Canada Gazette, Part I, Volume 155, Number 25: Regulations Amending the Immigration and Refugee Protection Regulations
June 19, 2021
Immigration and Refugee Protection Act
Canada Border Services Agency
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The decision-making framework in the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) concerning whether a person is inadmissible to Canada for being involved in organized crime could be made more efficient by making facts established through the prosecution of certain specific organized crime-related offences in the Canadian criminal justice system binding upon immigration decision makers.
In 2017, the Standing Senate Committee on National Security and Defence tabled a report entitled “Vigilance, Accountability and Security at Canada's Borders.” In reviewing Canada's inadmissibility determination framework, the Committee noted that the removal of inadmissible persons from Canada is a lengthy, costly and complex process, and that inadmissible persons should not gain entry to Canada for the sole purpose of an admissibility hearing and subsequent removal. In response, the Government of Canada committed to having the Canada Border Services Agency (CBSA) explore policy options that would increase the efficiency of the inadmissibility determination process. The Minister of Public Safety and Emergency Preparedness's (the Minister) mandate letter includes a commitment to work with the Minister of Justice and Attorney General of Canada to continue to develop new policies and legislation to reduce organized crime and gang activity in Canada. The proposed amendments would help to support these two commitments.
The IRPA establishes inadmissibility provisions, which are the circumstances under which a person may not be allowed to enter or remain in Canada. A person may be found inadmissible to Canada for a variety of reasons including medical and financial reasons or for more serious concerns such as criminal convictions, or involvement with organized criminality. Immigration, Refugees and Citizenship Canada (IRCC) and the CBSA share overall responsibility for the administration of the inadmissibility provisions.
Under the IRPA, the Minister has policy responsibility for the serious inadmissibility grounds, including security, human and international rights violations and organized criminality. In cases where the person is in Canada, the CBSA investigates and seeks removal orders against foreign nationals or permanent residents believed to be inadmissible on the basis of organized criminality. These cases may be referred by the CBSA to the Immigration Division (ID) of the Immigration and Refugee Board (IRB) for an admissibility hearing to determine whether the person concerned is, in fact, inadmissible. The CBSA represents the Minister at these admissibility hearings. Pursuant to the IRPA, the ID must issue a removal order against a person determined to be inadmissible.
When the IRPA was brought into force in 2002, the IRPR included provisions to improve efficiency and consistency in proceedings relating to security and human or international rights violations. The existing regulatory framework makes findings of fact by international criminal tribunals, Canadian criminal courts or the Refugee Protection Division (RPD) of the IRB binding on determinations of inadmissibility for grounds of security and human or international rights violations on subsequent decision makers. The requirement to rely upon findings of fact established by Canadian criminal courts or the RPD, relieves immigration decision makers of the requirement to reassess the same evidence that had already been tested by other competent courts and tribunals. It also reduces the possibility that an immigration decision maker could come to an alternate conclusion from a criminal court based on the exact same facts. As a result, the findings of fact framework makes for a more streamlined decision-making process and ensures greater consistency between immigration decision makers and findings of criminal courts, or the RPD.
A finding of fact is a determination by a judge, jury or administrative tribunal of a fact supported by the evidence in the record. footnote 1 Furthermore, when a fact is said to be conclusive or binding upon a decision maker, the fact in question is presumed to be true. footnote 2 Recognizing previous findings of fact as binding on decision makers simplifies inadmissibility determinations by removing the need to re-adjudicate facts that have been previously established within the Canadian judicial system or specific international courts and tribunals. This is currently the case only with inadmissibilities involving security or human or international rights violations. Without a clearly defined requirement in the IRPR to treat findings of fact established by Canadian criminal courts as conclusive, officials assessing allegations of inadmissibility due to organized criminality are not bound by findings of fact established by Canadian courts and are required to undertake their own individualized determinations of submissions that would already have been scrutinized by a Canadian criminal court. The proposed regulatory amendments would ensure consistency and streamline decision making by eliminating the need for immigration decision makers to re-evaluate evidence that had already been determined to be a finding of fact by a Canadian criminal court in specific prosecutions related to organized crime.
