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Final Report
December 2010

Table of Contents

• Executive Summary
• 1. Introduction and Context
  • Overview of the CBSA Criminal Investigations Program
  • Evaluation Purpose and Scope
  • Evaluation Methodology
• 2. Key Findings - Relevance
  • Continued Need for the Program
  • Alignment with Government Priorities, Federal Roles and Responsibilities, and CBSA Mandate
• 3. Key Findings – Performance
  • Achievement of Expected Outcomes
  • Demonstration of Efficiency and Economy
• 4. Key Conclusions, Recommendations and Management Response
• Appendices
  • Appendix A: Abbreviations and Acronyms
  • Appendix B: Name and Description of IRPA Sections

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Executive Summary

The Canada Border Services Agency's (CBSA) mandate is twofold: facilitate the movement of legitimate travellers and goods and intercept those travellers and goods that pose a threat to Canada. The CBSA fulfills this mandate by providing integrated border services that support national security, public safety and economic prosperity priorities.

The criminal enforcement arm of the CBSA focuses on the detection, redress, and deterrence of contraventions of the CBSA's border legislation.[ 1 ] The CBSA Criminal Investigations Program investigates and recommends for prosecution significant cases of fraud and smuggling under the Customs Act, Customs Tariff, Immigration and Refugee Protection Act (IRPA), Excise Act, Export and Import Permits Act and many of the additional 70 federal statutes that the CBSA administers.

The CBSA assumed responsibility for several criminal investigation activities related to the IRPA in 2006 when they were transferred from the Royal Canadian Mounted Police (RCMP) following a program review at the RCMP. The CBSA was given primary responsibility for the investigation of a range of IRPA offences related to counselling misrepresentation, misrepresentation, document fraud, and aiding/abetting of individuals committing offences, including those involving commercial and corporate entities.[ 2 ] The RCMP retained responsibility for criminal investigation of offences under the Citizenship Act, the Canadian Passport Order and the Criminal Code, as well as for offences under the IRPA involving organized crime, national security and alleged trafficking of persons.

Evaluation Purpose and Scope

This report presents the findings of an evaluation of the CBSA's Criminal Investigations Program activities related to the investigation and laying of charges for criminal offences under the IRPA. This evaluation excludes Criminal Investigations Program activities related to other government legislation, such as the Customs Act and the Computer Search and Evidence Recovery (CSER) Program.

This evaluation was identified as a priority in the 2009–2011 CBSA Risk-Based Multi-Year Evaluation Plan which was approved by the Executive Evaluation Committee in July 2009. The evaluation research was carried out between October 2009 and January 2010. In preparation for this evaluation, the evaluation team, in consultation with key internal stakeholders, developed a logic model for the Criminal Investigations Program's IRPA-related activities. Based on the logic model, key evaluation issues were identified and an evaluation plan was developed.

Evaluation Methodology

The CBSA Program Evaluation Division in the Internal Audit and Program Evaluation Directorate coordinated and conducted this evaluation. Main lines of evidence included a review of documents, observations made during site visits, focus groups and in-depth interviews with key CBSA staff in the regions and at national headquarters, at Citizenship and Immigration Canada (CIC), the RCMP, the Public Prosecution Service of Canada (PPSC) and with private sector stakeholders.

Key Conclusions and Recommendations

Overall, the evaluation found that the Criminal Investigations Program (IRPA) is a key element in ensuring the integrity of Canada's immigration program and its border legislation. It supports the federal government priority of a safe and secure Canada by ensuring that those who pose a threat to the integrity of Canada's immigration laws are identified, investigated and prosecuted. In addition, the investigation of criminal offences under the IRPA is a clear responsibility of the CBSA and the activity contributes to the Agency's strategic outcome of ensuring that Canada's population is safe and secure from border-related risks. Roles and responsibilities between partner organizations (the CBSA, CIC, PPSC, and RCMP) are consistent with the mandates of each organization and are defined in related Memoranda of Understanding (MOU) and agreements.

The CBSA has made solid progress since it took over the responsibility for criminal investigations of IRPA offences in 2006–2007. The number of referrals to the criminal investigation units from all sources has increased twofold. The number of charges laid increased 40.2% over four years from 2006–2007 to 2009–2010.[ 3 ] The conviction rates for the cases brought forward for prosecution have been consistently high at around 90%. In FY 2005–2006, prior to assuming the IRPA investigations responsibility, the CBSA spent $14,766,601 on criminal investigations. By FY 2008–2009, that expenditure had increased to $21,623,323, an increase of 46.4%; however, 17% represents an increase in resources as a result of the Canadian Experience Class (CEC) initiative and 21% is a result of the FB conversion.[ 4 ] The actual proportion of the budget dedicated to IRPA investigations and prosecutions is not known.

No detailed analysis has been conducted to determine the impact that IRPA investigations have had on other criminal investigations activities. Interviewees acknowledge that there continues to be a mindset of wanting to meet or exceed investigation targets provided by the CBSA Criminal Investigations Division (CID). In other words, efforts are not always being focused on the priorities as outlined in the 2009–2010 Annual Business Plan. The evaluation noted that the program faces challenges in realizing their vision, most notably in the areas of training, performance measurement and the system and tools needed to support its work.

Public prosecutors and CBSA regional managers and directors identified the need to enhance the investigators' skills and knowledge in the areas of criminal law, interviewing techniques, securing and executing search warrants, and forensic investigations. In addition, interviewees and focus group participants indicated that complex cases by their very nature require a higher level of skill in these areas. While the CBSA Training and Learning Directorate is in the process of finalizing a learning path for investigators, this tool will only be in relation to existing courses, and by extension, does not take into account gaps that may exist in the current training for investigators.

Key performance indicators for the program are the number of cases referred to the PPSC for prosecution, the number of cases in which the CBSA lays charges and the conviction rate. In addition, the numbers and sources of referrals are collected and tracked. It is not possible, however, to link a case to a level of threat or risk through the case management system. In addition, the citizenship[ 5 ] of a potential offender or the immigration program that the suspect may have applied under is not tracked. This makes it difficult to determine whether the CBSA is pursuing the "right" cases and whether the cases in fact serve to support the integrity of the immigration program.

In light of these findings, the evaluation recommends that:

Recommendation 1: The Programs Branch develop and implement a rationale and strategy for moving forward. The strategy should include a detailed implementation plan, address the issues noted in this report and include the following:

• An analysis of the impact that the new focus will have on other criminal investigations activities;
• A governance model that would facilitate partnerships and information exchange with internal and external delivery partners;
• A performance measurement framework to ensure that sufficient information is available for reporting on and monitoring program activities and related budgets;
• A training needs analysis to identify knowledge and skill requirements both for investigators and border services officers (BSOs); and
• A case risk profile to assist regions in their case selection to ensure that high-risk cases are pursued.

Linked to the above finding of performance information being insufficient is the fact that the current Criminal Investigations Management System (CIIMS) does not have the capacity to meet the needs of the program. The number and type of fields/variables are not sufficient to extract the information needed.

Enhancements to the system have been previously identified. For example, a 2007 Office of the Auditor General (OAG) report identified the need to use both intelligence and investigations information in the assessment of persons seeking access to various trusted traveller programs. The enhancements planned or underway include additional "read-only" access for other CBSA program staff, improved search options, updates to current drop-down lists and addition of new fields. To date, not all of these enhancements have been incorporated into CIIMS. Indeed, in its 2009–2010 business plan, the CID identifies the system as a key challenge to the success of the program moving forward. This position is supported by a report produced by the CBSA Technology Branch which concluded that there was a compelling rationale to replace CIIMS.

In light of these findings, the evaluation recommends that:

Recommendation 2: The Programs Branch enhance or replace CIIMS to better support the collection and generation of program performance information.

In 2009–2010, criminal investigation units concluded 230 cases. However, in 2009–2010, there were only eight media articles highlighting four unique cases that resulted in criminal convictions under the IRPA, which specifically credit CBSA criminal investigations activities.

Interviewees were unanimous in voicing the opinion that communicating results of the program through media and stakeholder outreach, and raising awareness in affected communities in Canada and abroad would contribute to the program outcome of deterrence. They also noted that achievement of the program outcome of deterrence of offences committed under the IRPA is currently impaired by the lack of communication of program results.

