Canada Border Services Agency Act

An Act to establish the Canada Border Services Agency Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title This Act may be cited as the Canada Border Services Agency Act. Definitions The following definitions apply in this Act. Agency means the Canada Border Services Agency established under subsection 3(1). (Agence) Minister means the Minister of Public Safety and Emergency Preparedness. (ministre) President means the President of the Agency appointed under subsection 7(1). (président) program legislation means any other Act of Parliament or any instrument made under it, or any part of such an Act or instrument, that the Governor in Council or Parliament authorizes the Minister, the Agency, the President or an employee of the Agency to administer and enforce, including the Excise Act, the Special Import Measures Act, the Customs Act, the Customs Tariff, the Immigration and Refugee Protection Act, the Excise Act, 2001 and the Select Luxury Items Tax Act; that the Governor in Council or Parliament authorizes the Minister, the Agency, the President or an employee of the Agency to enforce, including the Agriculture and Agri-Food Administrative Monetary Penalties Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act; under which the Minister or another minister authorizes the Agency, the President or an employee of the Agency to administer a program or carry out an activity; or under which duties or taxes collected and paid pursuant to the Customs Act are imposed. (législation frontalière) Agency established The Canada Border Services Agency is established as a body corporate. Agent of Her Majesty The Agency is for all purposes an agent of Her Majesty in right of Canada. Head office The head office of the Agency is to be in the National Capital Region described in the schedule to the National Capital Act. Mandate of Agency The Agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation, by supporting the administration or enforcement, or both, as the case may be, of the program legislation; implementing agreements between the Government of Canada or the Agency and a foreign state or a public body performing a function of government in a foreign state to carry out an activity, provide a service or administer a tax or program; implementing agreements between the Government of Canada or the Agency and the government of a province or other public body performing a function of the Government in Canada to carry out an activity, provide a service or administer a tax or program; implementing agreements or arrangements between the Agency and departments or agencies of the Government of Canada to carry out an activity, provide a service or administer a program; and providing cooperation and support, including advice and information, to other departments and agencies of the Government of Canada to assist them in developing, evaluating and implementing policies and decisions in relation to program legislation for which they have responsibility. Support The Agency may provide support, through the provision of services, to departments and agencies for which the Minister is responsible, in accordance with agreements or arrangements entered into with those departments and agencies. Minister responsible The Minister is responsible for the Agency. Delegation by Minister The Minister may delegate to any person any power, duty or function conferred on the Minister under this Act or under the program legislation. Exception Subsection (2) does not apply if an Act of Parliament other than this Act authorizes the Minister to delegate the power, duty or function to any person or authorizes any person to exercise or perform it. Limitation Subsection (2) does not apply in respect of a power to make regulations. Appointment The Governor in Council shall appoint a President of the Agency to hold office during pleasure for a term of not more than five years, which term may be renewed for one or more further terms. Executive Vice-president The Governor in Council may appoint an Executive Vice-president of the Agency to hold office during pleasure for a term of not more than five years, which term may be renewed for one or more further terms. Role of President The President, under the direction of the Minister, has the control and management of the Agency and all matters connected with it. Rank of deputy head The President has the rank and all the powers of a deputy head of a department. Executive Vice-president’s powers The Executive Vice-president shall exercise the powers and perform the duties and functions that the President may assign and shall act as President if that office is vacant or if the President is absent or incapacitated. Delegation by President The President may delegate to any person any power, duty or function that the President is authorized to exercise or perform under this Act or any other enactment. Designation of officers The President may designate any person, or person within a class of persons, as an officer as defined in subsection 2(1) of the Customs Act to exercise any powers or perform any duties and functions of an officer under that Act that the President may specify; or as an inspector or a veterinary inspector or other officer for the enforcement of any Act or instrument made under it, or any part of an Act or instrument, that the Governor in Council or Parliament authorizes the Minister, the Agency, the President or an employee of the Agency to enforce, including the Agriculture and Agri-Food Administrative Monetary Penalties Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act. Designation power The President may exercise any power that the Minister has to designate officers under subsection 6(1) of the Immigration and Refugee Protection Act. Remuneration The President and the Executive Vice-president shall be paid the remuneration that is fixed by the Governor in Council. Expenses The President and the Executive Vice-president are entitled to be paid reasonable travel and living expenses incurred by them in the course of performing their duties while absent from their ordinary place of work. Deemed employment The President and the Executive Vice-president are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act and to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act. Officers and employees Officers and employees