The objective of the proposed amendments is to
- streamline inadmissibility decision making for organized criminality cases by eliminating the need for the Minister to establish facts already determined in the Canadian criminal process;
- put findings of fact authorities in place similar to that which already exists for inadmissibility as a result of security and human and international rights violations; and
- foster greater consistency in inadmissibility determinations for organized criminality among the various decision makers at the CBSA, IRCC, and the IRB.
The proposed amendments would bind all immigration decision makers to findings of fact established as part of decisions made by Canadian criminal courts in certain circumstances, including proceedings concerning any of the following offences:
- Participation in activities of a criminal organization under subsection 467.11(1) of the Criminal Code;
- Recruitment of members by a criminal organization under section 467.111 of the Criminal Code;
- Commission of an offence for a criminal organization under subsection 467.12(1) of the Criminal Code; and
- Instructing the commission of an offence for a criminal organization under subsection 467.13(1) of the Criminal Code.
The proposed amendments would also bind immigration decision makers to findings of fact that were accepted during a sentencing hearing in situations where those facts were cited as aggravating factors, footnote 3 under subparagraph 718.2(a)(iv) of the Criminal Code, because the offence was committed for the benefit of, at the direction of, or in association with a criminal organization. The proposed amendments to the IRPR would also ensure consistency between serious inadmissibility for organized criminality and the serious inadmissibility related to security and human or international rights violations in the IRPR.
Despite making findings of fact established in the Canadian criminal process binding on immigration decision makers, the proposed amendments would not import any other legal findings of the Canadian criminal justice system into the inadmissibility determination process. The proposed amendments would incorporate findings of fact related to organized crime established by the courts, but would not similarly incorporate findings of guilt or other legal tests or definitions, such as whether or not a particular group met the definition of “criminal organization” in the Criminal Code.
Moreover, while the proposed amendments would bind all immigration decision makers to findings of fact of the Canadian criminal justice system, they would not prevent an immigration decision maker from taking findings of international or foreign courts with respect to organized crime into consideration. Facts established in foreign proceedings could continue to be presented as evidence in support of the allegation of inadmissibility for organized criminality, but the proposed amendments would not require that findings of fact made by foreign jurisdictions be binding upon immigration decision makers. Finally, the proposed amendments are not intended to narrow the application of existing inadmissibility provisions in any way; instead, they are intended to streamline decision making for cases that have been subject to relevant criminal proceedings in Canadian courts.
A 30-day public consultation period was held from February 11, 2020, to March 11, 2020, through the Consulting with Canadians website. The following stakeholders were also proactively notified:
- British Columbia Civil Liberties Association
- Canadian Association of Refugee Lawyers
- Canadian Association of Professional Immigration Consultants
- Canadian Bar Association
- Canadian Civil Liberties Association
- Canadian Council for Refugees
- Federation of Law Societies of Canada
- Quebec Immigration Lawyers Association
No comments were received during this public consultation process.
Modern treaty obligations and Indigenous engagement and consultation
The proposed amendments would not impact Indigenous peoples. They are related to Canada's inadmissibility determination process which primarily impacts foreign nationals and permanent residents of Canada.
Regulation is the only instrument that can achieve the objective of binding all immigration decision makers to findings of fact from the Canadian criminal justice system. Alternatives to regulation, such as relying on CBSA operational policy alone, do not provide sufficient authority to bind immigration decision makers to treating facts established by a criminal court as conclusive findings of fact.
Benefits and costs
From 2015 to 2019, there were 604 organized criminality cases within Canada that were referred to the ID for an average of 120 cases of permanent residents and foreign nationals per year. The estimated direct cost over five years for the CBSA to appear in person at hearings for these 604 cases is $639,895. Admissibility hearings vary in both complexity and the level of effort required to prepare and present them; however, organized crime cases are extremely complex and require more time and resources to prepare than the average case.