Border agencies in other countries, such as the UK Border Agency, have recognized the importance of publicity campaigns as a means to deter immigration fraud. For example, in 2007–2008, to "deter illegal worker and smuggling and promote legal compliance",[ 6 ] it ran a media campaign to build awareness of the new penalties associated with employing illegal workers. No information was available that linked the media campaign to deterrence.

In light of these findings, the evaluation recommends that:

Recommendation 3: The Programs Branch work with the Communications Directorate to develop and implement a communication strategy for the Criminal Investigations Program aimed at deterring criminal offences committed under the IRPA.

Introduction and Context

The Canada Border Services Agency's (CBSA) mandate is twofold: facilitate the movement of legitimate travellers and goods and intercept those travellers and goods that pose a threat to Canada. The CBSA fulfills this mandate by providing integrated border services that support national security, public safety and economic prosperity priorities.

The criminal enforcement arm of the CBSA focuses on the detection, redress, and deterrence of contraventions of the CBSA's border legislation.[ 7 ] Criminal investigation under the Immigration and Refugee Protection Act (IRPA) involves the investigation and prosecution of those who commit offences such as misrepresentation, document fraud, and aiding/abetting of individuals committing immigration-related offences.

Canada is a preferred destination for many migrants, with a projected Gross Domestic Product growth of 3.0% in 2010[ 8 ] and a comprehensive social safety net and refugee determination process. Over 85 million people entered Canada at the various ports of entry (POEs) in 2009–2010. (Exhibit 1) The vast majority of these entered Canada on a temporary basis as a visitor, student or foreign worker.

Exhibit 1: People Entering Canada by Mode, FYs 2006–2007 to 2009–2010[ 9 ]

	2006-2007	2007-2008	2008-2009	2009-2010
Air	22,133,553	23,359,832	23,429,651	22,252,784
Highway	69,772,698	69,958,953	64,381,303	59,697,945
Marine	2,816,331	2,892,346	2,961,255	2,929,735
Rail	284,242	282,368	255,612	250,352
Total	95,006,824	96,493,499	91,027,821	85,130,816

While most people who come to Canada on a temporary basis leave Canada when they are required to do so, a small number remain illegally. In addition, a small percentage of migrants enter Canada using fraudulent travel and identity documents. Offences may also be perpetrated by both employers or immigration consultants who help migrants gain entry by fraudulent means. Furthermore, there are irregular migrants (e.g. Improperly Documented Arrivals) who enter Canada surreptitiously, both at and between ports of entry to either enter refugee claims or go underground. Such activities present serious challenges to the integrity of Canada's border legislation, the integrity of the immigration program, and to the safety and security of Canadians.

Overview of the CBSA Criminal Investigations Program

The CBSA Criminal Investigations Program investigates and recommends for prosecution significant cases of fraud and smuggling under the Customs Act, Customs Tariff, IRPA, Excise Act, Export and Import Permits Act and many of the additional 70 federal statutes that the CBSA administers. A criminal case involves the prosecution by the Crown under a public-law statute such as these Acts.[ 10 ]

The CBSA assumed responsibility for several criminal investigation activities related to the IRPA in 2006 when they were transferred from the Royal Canadian Mounted Police (RCMP) following a program review at the RCMP. The roles, responsibilities and accountabilities of the two organizations were detailed in a Letter of Intent in 2007.[ 11 ] Under this agreement, the CBSA was given primary responsibility for the investigation of a range of IRPA offences related to counselling misrepresentation, misrepresentation, document fraud, and aiding/abetting of individuals committing offences, including those involving commercial and corporate entities.[ 12 ] The RCMP retained responsibility for criminal investigation of offences under the Citizenship Act, the Canadian Passport Order and the Criminal Code, as well as for offences under the IRPA involving organized crime, national security and trafficking of persons.

The CBSA Criminal Investigations Division (CID) is situated within the Post-Border Programs Directorate of the Programs Branch, and each of the eight CBSA regions has a criminal investigations unit. Investigators investigate reports of unlawful activity, gather and analyze evidence through various means such as search warrants and interviews, arrest offenders, lay charges and provide assistance to the Public Prosecution Service of Canada (PPSC) with criminal prosecutions. Currently, Prairie (Calgary) and the Greater Toronto Area (GTA) regions have teams of investigators dedicated to offences under the IRPA.

Investigators partner with personnel from other government agencies and departments in the delivery of program activities:

• PPSC is a federal government organization that provides prosecution-related advice to CBSA investigators and prosecutes offences under the IRPA.
• The Operational Management and Coordination Branch of Citizenship and Immigration Canada (CIC) is responsible for coordinating all operational activities of the Department, including the activities of regional offices and Case Processing Units. The regional units work with the CBSA to identify potential cases and trends of immigrant fraud.
• The RCMP's Immigration and Passport Program works to combat and disrupt organized migrant smuggling and the trafficking of persons. The six Immigration and Passport Sections located across Canada work with the CBSA's criminal investigations units on investigations related to people smuggling and human trafficking.

Evaluation Purpose and Scope

The purpose of this evaluation was to examine the relevance, performance and efficiency of the Criminal Investigations Program related to the IRPA. This evaluation was identified as a priority in the 2009–2011 CBSA Risk-Based Multi-Year Evaluation Plan, which was approved by the Agency's Executive Evaluation Committee in July 2009.

The Program Evaluation Division, Internal Audit and Program Evaluation Directorate planned and conducted this evaluation study. The evaluation research was carried out between October 2009 and February 2010.

The evaluation focused only on those activities delivered by the CBSA. The scope of the evaluation is summarized in Exhibit 2.

Exhibit 2: Scope of the Evaluation

Included in the Evaluation	Excluded from the Evaluation
Criminal Investigations Program activities related to the IRPA	Criminal Investigations Program activities other than those related to the IRPA
Intelligence products and processes that supportIRPA-related criminal investigation activities	Inland Enforcement investigation activities
	Detention and Removals programs
	Computer Search and Evidence Recovery (CSER) Program

In consultation with key internal stakeholders, the evaluation team developed a logic model for the Criminal Investigations Program's IRPA-related activities. The following immediate and intermediate outcomes were identified:

• Increase in skills and knowledge of investigators;
• Strong, effective partnerships;
• Conviction rates consistent with program's objectives;
• Fair and effective investigative and enforcement process;
• Deterrence of offences committed under the IRPA; and
• Enhanced capacity to respond to offences committed under the IRPA.

The evaluation questions are provided in Exhibit 3.

Exhibit 3: Evaluation Questions

Evaluation Issue	Evaluation Questions
	Is the Criminal Investigations Program (IRPA) relevant?
Relevance	Is there a demonstrable and continued need for the Criminal Investigations Program (IRPA)?
	Is the program aligned to government priorities, federal roles and responsibilities and how does it contribute to departmental outcomes?
	Is the Criminal Investigations Program (IRPA) performing as expected?
Performance – Achievement of Expected Outcomes	How effective is the governance structure of the Criminal Investigations Program (IRPA)?
	Are the criminal investigations priorities established to achieve expected outcomes?
	Do the investigators have the skill and knowledge to effectively carry out the required investigative and related enforcement activities of the program?
	Does the Criminal Investigations Program (IRPA) have the tools needed to support its work?
	How successful is the program in developing and maintaining the partnerships needed to support and deliver the program?
	To what extent has the Criminal Investigations Program enhanced its capacity to respond to offences committed under the IRPA?
	Are the program's investigative processes fair and effective?
	To what extent do the CBSA's criminal investigation efforts support successful prosecution resulting in conviction?
	Have program activities led to deterrence of offences committed under the IRPA?
	Are criminal investigations activities related to the IRPA sufficiently resourced and is the allocation of resources aligned with high-risk areas?
	Are there more efficient and effective methods for delivering criminal investigation activities?
	Are there unexpected or unintended impacts from the delivery of the Criminal Investigations Program (IRPA)?

