Canada Border Services Agency Act (S.C. 2005, c. 38)

Short Title

Marginal note:Short title

1 This Act may be cited as the Canada Border Services Agency Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this Act.

Agency

Agency means the Canada Border Services Agency established under subsection 3(1). (Agence)

Minister

Minister means the Minister of Public Safety and Emergency Preparedness. (ministre)

President

President means the President of the Agency appointed under subsection 7(1). (président)

program legislation

program legislation means any other Act of Parliament or any instrument made under it, or any part of such an Act or instrument,

• (a) 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;

• (b) 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;

• (c) 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

• (d) under which duties or taxes collected and paid pursuant to the Customs Act are imposed. (législation frontalière)

Establishment and Mandate of the Agency

Marginal note:Agency established

• 3 (1) The Canada Border Services Agency is established as a body corporate.

• Marginal note:Agent of Her Majesty

  (2) The Agency is for all purposes an agent of Her Majesty in right of Canada.

Marginal note:Head office

4 The head office of the Agency is to be in the National Capital Region described in the schedule to the National Capital Act.

Marginal note:Mandate of Agency

• 5 (1) 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

  • (a) supporting the administration or enforcement, or both, as the case may be, of the program legislation;

  • (b) 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;

  • (c) 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;

  • (d) 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

  • (e) 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.

• Marginal note:Support

  (2) 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

Marginal note:Minister responsible

• 6 (1) The Minister is responsible for the Agency.

• Marginal note:Delegation by Minister

  (2) The Minister may delegate to any person any power, duty or function conferred on the Minister under this Act or under the program legislation.

• Marginal note:Exception

  (3) 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.

• Marginal note:Limitation

  (4) Subsection (2) does not apply in respect of a power to make regulations.

President and Executive Vice-president

Marginal note:Appointment

• 7 (1) 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.

• Marginal note:Executive Vice-president

  (2) 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.

Marginal note:Role of President

• 8 (1) The President, under the direction of the Minister, has the control and management of the Agency and all matters connected with it.

• Marginal note:Rank of deputy head

  (2) The President has the rank and all the powers of a deputy head of a department.

• Marginal note:Executive Vice-president’s powers

  (3) 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.

Marginal note:Delegation by President

• 9 (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.

• Marginal note:Designation of officers

  (2) The President may designate any person, or person within a class of persons,

  • (a) 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

  • (b) 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.

• Marginal note:Designation power

  (3) The President may exercise any power that the Minister has to designate officers under subsection 6(1) of the Immigration and Refugee Protection Act.

Marginal note:Remuneration

• 10 (1) The President and the Executive Vice-president shall be paid the remuneration that is fixed by the Governor in Council.

• Marginal note:Expenses

  (2) 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.

• Marginal note:Deemed employment

  (3) 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.

Human Resources

Marginal note:Officers and employees

11 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.

Powers of the Agency

Marginal note:Exercise of powers conferred on Minister

• 12 (1) 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.

• Marginal note:Officers and employees

  (2) 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.

• Marginal note:Exception

  (3) Subsection (1) does not include

  • (a) any power, duty or function of the Minister under this Act; or

  • (b) a power to make regulations.

• Marginal note:Non-application of Statutory Instruments Act

  (4) A direction given by the Minister under subsection (1) or (2) is not a statutory instrument for the purposes of the Statutory Instruments Act.

Marginal note:Agreements

• 13 (1) 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.

• Marginal note:Arrangements and agreements

  (2) The Agency may, for the purposes of carrying out its mandate,

  • (a) enter into an arrangement with a foreign state or an international organization; or

  • (b) 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.

Marginal note:Agreements to administer a tax

• 14 (1) 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.

• Marginal note:Application of the Federal-Provincial Fiscal Arrangements Act

  (2) 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).

Expenditures

Marginal note:Appropriation Acts

15 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

Marginal note:Annual report

• 15.1 (1) 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.

• Marginal note:Reports required by Treasury Board

  (2) 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.

Transitional Provisions

Definitions

Marginal note:Definitions

16 The following definitions apply in sections 17 to 19 and 21 to 28.

former agency

former agency means the portion of the federal public administration known as the Canada Border Services Agency. (ancienne agence)

new agency

new agency means the Canada Border Services Agency established under subsection 3(1). (nouvelle agence)

order P.C. 2003-2064

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)

Former Agency

Marginal note:President and Executive Vice-president

• 17 (1) 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.

• Marginal note:Positions

  (2) 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.

• Marginal note:Definition of employee

  (3) In subsection (2), employee has the same meaning as in subsection 2(1) of the Public Service Employment Act.

Marginal note:Transfer of appropriations

• 18 (1) 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.

• Marginal note:Transfer of powers, duties and functions

  (2) 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.

• Marginal note:Continuation of proceedings

  (3) 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.

• Marginal note:Deeming

  (4) Decisions made by the President of the former agency are deemed to be decisions made by the President of the new agency.

• Marginal note:Validity of documents

  (5) 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.

• Marginal note:Continuation of evidentiary presumption

  (6) 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.

Marginal note:References

• 19 (1) A reference to the former agency in any of the following is deemed to be a reference to the new agency:

  • (a) Schedule I to the Access to Information Act under the heading “Other Government Institutions”;

  • (b) the schedule to the Privacy Act;

  • (c) Part I of Schedule I to the Public Service Staff Relations Act;

  • (d) any order of the Governor in Council made under paragraph (b) of the definition head in section 3 of the Access to Information Act;

  • (e) any direction of the Governor in Council made under subsection 24(3) of the Auditor General Act;

  • (f) any order of the Governor in Council made under paragraph 29(e) of the Canadian Security Intelligence Service Act;

  • (g) any order of the Governor in Council made under paragraph (b) of the definition head in section 3 of the Privacy Act; and

  • (h) any order of the Governor in Council made under the definition department in subsection 2(1) of the Public Service Employment Act.