necessary for the proper conduct of the work of the Agency shall be appointed in accordance with the Public Service Employment Act. Exercise of powers conferred on Minister Subject to any direction given by the Minister, the Agency may exercise the powers, and shall perform the duties and functions, that relate to the program legislation and that are conferred on, or delegated, assigned or transferred to, the Minister under any Act or regulation. An officer or employee of the Agency may exercise any power or perform any duty or function referred to in subsection (1) if the officer or employee is appointed to serve in the Agency in a capacity appropriate to the exercise of the power or the performance of the duty or function, and, in so doing, shall comply with any general or special direction given by the Minister. Subsection (1) does not include any power, duty or function of the Minister under this Act; or a power to make regulations. Non-application of Statutory Instruments Act A direction given by the Minister under subsection (1) or (2) is not a statutory instrument for the purposes of the Statutory Instruments Act. Agreements Subject to sections 38 and 38.1 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Agency may, with the approval of the Governor in Council, on the recommendation of the Minister and the Minister of Foreign Affairs, enter into an agreement with a foreign state or an international organization, for the purposes of carrying out the mandate of the Agency. Arrangements and agreements The Agency may, for the purposes of carrying out its mandate, enter into an arrangement with a foreign state or an international organization; or enter into an agreement or arrangement with the government of a province, a department or agency of the Government of Canada or any person or organization. Agreements to administer a tax The Agency may enter into or amend an agreement with a provincial or territorial government to administer a tax or other fiscal measure if the agreement is in accordance with guidelines relating to agreements of that kind established jointly by the Minister and the Minister of Finance. Application of the Federal-Provincial Fiscal Arrangements Act Parts III and III.1 of the Federal-Provincial Fiscal Arrangements Act do not apply to an agreement entered into or amended under subsection (1). Appropriation Acts An appropriation Act may provide that the balance of money appropriated by Parliament for the use of the Agency that remains unexpended at the end of the fiscal year, after the adjustments referred to in section 37 of the Financial Administration Act are made, lapses at the end of the following fiscal year. Annual report The Minister shall, as soon as possible after the end of each fiscal year but no later than the end of the calendar year in which that fiscal year ends, cause to be laid before each House of Parliament a report of the operations and performance of the Agency for that fiscal year. Reports required by Treasury Board The obligation imposed by subsection (1) may be satisfied by the tabling of any reports of the operations and performance of the Agency required by the Treasury Board that contain the information required by that subsection. The following definitions apply in sections 17 to 19 and 21 to 28. former agency means the portion of the federal public administration known as the Canada Border Services Agency. (ancienne agence) new agency means the Canada Border Services Agency established under subsection 3(1). (nouvelle agence) order P.C. 2003-2064 means Order in Council P.C. 2003-2064 of December 12, 2003, registered as SI/2003-216. (décret C.P. 2003-2064) President and Executive Vice-president The persons occupying the positions of President and Executive Vice-president of the former agency on the day on which this section comes into force become the President and Executive Vice-president of the new agency on that day and are deemed to have been appointed under section 7. Positions Nothing in this Act is to be construed as affecting the status of an employee who, immediately before the coming into force of this section, occupied a position in the former agency, except that the employee shall, on the coming into force of this section, occupy his or her position in the new agency under the direction of the President. Definition of employee In subsection (2), employee has the same meaning as in subsection 2(1) of the Public Service Employment Act. Transfer of appropriations Any amount appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the federal public administration for the former agency that, on the day on which this section comes into force, is unexpended is deemed, on that day, to be an amount appropriated for defraying the charges and expenses of the federal public administration for the new agency. Transfer of powers, duties and functions Wherever under any Act, order, rule or regulation, or any contract, lease, licence or other document, any power, duty or function is vested in or exercisable by the President of the former agency or an employee of the former agency, the power, duty or function is vested in and shall be exercised by the President of the new agency or an employee of the new agency unless the Governor in Council by order designates a deputy minister or an officer of the federal public administration to exercise that power or perform that duty or function. Continuation of proceedings Any action, suit or other legal or administrative proceeding to which the former agency or its President is a party that is pending on the coming into force of this section may be continued by or against the new agency or its President in a similar manner and to the same extent as it would have been continued by or against the former agency or its President. Deeming Decisions made by the President of the former agency are deemed to be decisions made by the President of the new agency. Validity of documents All orders, rules, regulations, decisions, determinations and re-determinations, directions, licences, authorizations, certificates, consents, approvals, declarations, designations, permits, registrations, rates or other documents that are in force on the coming into force of this section and that are made or issued by the President of the former agency or any person under his or her authority continue in force as if