Evaluation Methodology

The following research methodologies were used:

Document and Data Review and Analysis

Evaluators reviewed key documentation including CBSA planning documents and reports, organizational charts, documents outlining roles and responsibilities, management reports and other internal correspondence regarding the governance structure of the Criminal Investigations Program and its IRPA-related activities. In addition, communication materials such as the CID Annual Reports, newsletters, and related media reports as well as ministerial correspondence were reviewed.

Data from internal CBSA systems and program areas were reviewed and analyzed, including statistics on the activities and results of the criminal investigations activities related to offences under the IRPA. Similarly, budget and expenditure data were reviewed to assess cost-effectiveness of program activities.

Literature Review

The evaluation included a review of academic papers and private organization submissions to various provincial and federal government bodies (e.g., recent submission by the Canadian Society of Immigration Consultants to the Ministry of Labour, Office of the Minister in Ontario on the protection of temporary foreign workers). The evaluation was also informed by a review of publicly available information from other countries that conduct similar activities, such as the United Kingdom, the United States and Australia.

In-depth Interviews with Key Stakeholders

One-on-one and group interviews were conducted (Exhibit 4) with 61 individuals.

Exhibit 4: Number of Interviewees

Interview Category	Number of Interviewees
CBSA HQ management	10
CBSA Regional management	29
Citizenship and Immigration Canada (CIC) management and staff	9
Royal Canadian Mounted Police (RCMP) management and staff	5
Public Prosecution Service of Canada (PPSC) management and staff	7
Private sector stakeholders	1
Total	61

Site Visits

Site visits were conducted in three regions.[ 13 ] These site visits enabled the evaluation team to examine the different approaches and models used within the various regions to deliver the program.

Focus Groups

The evaluation team conducted three focus groups at each of the three site visit locations. Each focus group was made up of four to six investigators whose primary responsibilities were the investigation of alleged offences under the IRPA. The input from these sessions contributed to the evaluation team's understanding of the operational context in which criminal investigation activities are carried out.

Evaluation Research Limitations

Criminal investigation budgets are decentralized and managed at a regional level. The evaluation accessed financial data based on cost centres. The cost centres are not aligned with the lines of business such as IRPA investigations and Customs Act investigations; consequently it was not possible to accurately isolate costs related to IRPA-only investigations.

The financial and performance data for FY 2009–2010 was being finalized as this report was being completed. As a result, not all figures contain FY 2009–2010 data. Performance and financial data for FY 2009–2010 was used in the figures and/or calculations where possible.

The Criminal Investigations Management System (CIIMS) is the core information system used by investigators to manage the program's cases. CIIMS was originally designed to support customs investigations. Immigration investigation needs are not fully met through this system, and the evaluation encountered data limitations in several areas. Consequently, it was not possible to determine if the cases pursued are those most likely to support the achievement of program outcomes and priorities.

Key findings - Relevance

Continued Need for the Program

Is there a demonstrable and continued need for the Criminal Investigations Program (IRPA)?

The need to attract more skilled workers, on both a temporary and permanent basis, has led to the expansion of worker related programs. The Temporary Foreign Worker Program is intended to ensure that Canadian workers are protected from competition from illegal migrants and that foreign workers are not exploited by employers and operators. Canada has seen an increase in the number of people admitted under temporary work permits. In 2006, 139,076 foreign workers entered Canada. By 2009 that number had increased to 178,640.[ 14 ]

The number of foreign students applying for permits to study in Canada has increased from 87,221 in 2005 to 120,405 in 2009. The overall application approval rate has remained fairly constant at 85 and 82% over the same period.[ 15 ]

The CEC was designed to facilitate the transition to permanent residency for eligible skilled workers with Canadian job experience and foreign nationals who are graduates of Canadian universities and colleges. While there were only 23 applications processed under this category in 2008, the numbers increased significantly in 2009 to 2,213 and in the first quarter of 2010, 1,007 applications had been processed.[ 16 ]

The threat of immigration fraud and the need to investigate and refer cases for prosecution are likely to continue or increase due to immigration trends and projections. In 2010, CIC plans to admit 240,000-265,000 immigrants to Canada along with 185,000-220,000 foreign workers and 85,000-95,000 foreign students.[ 17 ] Interview respondents for this evaluation stressed the importance of ensuring that potential offences related to foreign workers and students who apply to enter or stay in Canada are investigated and prosecuted where warranted.

Exhibit 5[ 18 ] demonstrates that charges were laid under the IRPA in 185 cases in 2009–2010, an increase over the 132 cases in which charges were laid in 2006–2007. This increase illustrates that criminal activity persists and continues to present a threat to the integrity of Canada's immigration system, Canadians and to migrants themselves.[ 19 ]	A Port Prosecution refers to a case of a single isolated incident that may occur at the POE and for which the evidence of the offence is available. Little follow-up is required in order to refer the case to the Crown for prosecution.[ 20 ]
	A Complex Case goes beyond a single incident and the evidence may not be readily available, and as a result may require more investigative resources and possibly the use of specialized investigative techniques and search warrants.[ 21 ]

Exhibit 5: Type and Number of Cases in Which IRPA Charges Were Laid by FY[ 22 ]

	2006-2007	2007-2008	2008-2009	2009-2010
Complex Case	91	125	25	36
Port Prosecution	41	90	258	149
Total	132	215	283	185

Alignment with Government Priorities, Federal Roles and Responsibilities, and CBSA Mandate

Is the program aligned with government priorities, federal roles and responsibilities, and how does it contribute to the CBSA's strategic outcomes?

The 2008 Speech from the Throne states that "Security ultimately depends upon a respect for freedom, democracy, human rights and the rule of law. Where these values are imperilled, the safety and prosperity of all nations are imperilled."[ 23 ] The Criminal Investigations Program (IRPA) directly supports the federal government priority of a safe and secure Canada by ensuring that those who pose a threat to the integrity of Canada's immigration laws are identified, investigated and referred to PPSC for prosecution.

Recent decisions rendered by the provincial court[ 24 ] in IRPA cases lend support to the need for investigation and prosecution of offences to contribute to the safety and security of Canada and its population. For example, in a 2007 decision handed down in the case of an individual charged under the IRPA for misrepresentation, the Court stated, "the public interest includes the issue of national security and international security. Canada must be seen as a nation that will not tolerate illegal immigrants. It must be seen as a nation that will protect the integrity of our national security."[ 25 ]

The Minister responsible for CIC has identified the fraud associated with third party immigration consultants as a priority and recently addressed this issue before the Standing Committee on Citizenship and Immigration. The proposed changes to the IRPA would create a new offence specific to the activities of third party intermediaries. The changes are anticipated to increase the number of referrals and place further pressures on the program. These changes also complement other current government immigration initiatives, such as refugee reform and the implementation of biometric tools for identification of visa applicants when they arrive at a POE in Canada.

While both the federal and provincial governments have roles and responsibilities for immigration under federal-provincial agreements, the IRPA is a federal statute and gives authority to the Minister responsible for the CBSA for the enforcement of the Act, including the authority to investigate, arrest, detain and remove those that commit related offences. There have been no challenges to the authority of the Minister with respect to the IRPA detailed in case law.[ 26 ]

The roles and responsibilities of the CBSA are established by the Canada Border Services Agency Act which states that the Agency "is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of legitimate persons and goods."[ 27 ] The investigation of criminal offences under the IRPA is aligned with the CBSA's obligation to support national security and public safety priorities as stipulated in the CBSA Act.

An agreement[ 29 ] between the CBSA and the RCMP was signed in early 2007, which delineated the CBSA and RCMP's investigative responsibilities with regards to the IRPA. The evaluation team reviewed the Letter of Intent, and concluded that the new responsibilities are generally consistent with the CBSA's border management mandate. In response to interview questions related to the division of roles and responsibilities and the ongoing need for the Criminal Investigations Program, three-quarters[ 30 ] of those who responded indicated that the roles and responsibilities detailed in the Letter of Intent fit with the CBSA's border and security mandate.

The Criminal Investigations Program's objectives of deterrence and enhanced capacity to respond to offences committed under the IRPA through investigation and prosecution, contribute to the realization of the CBSA's strategic outcome. As such, the rationale for the assumption of the IRPA responsibilities remains valid.

