On April 27, 2016, the Canada Border Services Agency (“CBSA”) released Guide BS5156 “What you need to know about Customs Controlled Areas”. In this one page document, the CBSA informs the public that a “customs controlled area” is:
“A designated area where there is a likelihood that domestic employees or domestic origin travellers leaving Canada will come into contract with international travellers and/or international goods that have not been processed or released (as the case may be) by the Canada Border Services Agency (CBSA). The CBSA has implemented CCAs within some of the designated ports of entry.”
In other words, customs controlled areas are established by the CBSA in airports, rail stations, marine ports, land border crossings, mail facilities, courier facilities, etc. The customs controlled area can relate to inbound activities (such as arriving in Canada after being outside Canada) or outbound activities (e.g., in the U.S. or international departure hall of the airport). Within the customs controlled area, the CBSA may question and examine travellers and/or examine and detain goods. Within the customs controlled area, individuals must answer all questions asked by the CBSA and follow any direction of the CBSA (unless the law permits a refusal).
The purpose of the customs controlled area is to establish a space where the CBSA can enforce Canadian law with respect to travellers and goods that are moving inbound and outbound. The CBSA describes the purpose of the customs controlled area as follows:
“CCAs are intended to enhance safety and operational effectiveness at ports of entry by addressing the potential for employees to misuse their positions to engage in criminal activity when in contact with international travellers and/or goods not yet cleared by the CBSA.”
I kid you not – this is what the CBSA has written. In my opinion, the customs controlled area has more to do with protecting Canada and ensuring import duties are paid. A very minor ancillary role of the customs controlled area is to catch illegal activity of employees operating within the area (such as the CBSA themselves).
Much of Guide BS5156 is written to communicate how employees are affected by the customs controlled area designation. What is more important (and somewhat lacking) is the expectations of travellers in the customs controlled area. Some of the responsibilities on travellers are:
- At the request of a CBSA officer, any traveller within or exiting a CCA is required to identify thenselves. That is, if a CBSA officer comes up to you and asks for identification, you must provide your identification.
- At the request of a CBSA officer, any traveller within or exiting a CCA is required to truthfully answer questions asked by the CBSA officer. If you do not answer a question truthfully, you commit an offence under the Customs Act. That being said, if you don’t understand a question and answer the question incorrectly, that may not be an untruthful statement.
- At the request of a CBSA officer, any traveller within or exiting a CCA is required to present goods for examination. This means that the CBSA can search your luggage, any boxes you are importing, and your computers/smartphones, etc.
The most important statement made in Guide BS5156 relates to privacy rights of travellers:
“In accordance with CCA Regulations, heightened privacy requirements are in effect which will help safeguard a person’s rights and freedoms. The grounds for CBSA officers to examine goods and search persons in a CCA need to meet higher thresholds than the grounds for the examination of goods and the search of persons crossing the border. The presence of CCAs will not interfere with the day-to-day activities of business travellers and employees within these designated areas.”
“Travellers and employees in CCAs are protected under the provisions of the Canadian Charter of Rights and Freedoms. As well, all CBSA employees are subject to strict standards of conduct to uphold the CBSA values of integrity, respect and professionalism. Any employee who abuses his/her authority or violates these standards may be subject to disciplinary action.”
These statements are very interesting and confusing. The CBSA seems to suggest that all persons in the customs controlled area are not treated the same. The CBSA seems to suggest that some people and goods have privacy rights at a higher standard than others. It is not clear what the difference is between “persons crossing the border” and “persons in the CCA”. It may be that individuals who are not entering Canada (have entered the customs controlled area from within Canada) will be held to a different standard than individuals who are entering Canada (have been outside Canada prior to entering the customs controlled area). It would be helpful if the CBSA would have made a more clear delineation.
The statement about the expectation on CBSA employees is also very interesting. The CBSA’s code of conduct is not posted in CCAs.
For more information about the CBSA’s Code of Conduct, please review yesterday’s blog post entitled “Canada Border Services Agency Revised Code of Conduct Is Published Online”.
For more information about Canadian customs law, please contact Cyndee Todgham Cherniak at 416-307-4168 or email firstname.lastname@example.org. For more Free information, please go to www.lexsage.com.