they were made or issued by the President of the new agency or a person under his or her authority, as the case may be, until they expire or are repealed, replaced, rescinded or altered. Continuation of evidentiary presumption Every affidavit sworn, or document purporting to be certified, by an employee of the former agency before the day on which this section comes into force has the same probative value as if it were sworn or certified by an employee of the new agency after that day. References A reference to the former agency in any of the following is deemed to be a reference to the new agency: Schedule I to the Access to Information Act under the heading “Other Government Institutions”; the schedule to the Privacy Act; Part I of Schedule I to the Public Service Staff Relations Act; any order of the Governor in Council made under paragraph (b) of the definition head in section 3 of the Access to Information Act; any direction of the Governor in Council made under subsection 24(3) of the Auditor General Act; any order of the Governor in Council made under paragraph 29(e) of the Canadian Security Intelligence Service Act; any order of the Governor in Council made under paragraph (b) of the definition head in section 3 of the Privacy Act; and any order of the Governor in Council made under the definition department in subsection 2(1) of the Public Service Employment Act. Deputy head The designation of a person as deputy head of the former agency in any of the following is deemed to be a designation of the President of the new agency as deputy head of that agency: any order of the Governor in Council made under paragraph 29(e) of the Canadian Security Intelligence Service Act; and any order of the Governor in Council made under the definition deputy head in subsection 2(1) of the Public Service Employment Act. Nothing in this Act shall be construed as affecting the status of an employee who, immediately before the coming into force of this section, occupied a position in the Canada Customs and Revenue Agency, except that the employee shall occupy that position in the Canada Revenue Agency. Continuation of rights and property Subject to subsection (2), all rights and property of the Canada Customs and Revenue Agency continue as the rights and property of the Canada Revenue Agency. Transfer to new agency All rights and property of the Canada Customs and Revenue Agency that are in respect of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064 are transferred to the new agency. Continuation of obligations and liabilities Subject to subsection (2), all obligations and liabilities of the Canada Customs and Revenue Agency continue as obligations and liabilities of the Canada Revenue Agency. All obligations and liabilities of the Canada Customs and Revenue Agency that were incurred in respect of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064 are transferred to the new agency. Real property, immovables and licences The administration of any real property or immovable, and the administrative responsibility for any licence in respect of any real property or immovable, that was under the administration or administrative responsibility of the Canada Customs and Revenue Agency immediately before the coming into force of this section and that was used for or in support of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064 are transferred to the Minister. List As soon as practicable after the coming into force of this section, the Minister of National Revenue shall publish in the Canada Gazette a list of the real property and immovables the administration of which was transferred under subsection (1) in such a way that each is sufficiently identified. Title Where the title of any real property or immovable was held in the name of the Canada Customs and Revenue Agency immediately before the coming into force of this section and that real property or immovable was used for or in support of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064, the title to that real property or immovable is deemed to be held in the name of Her Majesty in right of Canada. Other real property, immovables and licences — Canada Revenue Agency The administration of any real property or immovable, and the administrative responsibility for any licence in respect of any real property or immovable, that is not referred to in subsection (1) and that was under the administration or administrative responsibility of the Canada Customs and Revenue Agency immediately before the coming into force of this section continues under the administration or administrative responsibility, as the case may be, of the Canada Revenue Agency. Continuation of legal proceedings: Canada Revenue Agency Subject to subsection (2), any action, suit or other legal or administrative proceeding to which the Canada Customs and Revenue Agency is a party that is pending on the coming into force of this section may be continued by or against the Canada Revenue Agency in the same manner and to the same extent as it could have been continued by or against the Canada Customs and Revenue Agency. Continuation of legal proceedings: new agency Any action, suit or other legal or administrative proceeding to which the Canada Customs and Revenue Agency is a party that is pending on the coming into force of this section may be continued by or against the new agency in the same manner and to the same extent as it could have been continued by or against the Canada Customs and Revenue Agency in respect of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064. Validity of documents: Canada Revenue Agency Subject to subsection (2), all orders, rules, regulations, decisions, determinations and re-determinations, directions, licences, authorizations, certificates, consents, approvals, declarations, designations, permits, registrations, rates or other documents that are in force on the coming into force of this section and that were made or issued by the Minister of National Revenue or by the Commissioner of Customs and Revenue or any person under their authority continue in force as if they were made or issued by the Minister of National Revenue or the Commissioner of Revenue or any person under their authority, as the case may be, until they expire or are repealed, replaced, rescinded or altered. All orders, rules, regulations, decisions, determinations