Key findings - Performance

Achievement of Expected Outcomes

How effective is the governance structure of the Criminal Investigations Program (IRPA)?

Interviewees working in regional Criminal Investigation, Inland Enforcement and Intelligence units were aware of the criminal investigations' mandate and objectives, and demonstrated a clear understanding of their respective roles and responsibilities in support of criminal investigation activities. Documents such as the CID quarterly newsletter and Annual Report, and information sessions delivered by CID and regional criminal investigations units all contributed to this understanding. Furthermore, some regions have provided threshold charts to POE staff to ensure that BSOs understand when it is necessary for them to contact criminal investigations units.

Some regional CIC managers noted that they were not clear on what criminal investigations units' duties were or that the units even existed. As per the CBSA-CIC MOU, the CBSA provides intelligence services to CIC. Consequently, information from CIC on potential IRPA contraventions is generally fed to the CBSA through regional intelligence units who then refer it to regional criminal investigations units, if necessary. In some regions, this may result in little interaction between regional CIC and criminal investigations units. CIC regional office staff's lack of awareness of the CBSA's roles and responsibilities may result in investigations units not receiving referrals that fall under their responsibility.

The NHCC is a senior management dispute resolution body that oversees joint CBSA and RCMP activities. According to the Committee's recent minutes and interviews conducted for this evaluation, few issues have been raised to date that relate to IRPA investigations. In general, regional criminal investigations units convene direct meetings with the RCMP for any issues that arise, such as their respective roles and responsibilities related to a specific investigation.

The Anti-Fraud Working Group[ 33 ] was created in 2007 and consists of representatives from the CBSA, CIC and Human Resources and Skills Development Canada (HRSDC).[ 34 ] The purpose of the working group is to identify and share strategic and targeted intelligence. In addition, the working group shares information on inland enforcement activities and investigations of cases involving fraudulent documentation or misrepresentation. The working group is also examining how to coordinate horizontal information sharing and reporting on anti-fraud activities, and what products can be developed to assist all regions.[ 35 ] The working group has served to facilitate linkages between the organizations playing a role in the prevention of immigration fraud, resulting in a better understanding of each other's roles and responsibilities.

Are criminal investigation priorities established to achieve expected outcomes?

The CID developed an assessment criteria tool in 2007–2008 to assist regional managers in prioritizing potential cases for investigation. While the program area tracks the number and source of referrals, it does not assess whether the types of referrals that ultimately lead to an investigation are aligned with the program's objective and priorities, other than identifying if the case was categorized as a complex case or port prosecution. Of the 4,268 leads received in 2009–2010 (Exhibit 6), 1,075 or 25.2% were opened as a case and investigated.[ 36 ] This resulted in charges being laid in 185 IRPA cases. Of these, 36 or 19.5% were complex cases and 149 or 80.5% were port prosecutions.

Do the investigators have the skills and knowledge to effectively carry out the required investigative and related enforcement activities?

Investigator positions are classified at the FB-05 group and level and therefore represent an opportunity for promotion for many within the FB group. Consequently, criminal investigations units typically draw investigators from the BSO ranks, as well as from Inland Enforcement or Intelligence areas. A greater percentage of individuals entering criminal investigations jobs have previous customs experience compared to previous immigration experience. However, the number of incoming investigators with experience in both areas is increasing.[ 37 ] Also, some regions (e.g., Prairie) have set up a dedicated team for IRPA investigations to fast-track the building of capacity and knowledge.

A majority of interviewees indicated that the IRPA is a complex legislation and challenging in terms of understanding the full extent of the CBSA's authorities and powers under the Act. Investigators are required to possess an extensive knowledge of the criminal investigative process (e.g., ensure that chain of evidence is admissible in court, knowing how and when to prepare a search warrant) as well as legislative authorities and legal obligations. Interviewees and focus group participants indicated that complex cases by their very nature require a higher level of skill in the use of search warrants and production orders.[ 38 ] Furthermore, jurisprudence related to the Act is relatively new and still developing. As a result, the CBSA has to invest additional time and effort to ensure that cases going before the court are well documented and able to withstand legal challenges.

CID has not conducted an analysis to determine whether investigators' current skills and knowledge are adequate to support the Program. Public prosecutors interviewed for the evaluation indicated that investigator skills and knowledge with respect to the preparation of court briefs have improved considerably. They, along with CBSA regional managers and directors, also identified the need to enhance the investigators' skills and knowledge in the areas of criminal law, interviewing techniques, search warrant preparation, and the conduct of forensic investigations.

While the Training and Learning Directorate is in the process of finalizing a learning path for investigators, this tool will build only on those courses that currently exist or that are in the process of being developed to address gaps already identified. At the time of the evaluation, there were no plans to identify gaps that may occur. As such, the learning path will not include training offerings that address potential future gaps.[ 39 ]

The total number of investigator positions nationally for fiscal 2008–2009 was 210. Between 2007–2008 and 2009–2010, 129 investigators took the investigator training course.

All participants who filled out the September 2009 and March 2010 course assessment forms[ 40 ] indicated that their expectations for the course were met. In addition, they felt confident or very confident about using the acquired knowledge and competencies upon returning to work. The course assessment forms also identified a number of issues that have yet to be addressed. For example, participants suggested a lengthier IRPA section and a lengthier Courtroom Simulation component.[ 41 ]

Focus group participants who had previously attended this course would have liked to see more of their case-specific questions answered and more IRPA content added to the course, with particular emphasis on investigator powers and authorities, and search warrants. No post-training assessments have been conducted on the ITC to determine its impact on job performance, and whether the investigator training course is providing investigators with the necessary skills and knowledge to be effective investigators.

According to regional interviewees, the lack of distinction between regulatory and criminal sanctions under the IRPA and the implications associated with each are not clearly understood by the BSOs.[ 42 ] When a BSO is conducting an interview with an individual to determine admissibility or is considering regulatory sanctions against an individual, there is no requirement to caution the individual. However, if there are reasonable grounds to believe that a criminal offence has been committed, the individual interviewed must be cautioned before the interview commences. According to the PPSC prosecutors interviewed for the evaluation, the lack of a caution prevents cases from going forward for prosecution "on a regular basis".[ 43 ]

Another issue that these PPSC Crown prosecutors encounter "regularly" is insufficient note-taking at an admissibility interview where a BSO's regulatory interview of an individual is deemed to be useful in a criminal prosecution. In such cases, the Crown will seek to introduce, through a voir dire[ 44 ] hearing, the answers/statement given by the individual to the BSO for voluntariness.[ 45 ] In this hearing, the Crown will request that the BSO testify from his or her interview notes (containing the answers/statement) that have been taken during the interview. Any gaps in the interview notes decrease the likelihood that the answers/statements will be deemed admissible in Court. The evaluation methodology did not address this issue and therefore, could provide no evidence to show that low quality interview notes had led to a dismissal of IRPA charges.

CBSA HQ management noted that new BSOs do not receive any training in the role of criminal investigations, nor on the impact of their own work on cases that go to prosecution (e.g., note-taking) in the Port of Entry Recruit Training (POERT). To compensate for this, most regions include a criminal investigations awareness session within the regional "In Service" training schedule, as time and resources permit.

Does the Criminal Investigations Program (IRPA) have the tools needed to support its work?

In its 2009–2010 Business Plan, CID identifies the system as a key challenge to the success of the program moving forward. All investigators, managers and directors at HQ and in the regions identified challenges with CIIMS.

The CIIMS is available in all regions. The 2008–2009 CID Annual Report makes references to efforts underway to enhance CIIMS functionality. The enhancements, such as "read-only" access for other CBSA program areas such as Intelligence, were in response to an OAG report that identified the need to use both intelligence and investigations information in the assessment of persons seeking access to various trusted traveller programs (e.g., NEXUS, Free and Secure Trade).[ 46 ] These enhancements are yet to be completed. As a result, CID runs an estimated 100 names through CIIMS monthly in response to requests from other program areas in the CBSA.