There are no anticipated implementation costs for the CBSA as a result of these proposed amendments. Instead, they are expected to save the CBSA between four and eight hours per case. As a result, the direct cost savings per year could range from $15,817 to $31,644, amounting to between $79,085 and $158,220 over five years. These cost figures are based on the analysis of a data sample of 224 organized criminality cases over five years that resulted in the issuance of a removal order. This analysis showed that 12% of these cases had also been subject to immigration enforcement proceedings for crimes committed in Canada. Applying 12% to the 120 cases per year referred to the ID for organized criminality would lead to 14 cases per year that could benefit from the implementation of the proposed amendments.
Streamlining and simplifying the decision-making process related to organized criminality also yields public safety benefits by supporting faster resolution of cases, which would in turn support the timely denial of access to Canada or removal of inadmissible people from Canada as the case may be. By relying on findings of fact established within the criminal justice process, the Minister will not be required to undertake complex and lengthy submissions to establish the facts necessary for a finding of inadmissibility for organized criminality where a Canadian court has already done so.
Small business lens
The proposed amendments would not have an impact on small businesses. They only impact the inadmissibility decision-making process for foreign nationals and permanent residents alleged to be inadmissible to Canada for involvement in organized criminality.
The one-for-one rule does not apply as the proposed amendments would not result in an incremental change in the administrative burden on business.
Regulatory cooperation and alignment
There is no regulatory cooperation or alignment (with other jurisdictions) component associated with the proposed amendments.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was conducted on 224 organized criminality cases that resulted in the issuance of a removal order over the five calendar year period 2015–2019. This analysis showed that men accounted for 89% of all cases while women accounted for 11%. The average age of the individuals subject to the removal order was 34 years old for males in the sample, with a range of 18 to 63 years old. For females, the average age was 39 with a range of 19 to 61 years old. The most frequently occurring age (mode) for males was 34 while for females it was 54.
While the GBA+ analysis shows that immigration enforcement on the grounds of organized crime impacts men to a greater extent than women, the proposed amendments do not change the inadmissibility provisions under section 37 of the IRPA. Instead, the proposed amendments streamline the decision-making process associated with section 37 by relying on facts established in Canadian criminal court decisions, reducing the need for decision makers to reassess all of the evidence which may indicate inadmissibility due to organized criminality. As a result, the proposed amendments are not expected to impact any particular socio-economic group disproportionately.
Implementation, compliance and enforcement, and service standards
The CBSA will develop operational policy, including operational bulletins and program manual updates, to support implementation of the proposed amendments.
Inadmissibility Policy Unit
Strategic Policy Branch
Canada Border Services Agency
PROPOSED REGULATORY TEXT
Notice is given that the Administrator in Council, pursuant to subsection 5(1) and section 43 of the Immigration and Refugee Protection Act footnote a, proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jeff Robertson, Manager, Inadmissibility Policy Unit, Immigration Enforcement and Inadmissibility Policy Division, Immigration Enforcement, Customs and External Review Policy Directorate, Strategic Policy Branch, Canada Border Services Agency (tel: 613‑946‑3996; e-mail: firstname.lastname@example.org).
Ottawa, June 10, 2021
Assistant Clerk of the Privy Council
Regulations Amending the Immigration and Refugee Protection Regulations
1 The Immigration and Refugee Protection Regulations footnote 4 are amended by adding the following after section 16:
Application of paragraphs 37(1)(a) and (b) of the Act
16.1 For the purpose of determining whether a foreign national or permanent resident is inadmissible under paragraph 37(1)(a) or (b) of the Act, if either of the following decisions has been rendered, the findings of fact set out in that decision shall be considered as conclusive findings of fact:
- (a) a decision by a Canadian court under section 467.11, 467.111, 467.12 or 467.13 of the Criminal Code concerning the foreign national or permanent resident; or
- (b) a sentencing decision by a Canadian court concerning the foreign national or permanent resident, made in accordance with the principle set out under subparagraph 718.2(a)(iv) of the Criminal Code.
Coming into Force
2 These Regulations come into force on the day on which they are registered.