On December 12, 2003, Prime Minister Paul Martin was sworn in as Canada's 21st Prime Minister. After taking his oath of office, Prime Minister Martin appointed his first Cabinet; and announced his plans to "change government", "build a twenty-first century economy" and "secure Canada's public health and safety".
One of the structural changes was the creation of the Department of Public Safety and Emergency Preparedness (the "Department of PSEP"). Prime Minister Martin appointed Minister Anne McLellan as the Minister in charge of this new Department of PSEP and appointed her as the Deputy Prime Minister. The purpose of Canada's new Department of PSEP is to secure the safety of Canadians by protecting against, and responding to, national crises and disasters, as well as facilitating and implementing security arrangements. This new Department has many parallels to the Department of Homeland Security ("DHS") in the United States, including the transfer of customs administration under the "border security" umbrella. The Department of PSEP is responsible for six portfolio agencies, which oversee various domestic and international concerns. The six portfolio agencies are (i) the Canada Firearms Centre, (ii) the Canadian Security Intelligence Service, (iii) the Correctional Service of Canada, (iv) the National Parole Board, (v) the Royal Canadian Mounted Police, and (vi) the newly created Canada Border Services Agency.
Canada Border Services Agency
On December 12, 2003, Prime Minister Martin announced the creation of the Canada Border Services Agency (the "CBSA") to facilitate and administer Canada’s border control.
On December 31, 2003, pursuant to the Order Transferring Certain Portions of the Canada Customs and Revenue Agency to the Canada Border Services Agency made under the Public Services Rearrangement and Transfer of Duties Act (the "Order"), the Governor General transferred to the CBSA (effective to December 12, 2003) the control and supervision of the following portions of the public service previously provided by the Canada Customs and Revenue Agency (the "CCRA");
(a) The Customs Branch of the CCRA (including the Antidumping and Countervailing Directorate);
(b) The Customs Operations Division of the Investigations Directorate of the Compliance Programs Branch;
(c) The Customs Appeal Directorate of the Appeals Branch; and
(d) That portion within each of the CCRA's regional divisions responsible for the administration of the Customs program, other than the portions of those regional divisions that relate to collections.
However, as of the time of writing this article, legislation has not been tabled in the House of Commons or the Senate creating the CBSA. It is not clear how the Order could transfer functions to a body that does not exist. Presumably, the legislation, when it is enacted, will be retroactive, thereby solving the dilemma.
It is not just the enforcers of customs laws at border points (that is, Customs Officers) or border security functions that have been transferred to the CBSA. In effect, all customs administration functions, from the drafting of customs legislation and the creation of customs policies, to the collection of duties and taxes at the border to adjudications, have been transferred from the CCRA to the security focused Department of the PSEP. Even the Antidumping and Countervailing Directorate, the government representatives who determine whether a foreign producers or exporter is selling goods into Canada at dumped or subsidized prices, is now part of the Department of PSEP. One could query what antidumping or subsidization has to do with public safety or emergency preparedness and whether these functions should have been transferred to the Department of International Trade or Industry Canada. The wisdom appears to be that since antidumping and countervailing duties are duties that are imposed in respect of imported goods in addition to customs duties and excise duties, which will be collected by the CBSA, the Antidumping and Countervailing Directorate belongs with the Customs Branch.
In addition to the customs functions, the CBSA will amalgamate the intelligence, interdiction and enforcement functions, formerly under the mandate of Citizenship and Immigration Canada (the "CIC"), and the passenger and initial import inspection services at ports of entry formerly performed by Canadian Food Inspection Agency.
The streamlining of border functions under the Department of PSEP signifies a shift from revenue generation, in the form of tariff collection at the border to protect against terrorist and other threats.
The Canada Revenue Agency
On December 12, 2003, Prime Minister Martin appointed Minister Stan Keyes to the position of Minister of National Revenue, replacing Minister Elinor Caplan, who had developed and implemented many of the programs outlined in the Smart Border Accord.
With the transfer of the customs administration functions from the CCRA to the CBSA, the CCRA changed its name to the Canada Revenue Agency ("CRA"), thereby removing the word "Customs" from its name. The CRA has a new web-site at www.cra.gc.ca and has announced that:
As of the time of writing this article, legislation has not been tabled in the House of Commons or the Senate amending the Canada Customs and Revenue Agency Act to effect the name change. Presumably the amendments will be retroactive to December 12, 2003. However, until the name is statutorily changed to the CRA, there is a question as to the appropriate name to use on legal documents. When one files an appeal against the Commissioner, is it the Commissioner of the CCRA or the Commissioner of the CRA? Similarly, there is a question of the appropriate name to use on documents filed in connection with customs matters. When one files an appeal, is it against the Commissioner of the CCRA, CRA or CBSA or the Minister of PSEP? We can anticipate a retroactive statutory amendment or enactment, as the case may be. Current wisdom is to continue to follow the statutory provisions that are effective and file "corrections" after the amendments and legislation, as the case may be, have received Royal Assent or have been otherwise promulgated.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.