As a case management system, CIIMS lacks functionality. It is not possible to track case resolution and attribute it to the criminal investigation process as a way of identifying any problems or potential problems with the process itself or how the investigation was conducted. For instance, if an investigative file that is rejected by PPSC or does not result in a conviction could be attributed to activities within the criminal investigative process, corrective action could be taken and allow for continuous improvement. Furthermore, the report-generating capability of CIIMS is rudimentary and as a result, data must be manually extracted from CIIMS, requiring significant time and effort on the part of CID personnel.

A 2009 report produced by the CBSA Technology Branch on the CIIMS re-design concluded that CIIMS needed to be replaced due to the ageing/non-standard platform on which it is built, the increased volumes of requests for information that is cumbersome to manage from a systems perspective and the increased functionality required as a result of the additional responsibilities taken on by the Criminal Investigations Program.[ 47 ]

Where technology is available, it is increasingly the expectation of prosecutors and the courts that statements will be either audio- or video-recorded to clearly demonstrate that there is no coercion associated with the interview. When taken in that way, the court is in a much better position to assess the voluntariness of the statements because the judge can observe or at least hear the interviewee to assess his or her demeanour. Regional CBSA staff and PPSC prosecutors cited poor quality of electronic recording of interviews and interview transcripts not being professionally transcribed as reasons for compromised investigations and evidence not being admissible in court.

The Operations and Comptrollership branches have been working on a "Model Office" for investigators and an equipment needs analysis. Both the needs analysis and the "Model Office" will reflect facility and equipment requirements for regional investigation units and will include such things as equipped interview rooms, communication equipment and secure vehicles for investigators transporting offenders.

How successful is the program in developing and maintaining the partnerships needed to support and deliver the program?

The criminal investigations units initiate the criminal investigations through referrals. For example, a referral could come from a BSO who has doubts about the validity of the identity of a foreign national who has arrived at the POE. A referral could come from an inland enforcement officer who advises regional investigation units of a foreign national who has re-entered Canada, usually surreptitiously, although they were not authorized to do so as they had previously been issued a removal order. The number of referrals has increased over the last four years from just over 1,000 in FY 2005–2006 to over 4,200 in FY 2009–2010 (Exhibit 6).[ 48 ] The primary source of referrals for the last three years has been the POEs.

The document review and interview data indicate that no referral protocol exists. [ 49 ]As a result, referrals regarding potential criminal activity related to the IRPA may be referred to any of the following: regional Intelligence or Inland Enforcement units, or external partners, such as the RCMP. It is unclear as to whether all referrals ultimately end up going to a regional investigation unit. Since the majority of referrals come from BSOs at POEs, regions such as Quebec and the GTA have provided a threshold chart to BSOs that indicates when they should refer a case to criminal investigations as opposed to passing on the information to Intelligence or Inland Enforcement units.

Exhibit 6: Sources of all Criminal Investigations Referrals FY 2009–2010[ 50 ]

Sources of Referrals	Number of Referrals
CBSA - Port of Entry	2,674
CBSA - Inland Enforcement	264
CBSA - Intelligence	354
CBSA - Customs (Compliance Verification)	34
Citizenship and Immigration Canada	57
Foreign Border Agency	67
Informant	182
Internally Generated / Joint Force Operation	205
RCMP	102
Other Police	87
Other	242
Total	4,268
Number of Cases Opened	1,075 (25.2%)

Currently, there exists only an ad-hoc feedback mechanism to the referral sources on the utility of the information they provided to the criminal investigations units. According to internal and external interviewees who have made referrals, they are often informed of the status of these referrals (e.g., not investigated, currently being investigated, being pursued by PPSC) by chance or due to their own follow-up. They would also like to receive feedback on the quality of information they provided in the referral.

The CBSA consults and shares information with partner organizations such as CIC and PPSC on an annual basis in regards to general immigration fraud trends. A joint priority setting exercise could help the partners identify the most effective strategy to address challenges to the integrity of the IRPA and the immigration program itself. Marriages of convenience can perpetuate fraud in that the married foreign national who obtained entry into Canada through fraudulent means can sponsor relatives for entry into Canada. Investigating and prosecuting such cases could provide a measure of deterrence. However, while criminal investigations units pursue such cases, the process is challenged by the difficulty in finding sufficient evidence in support of prosecution.

Under the Privacy Act, personal information can only be disclosed to those organizations recognized as having "investigative body status".[ 51 ] The Agency has this status for customs-related investigations and is currently working with the Department of Justice to obtain this status for investigations under the IRPA.[ 52 ] Until it is granted, information sharing with other government departments will remain a challenge. The implication for not having this status for IRPA-related cases is that the process to obtain the information is time-consuming, the information may not be released, and the case subsequently not referred for prosecution. Although this delegation will assist the program area in obtaining information from some government departments, it will not resolve information sharing issues with departments such as Human Resources and Skills Development Canada (HRSDC).

The HRSDC Act includes its own privacy clause and as such, the Privacy Act does not apply. Currently, the Agency works with HRSDC on a case-by-case basis. For example, in a case of suspected fraud related to an application for a Labour Market Opinion,[ 53 ] HRSDC will release the information filed by the employer under investigation. The CID does not track the number of cases in which information from HRSDC was required. As a result, the evaluation could not determine the magnitude of the issue or impact on specific cases.

To what extent has the Criminal Investigations Program enhanced its capacity to respond to offences committed under the IRPA?

In the first year of conducting IRPA-related investigations (FY 2006–2007), the CBSA laid 212 charges under the Act. By FY 2009–2010, the number had increased by 208 charges to 420 (Exhibit 7).[ 54 ]

The priorities presented in the 2009–2010 CID Business Plan related to the IRPA were to "focus immigration enforcement more on complex immigration fraud cases of human smuggling, document fraud and counselling misrepresentation."[ 55 ] However, in 2009–2010 only seven charges were laid under section 117(Organizing entry into Canada – Smuggling) representing 1.6% of the charges laid. Charges under section 126 (Counselling Misrepresentation), went from 45 in 2008–2009 to 23 in 2009–2010 and represented 5.4% of the charges laid, with all but two of the charges being laid in port prosecution cases. Section 122 charges (document fraud) went from 226 in 2008–2009 to 147 in 2009–2010. While the number of charges laid in the three priority areas decreased slightly in 2009–2010, in comparison to the numbers in 2008–2009, the relative percentage that these areas represented of the total number of charges laid changed slightly going from 42.6% in 2008–2009 to 41.5%.

As illustrated in Exhibit 7, 47.0% of the charges laid in 2009–2010 were laid under section 124(1) (a) (Contravention of the Act) and section 127 (Misrepresentation). Section 124(1)(a) charges include offences ranging from a person who has been issued a previous deportation order and has unlawfully re-entered Canada, to a foreign national who was employed by an employer who contravened the Act.

In 2009–2010 the number of charges laid in complex cases for offences related to employment of a foreign national in a capacity not authorized[ 56 ] increased by 190.0% (from 10 charges to 29) over the number of charges in 2008–2009. In addition, in 2009–2010 the number of charges laid in complex cases under the sections related to documents and document fraud[ 57 ] increased 191.7% (from 12 charges to 35) from 2008–2009.

Exhibit 7: Number of IRPA Charges Laid by Section of IRPA and FY[ 58 ]

Section of IRPA [ 59 ]	FY 2006-2007			FY 2007-2008			FY 2008-2009			FY 2009-2010
	Port Prosecution	Complex Case	Port Prosecution		Complex Case	Port Prosecution		Complex Case	Port Prosecution		Complex Case
117	4	3	2		6	5		2	3		4
118	1		1		2
119		1
122	15	24	54		69	214		12	112		35
124(1)(a) [ 60 ]	24	74	68		84	189		11	104		25
124(1)(b)	3	2			7	1
124(1)(c)		12			1	1		10			29
126	2	15	11		23	45			21		2
127	16	8	38		38	112		22	59		12
129(1)(c)			1
129(1)(d)		1	11		1	8		2	6
131	3	4	5		4	16		1	9		1
Blank						2			4
Total number of charges	68	144	191		235	593		60	318		108

Interestingly, while the RCMP retained responsibility for the investigation of human trafficking, the CBSA laid four charges under section 118 in FY 2006–2007 and 2007–2008. According to CID management, it is likely that this occurred as a result of applying the "deception" component of this section to a case that was more likely a human smuggling case and not an actual human trafficking case.

