Legal concerns prevent border agency from using criminal intelligence

The Canadian Press ~ The News
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OTTAWA - Canada's border agency has been waving through travellers at entry points even though it has information some may be working for organized crime, an internal report suggests.
The agency, which gets its intelligence from the Canadian Security Intelligence Service, is doing so because it is worried about court challenges that may force it to reveal secret sources.
This so-called "front-end intelligence information gap" affects thousands of travellers enrolled in programs that allow them to skip long queues by flashing a card giving quick entry into Canada.
The Nexus and FAST cards were designed to speed passage of low-risk, pre-approved business people and truckers, allowing border guards to focus on higher risk travellers and goods.
But some of Canada's border guards have been skeptical of the cards, fearing they've become a "licence to smuggle." The guards have caught too many card-holders trying to smuggle goods into Canada, in one instance a man hauling a $186,000 boat.
And internal documents from the Canada Border Service Agency suggest there's good reason for the guards' skepticism: the agency is required to ignore adverse intelligence if an applicant otherwise passes muster.
"CBSA Legal Services recommended against the denial of applicants based on intelligence information if they are otherwise eligible for membership," says a memo.
"Legal Services further noted that should an applicant seek judicial review, the CBSA - not the source of the intelligence, CSIS - would be responsible for responding to the Federal Court on the issue.
"As such, the CBSA does not use intelligence information in the screening process for membership and as such, the possibility exists that persons who are assessed above low-risk based on intelligence information will be granted membership."
Records outlining the problem were obtained by The Canadian Press under the Access to Information Act.
The documents note that the U.S. Customs and Border Protection agency, which also issues Nexus and FAST cards, has no qualms about using intelligence information alone to deny membership.
The different policy in Canada suggests departments have become spooked by the Canadian judicial system, where courts have recently pressed CSIS and others to divulge information that security agencies consider highly secret and damaging if made public.
The CBSA has compiled intelligence on hundreds of members of the two card programs, the material indicates.
"Intelligence is not fact," says one briefing note in justifying the membership policy. "It is based on opinion, conjecture and supposition."
CBSA came under fire from the auditor general of Canada in 2007 for sloppy security in its pre-approved traveller programs. Among Sheila Fraser's concerns was that the agency issued the five-year cards but then did little followup monitoring of the card-holders, especially those deemed slightly higher risk.
The U.S. customs agency runs automated checks every 24 hours on its card-holders, looking for criminal convictions and other violations. But in Canada, there weren't even annual checks.
In response, the agency last March beefed up its monitoring of Nexus and FAST members and will review the effectiveness of the new measures next month. Among the measures is a regular review of any intelligence information that becomes available, as well as so-called annual "re-risking" to ensure card-holders remain eligible for the program.
A spokeswoman for CBSA stressed that the card programs already have stringent rules.
"It is important to note that the Nexus and FAST programs utilize strict eligibility standards," Patrizia Giolti said in an email.
"Applicants to these programs must not have a serious criminal conviction in any country for which a pardon has not been granted or, have been found in violation of legislation administered by the CBSA.
"Membership in Nexus or FAST may be denied or cancelled if a determination is made that an applicant or member does not meet the eligibility criteria either at enrolment or during the period of membership."
Nexus cards, introduced in 2000, now are carried by more than 172,000 Canadian travellers for use at land border stations, international airports and ferry terminals. Another 65,000 Canadian commercial drivers use FAST cards.

Organizations: CBSA, Canadian Security Intelligence Service, Legal Services Federal Court Canadian Press US Customs Border Protection agency

Geographic location: Canada, OTTAWA, U.S.

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