and re-determinations, directions, licences, authorizations, certificates, consents, approvals, declarations, designations, permits, registrations, rates or other documents that are in force on the coming into force of this section and that were made or issued by the Minister of National Revenue or by the Commissioner of Customs and Revenue or any person under their authority that are in respect of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064 continue in force as if they were made or issued by the Minister, the President of the new agency or a person under their authority, as the case may be, until they expire or are repealed, replaced, rescinded or altered. Continuation of evidentiary presumption: Canada Revenue Agency Subject to subsection (2), every affidavit sworn, or document purporting to be certified, by an employee of the Canada Customs and Revenue Agency before the day on which this section comes into force has the same probative value as if it were sworn or certified by an employee of the Canada Revenue Agency after that day. Continuation of evidentiary presumption: Canada Border Services Agency Every affidavit sworn, or document purporting to be certified, by an employee of the Canada Customs and Revenue Agency before the day on which this section comes into force that was sworn or was purported to be certified in respect of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064 has the same probative value as if it were sworn or certified by an employee of the new agency after that day. Subject to subsection (2), every reference to the Canada Customs and Revenue Agency, the Commissioner of Customs and Revenue, the Deputy Commissioner of Customs and Revenue or any person under their authority in a document issued in the name of the Canada Customs and Revenue Agency, the Commissioner of Customs and Revenue or the Deputy Commissioner of Customs and Revenue is to be read, unless the context otherwise requires, as a reference to the Canada Revenue Agency, the Commissioner of Revenue, the Deputy Commissioner of Revenue or a person under their authority, as the case may be. Every reference to the Canada Customs and Revenue Agency, the Commissioner of Customs and Revenue, the Deputy Commissioner of Customs and Revenue or any person under their authority in a document issued in the name of the Canada Customs and Revenue Agency, the Commissioner of Customs and Revenue or the Deputy Commissioner of Customs and Revenue is to be read in respect of those documents that relate to those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064, unless the context otherwise requires, as a reference to the new agency, the President of the new agency, the Executive Vice-president of the new agency or a person under their authority, as the case may be. References in documents and other provisions: Canada Revenue Agency Subject to subsection (2), any expression referring to the Deputy Minister of National Revenue, the Department of National Revenue, the Commissioner of Customs and Revenue or the Canada Customs and Revenue Agency in any document, any instrument made under an Act of Parliament or any provision of an Act of Parliament not amended by this Act is to be read, unless the context otherwise requires, as a reference to the Commissioner of Revenue or the Canada Revenue Agency, as the case may be. References in documents and other provisions: Canada Border Services Agency Any expression referring to the Deputy Minister of National Revenue, the Department of National Revenue, the Commissioner of Customs and Revenue or the Canada Customs and Revenue Agency in any document, any instrument made under an Act of Parliament or any provision of an Act of Parliament not amended by this Act and the document, instrument or provision is in respect of those portions of the Canada Customs and Revenue Agency the control and supervision of which were transferred to the former agency by order P.C. 2003-2064 is to be read, unless the context otherwise requires, as a reference to the President of the new agency or the new agency, as the case may be. Royal Canadian Mint Act The Minister of National Revenue is the Minister for the purposes of the Royal Canadian Mint Act until another member of the Queen’s Privy Council for Canada is designated under section 2.1 of that Act, as enacted by section 130 of this Act. [Amendment] [Amendments] [Related provision] Order in council This Act, except for sections 144 to 146, comes into force on a day to be fixed by order of the Governor in Council. [Note: Sections 144 to 146 in force on assent November 3, 2005; Act, except sections 144 to 146, in force December 12, 2005, see SI/2005-119.] Section 2 of the Canada Border Services Agency Act is amended by adding the following in alphabetical order: Commission means the Public Complaints and Review Commission established by subsection 3(1) of the Public Complaints and Review Commission Act. (Commission) Subsection 9(1) of the Act is replaced by the following: Subject to subsection (1.1), the President may delegate to any person any power, duty or function that the President is authorized to exercise or perform under this Act or any other enactment. The President shall not delegate the power to make rules under section 39 of the Public Complaints and Review Commission Act and the power to enter into a memorandum of understanding under subsection 17(7) of that Act. Section 13 of the Act is amended by adding the following after subsection (2): Restriction The Agency may enter into an agreement or arrangement with the government of a province respecting the detention of persons on behalf of the Agency only if the Minister is of the opinion that there is in the province an independent individual or body that is empowered to receive and deal with complaints about the treatment and conditions of detention of detained persons. If the Minister is of the opinion that there is an urgent need to provide for the detention of persons on a temporary basis, the Agency may, with the Minister’s approval, enter into an agreement or arrangement referred to in subsection (3) with the government of a province even if the Minister is of the opinion that there is no independent individual or body referred to in that subsection in the province. Duty to provide information If the Agency is notified that a person who is or