Exhibit 8: Number of Unique Cases[ 61 ] in Which IRPA Charges Were Laid by FY

	FY 2006-2007	FY 2007-2008	FY 2008-2009	FY 2009-2010
Complex Case	91	125	25	36
Port Prosecution	41	90	258	149
Total	132	215	283	185

An analysis of the 2009–2010 data suggests that investigation activities are shifting somewhat to focus on complex cases and better reflect program priorities. While a significant proportion of charges are being laid in port prosecution cases in comparison to complex cases, the percentage of complex cases increased in 2009–2010. (Exhibit 8) In 2008–2009, complex cases represented 8.8% of the total number of cases in which IRPA charges were laid. In 2009–2010 that percentage had increased to 19.5%.

In the past, CID's Annual Business Plans provided targets for the number of port prosecution and complex cases to be met in the upcoming fiscal year. Regional criminal investigations units continually surpassed the targets set by CID for both complex cases and port prosecutions. CBSA interviewees both in the region and at HQ indicated that regions often focus on easy port prosecutions to "keep the numbers up" and that these cases do not necessarily reflect program priorities. To prevent this, CID decided to discontinue the use of targets for port prosecutions, but to retain targets for complex cases to be conducted in 2009–2010.[ 62 ] Targets for complex cases have been retained to send a clear message to the regions of the importance of complex cases.

In 2008–2009, 88 criminal investigations cases were opened that could be related to the CEC program (Exhibit 9).

Exhibit 9: CEC-Related Cases Opened and Concluded, Charges Laid and Guilty Convictions FY 2008–2009[ 64 ]

2008-2009	# of Criminal Investigations Opened	# of Cases Charges Laid	# of Cases Concluded	# of Cases with Guilty Conviction
Immigration Fraud - employment	55	7	1	1
Immigration Fraud - student	7	0	0	0
Immigration Fraud – Consultant*	26	2	1	1
TOTAL	88 [ 65 ]	9	2	2

*Note: Not all consultant files are linked to student or employer/worker fraud cases.

With the significant increase in the number of applications in this category received by CIC in FY 2009–2010 and the first quarter of FY 2010–2011, these numbers are likely to increase.

Are the program's investigative processes fair and effective?

Appeals to rulings in criminal investigations cases are the responsibility of the PPSC. According to the CID, there are no known cases in which IRPA convictions have been overturned on appeal. There is one case in which a charge under the IRPA section 117 (Organizing entry into Canada – Smuggling) against a humanitarian worker was dropped after consideration of underlying policy intent relating to this section of the Act. As a result, a new CBSA policy for laying of charges under section 117 was issued.[ 66 ]

To what extent do the CBSA's criminal investigation efforts support successful prosecution resulting in conviction?

Exhibit 10: IRPA Concluded Cases FY 2006–2007 to FY 2009–2010[ 67 ]

	FY 2006-2007		FY 2007-2008		FY 2008-2009			FY 2009-2010
	Port	Complex Case	Port	Complex Case	Port	Complex Case		Port	Complex Case
# of Cases Concluded[ 68 ]	34	62	61	121	217	23		188	42
# of Cases With at Least 1 Guilty Verdict	29	57	57	114	194	20		163	39
Conviction Rate	85%	92%	93%	94%	89%	87%		87%	93%

As per Exhibit 10, the numbers of complex cases and port prosecutions concluded in 2007–2008 as compared to those concluded in 2008–2009 are quite different. The difference is likely a result of the change in the definitions of port prosecution and complex case that came into effect in FY 2007–2008.

Since the IRPA does not have a statute of limitations for summary offences,[ 69 ] the Criminal Code provision of a six months statute of limitations applies.[ 70 ] In comparison, the statute of limitations is three years for the Customs Act and eight years for the Income Tax Act.

Because immigration offences can occur at the time statements are made on the visa applications filed at overseas missions, there can be a considerable time lag between the time the offence is committed and when the CBSA can begin its investigation. This may require the CBSA to move quickly with the investigation or it may drop an investigation due to lack of sufficient time. As a result, defaulting to the Criminal Code's statute of limitations often confines the CBSA enforcement options to regulatory sanctions (e.g., issuance of a removal order). The number of cases that were dropped in relation to the statute of limitations is not known.

Have program activities led to deterrence of offences committed under the IRPA?

It was noted in several stakeholder interviews that due to a lack of case law, penalties (fines and incarceration) tend to be at the lower levels allowed under the IRPA. Exhibit 11 provides the value of fines and the number of incarceration days for the last three years. While the amount of fines payable have increased somewhat over the last three years, prison sentences have gone up significantly – with approximately 55% more in 2008–2009 compared to the previous year. This increase may be attributable to the development of jurisprudence under the IRPA, and to criminal investigations activities focusing on cases that are seen by the courts as a greater threat to the integrity of the IRPA.

Exhibit 11: IRPA Penalty Information for Concluded Cases[ 71 ]

Year:	Number of Cases Concluded	Fines Payable ($)	Incarceration (Days)
2006-2007	96	14,700	6,051
2007-2008	182	94,250[ 72 ]	16,601
2008-2009	240	20,162	25,742

One of the performance indicators used by the program to assess whether program activities lead to deterrence of offences is the number of repeat offenders. From 2006 to 2009, 240 individuals who had previously been issued a removal order returned to Canada without authorization and were subsequently charged and prosecuted for the offence.[ 73 ] Of the 240, only 21 or 8.8% had previously been charged and prosecuted under the IRPA. This number does not account for individuals who were under a removal order, returned without authorization and were removed again without criminal charges being laid, nor does it account for those who were charged by another law enforcement agency such as the RCMP.

Of the total number of charges laid in IRPA cases in FY 2009–2010, 67.9% of the port prosecution cases and 32.1% of the complex cases had charges laid summarily.[ 74 ] (Exhibit 12) While the ultimate decision on how a case will proceed, either summarily or by indictment, rests with the PPSC, summary convictions may act as less of a deterrent compared to cases where charges were laid by indictment as the penalties associated with summary convictions are lower.

Exhibit 12: IRPA Summary Charges and Indictments by Type of Case and FY

How Charges Proceeded	FY 2007-2008		FY 2008-2009		FY 2009-2010
	Port Prosecution	Complex Case	Port Prosecution	Complex Case	Port Prosecution	Complex Case
Summary	118	136	405	32	180	85
Indictment	52	70	131	19	67	16
Unknown	21	29	57	9	71	7
Total	191	235	593	60	318	108

External partners interviewed stated that CID needs to publicize its successes to potentially deter would-be offenders. In 2009–2010, criminal investigation units concluded 230 cases. Thirty-two media articles from April 1, 2009 to April 1, 2010 mentioned the CBSA in the context of laying criminal charges or doing investigative work under the IRPA. Of these 32 articles, only eight[ 75 ] specifically attribute the CBSA criminal investigation activities with the charging and prosecution of offenders. None of the articles found reflect negatively on the activities of the CBSA. Interviewees were clear that more communications on the CBSA successes through such activities as media releases and publicity campaigns directed at affected communities would make a significant contribution to deterring the commission of offences under the IRPA.

The evaluation found that other countries have implemented high visibility campaigns to publicize their success. For instance, starting in January 2008, the UK Border Agency (UKBA) ran a three-week radio and newspaper campaign to build awareness of the new penalties associated with employing illegal workers.[ 76 ] UKBA noted that advertising and promotion campaigns are an important means to "deter illegal working and smuggling and promote legal compliance".[ 77 ] In the same year, the UKBA arrested 6,050 suspected immigration offenders, an increase of approximately 20% on 2007.[ 78 ] In addition, it also delivered 2,250 successful prosecutions and sanctions, a 40% increase on 2007 results.[ 79 ] The evaluation could find no evidence to directly link these results to the media campaign.

Demonstration of Efficiency and Economy

Are criminal investigations activities related to the IRPA adequately resourced and are the allocation of resources aligned with high-risk areas?