• Marginal note:Deputy head

  (2) 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:

  • (a) any order of the Governor in Council made under paragraph 29(e) of the Canadian Security Intelligence Service Act; and

  • (b) any order of the Governor in Council made under the definition deputy head in subsection 2(1) of the Public Service Employment Act.

Canada Customs and Revenue Agency

Marginal note:Positions

20 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.

Marginal note:Continuation of rights and property

• 21 (1) 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.

• Marginal note:Transfer to new agency

  (2) 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.

Marginal note:Continuation of obligations and liabilities

• 22 (1) 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.

• Marginal note:Transfer to new agency

  (2) 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.

Marginal note:Real property, immovables and licences

• 23 (1) 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.

• Marginal note:List

  (2) 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.

• Marginal note:Title

  (3) 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.

• Marginal note:Other real property, immovables and licences — Canada Revenue Agency

  (4) 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.

Marginal note:Continuation of legal proceedings: Canada Revenue Agency

• 24 (1) 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.

• Marginal note:Continuation of legal proceedings: new agency

  (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 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.

Marginal note:Validity of documents: Canada Revenue Agency

• 25 (1) 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.

• Marginal note:Validity of documents

  (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 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.

Marginal note:Continuation of evidentiary presumption: Canada Revenue Agency

• 26 (1) 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.

• Marginal note:Continuation of evidentiary presumption: Canada Border Services Agency

  (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 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.

Marginal note:References

• 27 (1) 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.

• Marginal note:References

  (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 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.

Marginal note:References in documents and other provisions: Canada Revenue Agency

• 28 (1) 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.

• Marginal note:References in documents and other provisions: Canada Border Services Agency

  (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 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

Marginal note:Royal Canadian Mint Act

29 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.

Consequential Amendments

Agriculture and Agri-Food Administrative Monetary Penalties Act

30 [Amendment]

Air Travellers Security Charge Act

31 [Amendment]

32 [Amendment]

Canada Agricultural Products Act

33 [Amendment]

Canada Customs and Revenue Agency Act

34 [Amendment]

35 [Amendment]

36 [Amendments]

37 [Amendment]

38 [Amendment]

39 [Amendment]

40 [Amendments]

41 [Amendment]

42 [Amendment]

43 [Amendment]

44 [Amendment]

45 [Amendment]

46 [Amendment]

47 [Amendment]

48 [Amendment]

49 [Amendment]

50 [Amendment]

51 [Amendment]

52 [Amendment]

Canadian Food Inspection Agency Act

53 [Amendment]

Canadian International Trade Tribunal Act

54 [Amendment]

55 [Amendments]

56 [Related provision]

Department of Citizenship and Immigration Act

57 [Amendment]

Criminal Code

58 [Amendments]

Cultural Property Export and Import Act

59 [Amendment]

Customs Act

60 [Amendments]

61 [Amendment]

62 [Amendment]

63 [Amendment]

64 [Amendment]

65 [Amendment]

66 [Amendment]

67 [Amendment]

68 [Amendment]

69 [Amendment]

70 [Amendment]

71 [Amendment]

72 [Amendment]

73 [Amendment]

74 [Amendment]

75 [Amendment]

76 [Amendment]

77 [Amendment]

78 [Amendments]

79 [Amendment]

80 [Amendments]

81 [Amendment]

82 [Amendment]

83 [Amendment]

84 [Amendments]

85 [Amendments]

Customs and Excise Offshore Application Act

86 [Amendments]

Customs Tariff

87 [Amendment]

88 [Amendment]

89 [Amendments]

Employment Insurance Act

90 [Amendment]

Excise Act

91 [Amendment]

Excise Act, 2001

92 [Amendment]

93 [Amendment]

94 [Amendments]

95 [Amendments]

96 [Amendment]

97 [Amendment]

98 [Amendment]

Excise Tax Act

99 [Amendment]

100 [Amendment]

101 [Amendment]

102 [Amendments]

103 [Amendment]

104 [Amendment]

105 [Amendments]

106 [Amendment]

107 [Amendment]

108 [Amendment]

109 [Amendment]

110 [Amendment]

Family Orders and Agreements Enforcement Assistance Act

111 [Amendment]

Feeds Act

112 [Amendment]

Fertilizers Act

113 [Amendment]

Financial Administration Act

114 [Amendment]

115 [Amendment]

Fish Inspection Act

116 [Amendment]

Health of Animals Act

117 [Amendment]

Immigration and Refugee Protection Act

118 [Amendment]

119 [Amendments]

Income Tax Act

120 [Amendment]

Meat Inspection Act

121 [Amendment]

122 [Amendment]

Plant Protection Act

123 [Amendment]

Proceeds of Crime (Money Laundering) and Terrorist Financing Act

124 [Amendments]

125 [Amendment]

126 [Amendments]

127 [Amendments]

Public Service Superannuation Act

128 [Amendment]

Royal Canadian Mint Act

129 [Amendment]

130 [Amendment]

Seeds Act

131 [Amendment]

Special Import Measures Act

132 [Amendments]

133 [Amendment]

134 [Amendments]

135 [Amendments]

136 [Amendments]

137 [Related provision]

Terminology Changes

138 [Amendments]

139 [Amendments]

140 [Amendments]

141 [Amendments]

142 [Amendments]

143 [Amendment]

Coordinating Amendments

144 [Amendments]

145 [Amendments]

146 [Amendment]

Coming into Force

Marginal note:Order in council

Footnote ^*147 This Act, except for sections 144 to 146, comes into force on a day to be fixed by order of the Governor in Council.

• Return to footnote ^*[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.]