates and times of entry.
   
   

2. By Air: Information will be collected on all travellers departing on international flights. Through the recently launched Interactive Advance Passenger Information program, information is already being collected regarding those coming into Canada via international flights. Under the new regime, exit information will also be collected in a similar, but less complex way. Specifically, airline carriers will provide the Canadian government with the list of names contained on each flight’s passenger manifest. Allegedly, this information will not be shared with the United States.

    

Immigration Implications

            Naturally, these new rules will have wide-reaching implications for those coming and going in and out of our country. Here are just a few: 
 

• Fewer Headaches for Permanent Residents (“PR’s”)

      To receive and maintain permanent residency in Canada, PR’s must prove that they have been in Canada for a minimum of 2 out of every 5 years. They have to list exactly where they have been in in the last 5 years to the exact day, or face rejection.

I don’t know about you, but if someone asked me to list every time I have accompanied my son to the US for a basketball tournament since he was 11, I would be in over my head.

Some people are great at keeping records, and some people are not. For those who aren’t, an Access to Information and Privacy (‘ATIP’) Request would need to be sent to CBSA to get a traveller history report. This takes over 30 days. The fact that CBSA uses snail mail delays the process even further (as opposed to the practise at Immigration, Refugee, and Citizenship Canada of simply emailing ATIP results).

The new exit controls would eliminate the need for detailed residency charts. Since the government would already have all the physical presence information needed regarding PR’s, decisions could be made faster and with the use of less staff. PR Cards already have a special chip implanted, which will likely assist in this type of tracking. For an immigration lawyer like myself who spends hours going back and forth with clients getting travel dates right, using a system where a PR card number could be simply typed into a system would be a major time saver. This type of system already exists in the United States, where you can type your passport number into an online database and you can get your travel history.  Try it yourself!

• Inadmissibility & CBSA’s Expanded Powers

The new exit controls would also have a major impact on how individuals found inadmissible to Canada will be monitored. A foreign national can be found to be inadmissible for a number of reasons, including having a failed refugee claim, having overstayed a temporary stay, or having been found criminally inadmissible. Usually, persons found inadmissible are issued a removal order against them and in criminal cases, an arrest warrant as well. Currently, it is estimated approximately 44,000 people are in Canada are subject to removal orders.

Since the government doesn’t actually know when they’ve left the country, according to a recent Senate Report examining this topic, many files are left open indefinitely. According to the Report, the new exit controls will allow CBSA to close files where people have left, which will free up more time and resources to focus on tracking down high-risk individuals.

But it’s not all sunshine and rainbows…

The Canadian government is happy because it has more control. Administratively, we are happy because there may be less paperwork. But what are the negative implications of these new exit controls? Here are just a few:

• All Foreign Nationals Should Be Weary of Overstaying

  • Overstaying in Canada will now actually be known. Before, you could leave and wouldn’t get caught when you returned, if you didn’t disclose that you had previously overstayed.

  • This will apply to everyone. Whether you were found criminally inadmissible for terrorism, or just overstayed a short-term visa, the government will know.

  • Same goes for for PR residency requirements –more people will be getting ‘caught’ not meeting their 2 years of 5 required to be physically present in Canada. This also applies to those looking to demonstrate that they have been in Canada for the required time needed to obtain citizenship.
    
    

• Big Brother is Watching: Privacy Concerns

  • How much information on Canadians will be given to the United States? According to the parliamentary secretary of our Minister of Foreign Affairs, Deepak Obhrai “The United States will not end up with more information than is already accessible”. How do we know this for sure?

  • While just basic biographical information is being collected now, it is likely that it will turn into a biometric database. How long will this information be retained? Are we turning into a security state where civil liberties don’t matter as much as catching the terrorist? For more information on this see this article.

  • Will this information be shared with other government agencies? If so, there could be major tax consequences for those who travel to the US regularly and face being deemed American citizens for tax purposes.

  • Will Employment and Social Development Canada have access to the information? Those who are without jobs and working abroad while collecting Employment Insurance unlawfully will want to watch out for this.

     

• Implementation Issues

  • Will this be ridiculously expensive? Ex-Diplomat Colin Robertson, was quoted in a news article estimating that would cost the government over 1 billion dollars to implement the program.

  • Hacking problems – this system will be a target now. While this program apparently isn’t meant to be some sort of end-all security tracking system (as there are number of other powers already existing in Canada to track people), it will still be more information collected on us that could be leaked.
    
    

As a wise man once said, “with great power comes great responsibility”. My law clerk was under the impression that the government already collected information about when she was both leaving and entering Canada; perhaps you did as well. Soon enough, it looks like they will.  Only time will tell whether our government can manage this new power with responsibility.