has been detained on behalf of the Agency under an agreement or arrangement referred to in subsection (3) has made a complaint respecting their treatment during detention — or their conditions of detention — to any competent authority in the province where they are or were detained, the Agency shall, as soon as feasible, provide the Commission with all of the information that the Agency has received or receives in relation to the complaint. Duty to provide copy If the Agency enters into an agreement or arrangement respecting the monitoring of the treatment and of the conditions of detention of persons detained by or on behalf of the Agency or the inspection of any facility where persons are detained by or on behalf of the Agency, the Agency shall, as soon as feasible, provide the Commission with a copy of every document containing findings or recommendations that it receives under that agreement or arrangement. The Act is amended by adding the following after section 14: The following definitions apply in this section and sections 14.2 to 14.9. employee, in relation to the Agency, includes any person who assists the Agency in the exercise of any of its powers or the performance of any of its duties and functions under this Act. (employé) serious incident means an incident in which the actions of an officer or employee of the Agency in the exercise of its powers or the performance of its duties and functions under this Act may have resulted in serious injury to or the death of any person; or may have constituted an offence under federal or provincial law that the Minister or the President decides would be in the public interest to be investigated by the Agency. (incident grave) serious injury means a prescribed physical or psychological injury. (blessure grave) Regulations The Governor in Council may make regulations prescribing physical or psychological injuries for the purposes of the definition serious injury in subsection (1). Notification As soon as feasible after becoming aware that a serious incident is alleged to have occurred, the President shall notify the police force that has jurisdiction at the location where it is alleged to have occurred and the Commission of the alleged serious incident. Investigation Subject to subsection (2), as soon as feasible after the President becomes aware that a serious incident is alleged to have occurred, the Agency shall investigate the alleged serious incident. Limit on investigation If the alleged serious incident involves the actions of one or more persons, the Agency shall not, in the investigation, investigate the actions of any person who assists the Agency in the exercise of any of its powers or the performance of any of its duties and functions under this Act by reason only of an agreement or arrangement referred to in subsection 13(3). Copy of records As soon as feasible after completing the investigation, the President shall provide the Commission with a copy of any records in its possession relating to the investigation. The President shall also provide the Commission with a copy of any record in respect of every other lawfully authorized investigation conducted into the alleged serious incident that the Agency receives after the completion of its own investigation. Observer The Agency shall permit an observer appointed by the Commission under subsection (2) to assess the impartiality of the investigation. Appointment of observer The Commission may appoint an observer to assess the impartiality of the investigation. Observers are compellable Despite subsection 11(3) of the Public Complaints and Review Commission Act, but subject to section 14.8(1), every observer is a compellable witness in every criminal, civil or administrative action or proceeding, or inquiry, in respect of any matter coming to the knowledge of the observer as a result of exercising a power or performing a duty or function under this Part. No observer appointed If no observer is appointed to an investigation of a serious incident under subsection (2), the President shall provide the Chairperson of the Commission with a report that sets out all measures that have been or will be taken by the Agency to ensure the impartiality of the investigation. Recommendations If the observer has concerns with the impartiality of the investigation, the observer may inform the Agency of their concerns and may make any recommendations to the Agency that they consider appropriate to address those concerns. Report The observer shall, in accordance with the regulations, provide a report respecting the impartiality of the investigation of a serious incident to the Chairperson of the Commission and the President. Response If the observer’s report identifies concerns with respect to the impartiality of an investigation, the President shall provide to the Chairperson of the Commission a written response to the observer’s report that includes a description of what actions have or will be taken by the Agency to address those concerns. Report on response If the Chairperson of the Commission is not satisfied with the response of the President, the Chairperson shall issue a report to that effect to the Minister. Information subject to privilege Nothing in this Act authorizes a person to disclose to an observer privileged information, as defined in subsection 17(1) of the Public Complaints and Review Commission Act, and an observer shall not use or disclose that information if it is disclosed. Offence to disclose certain information Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or guilty of an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both. Limitation period Summary conviction proceedings in respect of an offence under subsection (2) may be instituted at any time within but not later than two years after the time when the subject matter of the proceedings arose. The Governor in Council may make regulations respecting the criteria and procedures for the appointment of an observer; respecting the scope of an observer’s role; respecting an observer’s reporting obligations; respecting the access to, and use of, the notes, reports or other material prepared by an observer in relation to an investigation; prescribing the period within which the President is to provide a response under subsection 14.7(2); and generally for carrying out the purposes of sections 14.5 to 14.8.