It is not possible to break out expenditures associated with IRPA investigations from other criminal investigation activities. The Criminal Investigations Program is largely funded through A-base allocations. In FY 2005–2006, prior to assuming the IRPA investigations responsibility, the CBSA spent $14,766,601 on criminal investigations. By FY 2008–2009, that expenditure had increased to $21,623,323 (Exhibit 13), an increase of 46.4%. This expenditure increase is largely due to two factors. Firstly, approximately 17% of the increase was as a result of funds received through the CEC initiative in anticipation of increased levels of immigration fraud. Secondly, funds were allocated and expended as a result of the FB collective agreement and the re-classification of investigator positions to FB-5 group and level. These fund allocations accounted for approximately 21% of the total increase in expenditures.[ 80 ]

Exhibit 13: Criminal Investigations Program – Total Expenditures – All Units[ 81 ]

	2005-2006	2006-2007	2007-2008	2008-2009
O&M	2,217,309	1,741,765	2,055,045	2,716,905
Salary	12,549,292	11,911,169	12,824,148	18,906,418
Total	14,766,601	13,652,934	14,879,193	21,623,323

In FY 2005–2006, the regions accounted for 85.0% of the total expenditures for criminal investigations activities. By FY 2008–2009, that percentage had risen to 90.6%. Alternatively, HQ program expenditures went from 15.0% to 9.4% of total expenditures over the same time frame. (Exhibit 14) Exhibit 15 shows regional expenditures by specific region.

Exhibit 14: Criminal Investigations Program - Total Expenditures by FY, and Region and HQ [ 82 ]

	2005-2006	2006-2007	2007-2008	2008-2009
HQ	3,090,366	2,397,248	2,484,844	2,778,031
Regions	11,676,235	11,255,686	12,394,349	18,845,292
Total	14,766,601	13,652,934	14,879,193	21,623,323

Exhibit 15: Criminal Investigations Program - Total Expenditures by Region and FY[ 83 ]

	2007-2008	2008-2009
Quebec	3,104,702	5,050,902
Northern Ontario	750,969	1,007,848
Windsor-St.Clair	787,849	1,331,246
Niagara-Fort Erie	477,425	947,645
Greater Toronto Area	3,095,444	4,187,590
Prairie	1,726,429	2,128,995
Pacific	2,437,070	2,900,637

In FY 2007–2008, the Agency laid charges in a total of 487 cases (Exhibit 16). In the same year, salary and O&M expenditures for the regions, where the investigations activities are carried out, totalled $12,394,349.[ 84 ] This represents an average cost of $25,450 for each case in which charges were laid. In comparison, in FY 2008–2009, the regional expenditures were $18,845,292 and the Agency laid charges in 582 cases at an average cost of $32,380 per case, representing a 27.2% increase in cost per case. Since the FB conversion raised program expenditures by 21%, the actual overall cost per case has increased over the time period. However, there are significant regional variations in the average cost per case. (Exhibit 17) Three regions exceeded the average cost: Quebec, Windsor–St. Clair and Prairie. The cost per case decreased between 2007–2008 and 2008–2009 in Northern Ontario, Niagara–Fort Erie and the Greater Toronto Area regions.

Exhibit 16: Total Number of Unique Cases in Which Charges Were Laid and Average Cost per Case by FY[ 85 ]

Fiscal Year:	# of Cases in Which Charges Were laid	Average Cost per Case
2007-2008	487	$25,450
2008-2009	582	$32,380

Exhibit 17: Cost per Unique Case in Which Charges Were Laid By Region and FY[ 86 ]

Region	FY 2007-2008			FY 2008-2009			Change	Change in %
	# cases in which charges were laid	Total expenditures($)	Cost per case	# cases in which charges were laid	Total expenditures($)	Cost per case	Increase or Decrease($) per case	Increase or Decrease over Previous Year per case
Quebec	91	$3,104,702	$34,118	81	$5,050,902	$62,356	$28,238	82.8%
Northern Ontario	49	$750,969	$15,326	68	$1,007,848	$14,821	-$505	-3.3%
Windsor-St.Clair	60	$477,425	$7,957	67	$1,331,246	$19,869	$11,912	149.7%
Niagara-Fort Erie	48	$787,849	$16,414	79	$947,645	$11,996	-$4,418	-26.9%
GTA	87	$3,095,444	$35,780	122	$4,187,590	$34,325	-$1,455	-4.1%
Prairie	31	$1,726,429	$55,691	35	$2,128,995	$60,828	$37,395	9.2%
Pacific	85	$2,437,070	$28,671	85	$2,900,637	$34,125	$5,454	19.0%

In addition, the cost per case is not broken down by type of case (i.e., port prosecution and complex case). A focus on complex cases would increase the cost per case, as such cases often require at least two investigators and can take at least one year to complete. However, in the regions that experienced an increase in cost per case, the numbers of complex cases in which charges were laid decreased over the same time period. For example, in 2007–2008 the Quebec region laid charges in 23 complex cases; in FY 2008–2009 charges were laid in 18 cases. Similarly, in the Windsor–St.Clair region charges were laid in six complex cases in FY 2007–2008 and in three complex cases in FY 2008–2009, and in the prairie region the number went from eight in FY 2007–2008 to five in FY 2008–2009.

While the number of cases in which charges have been laid under the IRPA has increased significantly since 2006, over the last four years the number of investigations and cases in which charges have been laid under the Customs Act has been in the range of 250-350 cases. (Exhibit 18) The overall proportion of port prosecutions versus complex cases under the Customs Act shifted in 2008–2009 in comparison to FY 2007–2008; in 2007–2008 port prosecutions represented 83.6% of the cases in which charges were laid under the Customs Act. By FY 2008–2009, that percentage had risen to 88.5%; however, it decreased slightly in 2009–2010 to 84.7%. This decrease is likely due in part to a focus on the "easier" cases to meet targets. It is likely also an indication of the decreased capacity to take on complex customs cases, such as trade fraud.

Exhibit 18: Total Number of Unique Cases in Which Charges Were Laid by Legislation, Type of Case and FY

	FY 2006-2007		FY 2007-2008		FY 2008-2009		FY 2009-2010
	Port	Complex Case	Port	Complex Case	Port	Complex Case	Port	Complex Case
IRPA	41	91	90	125	258	25	149	36
Customs Act	290	55	225	44	294	38	204	37

CBSA regional management indicated that their primary question for deciding to pursue a potential charge is whether it would be in the public's interest to move forward with a prosecution.[ 88 ] Since the vast majority of those being charged with a criminal offence under the IRPA are foreign nationals, it could be argued that it may be more in the public's interest to have the offenders removed rather than incur costs associated with the investigation, court process and possible prison term. Removal costs vary from $1,050 to $15,000 per case depending on the need for escort and the destination.[ 89 ] The average cost per day for a prison inmate ranges from $170-$200.

CBSA regional management indicated that the majority of the charges against Canadians are related to unlawful or unauthorized employment of foreign nationals, section 124(1)(c) and document offences related to human smuggling, section 117. Canadian citizens figure in 10% to 28% of their caseloads. Cases against Canadian citizens tend to be complex cases. Furthermore, criminal investigation is the only avenue open in cases involving Canadians as regulatory sanctions such as removal cannot be applied to a citizen.

Are there more efficient and effective methods for delivering criminal investigations activities?,

The Prairie Region's criminal investigations unit is currently pursuing a case with the CBSA Intelligence unit and the RCMP using the Major Case Management (MCM) approach.[ 90 ] While this approach requires more than two investigators working on the case,[ 91 ] their involvement is not full-time, allowing them to work on other investigations concurrently. The unit believes that this approach will decrease to approximately half the time needed to investigate a complex case. CID supports the MCM approach for complex case investigations as they involve document fraud, misrepresentation and counselling misrepresentation, locating numerous witnesses, and tracing financial payments and transactions.

A project team in the Pacific Region is currently made up of five investigators and an intelligence analyst.[ 92 ] The project provides a single point of contact for partners. On initial project start-up, referrals were analyzed and the top five referrals as identified by the analyst were selected for investigation. At the time of the evaluation the resulting investigations are ongoing. The process for ongoing case selection has not been identified nor has a decision been made as to whether the project will continue.

Are there unexpected or unintended impacts from the delivery of the Criminal Investigations Program?

According to CBSA and RCMP regional interviewees, when a case is initially opened, it is not known how it will evolve. The CBSA has investigated four cases under Section 118 (Trafficking in persons) ― cases that technically fall under authority of the RCMP.

The Letter of Intent defines "organized crime", using the Criminal Code definition.[ 93 ] Currently, there is variation in the interpretation of the definition amongst RCMP detachments, which leads to confusion among officers and overlapping activities. Senior management from both CID and RCMP noted that this confusion is a result of the broad Criminal Code definition of "organized crime" and that, for the purposes of IRPA investigations, the term should apply only to those cases that require highly specialized police techniques, such as wire taps and certain kinds of surveillance.

Key Conclusions, Recommendations and Management Response

Overall, the evaluation found that the Criminal Investigations Program (IRPA) is a key element in ensuring the integrity of Canada's immigration program and its border legislation. It supports the federal government priority of a safe and secure Canada by ensuring that those who pose a threat to the integrity of Canada's immigration laws are identified, investigated and prosecuted. In addition, the investigation of criminal offences under the IRPA is a clear responsibility of the CBSA and the activity contributes to the Agency's strategic outcome of ensuring that Canada's population is safe and secure from border-related risks. Roles and responsibilities between partner organizations (the CBSA, CIC, PPSC, and RCMP) are consistent with the mandates of each organization and are defined in related MOUs and agreements.

The CBSA has made solid progress since it took over the responsibility for criminal investigations of IRPA offences in 2006–2007. The number of referrals to the criminal investigation units from all sources has increased two-fold. The number of charges laid increased 40.2% over four years from 2006–2007 to 2009–2010.[ 94 ] The conviction rates for the cases brought forward for prosecution have been consistently high at around 90%. In FY 2005–2006, prior to assuming responsibility for IRPA investigations, the CBSA spent $14,766,601 on criminal investigations. By FY 2008–2009, that expenditure had increased to $21,623,323, an increase of 46.4%; however, 17% represents an increase in resources as a result of the CEC initiative and 21% is a result of the FB conversion.[ 95 ] The actual proportion of the budget dedicated to IRPA investigations and prosecutions is not known.

No detailed analysis has been conducted to determine the impact that IRPA investigations have had on other criminal investigations activities. Interviewees acknowledge that there continues to be a mindset of wanting to meet or exceed investigation targets provided by CID. In other words, efforts are not always being focused on the priorities as outlined in the Business Plan. The evaluation noted that the program faces challenges in realizing their vision, most notably in the areas of training, performance measurement and the system and tools to support its work.

Public prosecutors and CBSA regional managers and directors identified the need to enhance investigators' skills and knowledge in the areas of criminal law, interviewing techniques, securing and executing search warrants and forensic investigations. In addition, interviewees and focus group participants indicated that complex cases by their very nature require a higher level of skill in these areas. While the CBSA Training and Learning Directorate is in the process of finalizing a learning path for investigators, this tool will only be in relation to existing courses, and by extension, does not take into account gaps that may exist in the current training for investigators.

Key performance indicators for the program are the number of cases referred to the PPSC for prosecution, the number of cases in which the CBSA lays charges and the conviction rate. In addition, the number and sources of referrals are collected and tracked. It is not possible, however, to link a case to a level of threat or risk. In addition, the citizenship[ 96 ] of a potential offender or the immigration program under which the suspect may have applied are not tracked. This makes it difficult to determine whether the CBSA is pursuing the "right" cases and whether the cases in fact serve to support the integrity of the immigration program.

In light of these findings, the evaluation recommends that:

Recommendation 1: The Programs Branch develop and implement a rationale and strategy for moving forward. The strategy should include a detailed implementation plan, address the issues noted in this report and include the following:

• An analysis of the impact that the new focus will have on other criminal investigations activities;
• A governance model that would facilitate partnerships and information exchange with internal and external delivery partners;
• A performance measurement framework to ensure that sufficient information is available for reporting on and monitoring program activities and related budgets;
• A training needs analysis to identify knowledge and skill requirements both for investigators and BSOs; and
• A case risk profile to assist regions in their case selection to ensure that high-risk cases are pursued.

Subject to approval by the Programs Standing Committee, the case risk profile, governance structure and performance measurement framework will be rolled out during fiscal year 2011-2012. The strategy will include a roll-out plan for specific training products; this roll-out schedule will be dependent on results of the training needs analysis, availability of training products, efforts required to develop new products, as well as available funding.

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Enhancements to the system have been previously identified. For example, a 2007 OAG report recommended that other CBSA areas have access to the investigation database to facilitate the use of both intelligence and investigations information in the assessment of applicants to various trusted traveller programs. The preliminary enhancements planned or underway include additional "read-only" access for other CBSA program staff, improved search options, updates to current drop-down lists and addition of new fields. Indeed, in its 2009–2010 business plan, CID identifies the system as a key challenge to the success of the program moving forward. A report produced by the CBSA Technology Branch supports this position and concludes that there is a compelling rationale to replace CIIMS.

In light of these findings, the evaluation recommends that:

Recommendation 2: The Programs Branch enhance or replace CIIMS to better support the collection and generation of program performance information.

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In 2009–2010, criminal investigation units concluded 230 cases. However, in 2009–2010, there were only eight media articles highlighting four unique cases that resulted in criminal convictions under the IRPA, which specifically credit CBSA criminal investigations activities.

Interviewees were unanimous in voicing the opinion that communicating results of the program through media and stakeholder outreach and raising awareness in affected communities in Canada and abroad would contribute to the program outcome of deterrence. They also noted that achievement of the program outcome of deterrence of offences committed under the IRPA is currently impaired by the lack of communication of program results.

Border agencies in other countries, such as the UK Border Agency, have recognized the importance of publicity campaigns as a means to deter immigration fraud. For example, in 2007–2008, to "deter illegal working and smuggling and promote legal compliance",[ 97 ] it ran a media campaign to build awareness of the new penalties associated with employing illegal workers. No information was available that linked the media campaign to deterrence.

In light of these findings, the evaluation recommends that:

Recommendation 3: The Programs Branch work with the Communications Directorate to develop and implement a communication strategy for the Criminal Investigations Program aimed at deterring criminal offences committed under the IRPA.

Appendices

Appendix A: Abbreviations and Acronyms

Abbreviation/Acronym	Definition and Description
CEC	Canadian Experience Class
CIC	Citizenship and Immigration Canada
CID	Criminal Investigations Division
CIIMS	Criminal Investigations Management System
HRSDC	Human Resources and Skills Development Canada
IRPA	Immigration and Refugee Protection Act
ITC	Investigator Training Course
MCM	Major Case Management
NHCC	National Headquarters Consultative Committee
PPSC	Public Prosecution Service of Canada
RCMP	Royal Canadian Mounted Police

Appendix B: Name and Description of IRPA Sections

Section of IRPA	Name of Section	Description of Section
18(1)	Examination by officer	Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.
52(1)	No return without prescribed authorization	If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.
117	Organizing entry into Canada - Smuggling	No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. Penalties ― fewer than 10 persons A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable on conviction on indictment for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. Penalty ― 10 persons or more A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both. No proceedings without consent No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.
118	Trafficking in persons	No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.
119	Disembarking persons at sea	A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act.
122	Documents	No person shall, in order to contravene this Act, possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person's identity; use such a document, including for the purpose of entering or remaining in Canada; or import, export or deal in such a document. Proof of offence Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act.
124(1)(a)	Contravention of the Act	Every person commits an offence who contravenes a provision of the Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act;
124(1)(b)	Contravention of the Act	Every person commits an offence who escapes or attempts to escape from lawful custody or detention under this Act;
124(1)(c)	Contravention of the Act	Every person commits an offence who employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.
126	Counselling Misrepresentation	Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.
127	Misrepresentation	No person shall knowingly directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.
129(1)(d)	Offences related to officers	Every person is guilty of an offence who obstructs or impedes an officer in the performance of the officer's duties under this Act.
131	Counselling offence	Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117, 118, 119, 122, 124 or 129, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person.