Order Amending the Canadian Passport Order: SI/2018-31

Canada Gazette, Part II: Volume 152, Number 8

Registration

April 18, 2018

CITIZENSHIP ACT

P.C. 2018-346 March 26, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, makes the annexed Order Amending the Canadian Passport Order.

Order Amending the Canadian Passport Order

1. The Canadian Passport Order ^footnote1 is amended by adding the following after section 2:

2.1 For the purposes of this Order, an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

2. The Order is amended by adding the following after section 7:

7.1 Despite subsections 7(2) to (4) and without any application having been made by an applicant referred to in any of paragraphs 7(1)(a) to (c) for the issuance of a passport to a child under 16 years of age, the Minister may issue a passport to a such a child if he or she has reasonable grounds to believe that it is in the child’s best interest.

3. Section 9 of the Order is amended by adding the following after subsection (2):

(3) Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse to issue a passport to a child under 16 years of age if he or she has reasonable grounds to believe that the refusal is in the child’s best interest.

(4) Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse to issue a passport to a person if he or she has reasonable grounds to believe that the person facilitated the use of a passport by a person other than its bearer.

4. Subsection 11.1(1) of the Order is replaced by the following:

11.1 (1) Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may cancel a passport if he or she has reasonable grounds

• (a) to suspect that the cancellation is necessary to prevent the commission of any act or omission referred to in subsection 7(4.1) of the Criminal Code; and
• (b) in the case of a passport issued to a child under 16 years of age who, on the day of the cancellation, is under 16 years of age, to believe that it is in the child’s best interest.

5. Subsection 11.3(1) of the Order is replaced by the following:

11.3 (1) If a passport has been cancelled under section 11.1, the following persons may, within 30 days after the day on which they become aware of the cancellation, apply in writing to the Minister or the Minister of Public Safety and Emergency Preparedness, as the case may be, to have the cancellation reconsidered:

• (a) in the case of a passport issued to a child under 16 years of age, a person referred to in any of paragraphs 7(1)(a) to (c) if the child is under 16 years of age when the application for reconsideration is made; and
• (b) the person to whom the passport was issued.
  

6. This Order comes into force on the day on which it is registered.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order Amending the Canadian Passport Order amends the Canadian Passport Order (the Order) to provide new authorities for the Minister of Immigration, Refugees and Citizenship to enhance the protection of children and to clarify and strengthen existing refusal and revocation authorities.

Objective

The amendments address concerns raised by the Senate Standing Committee on Human Rights that the Order did not do enough to help ensure the protection of children. Furthermore, the amendments address integrity gaps resulting from court decisions that have hampered the ability to refuse or revoke passports in cases of passport-related offences, such as identity fraud, forgery and false statements in relation to a passport.

Background

The Government of Canada is committed to protecting children and to maintaining the integrity of the Canadian passport by ensuring that Canadian passports are only used by the rightful bearers.

Implications

General

The amendments to the Order focus on two areas:

1) Enhancing the protection of children

There are circumstances in which it is in the best interest of a Canadian child to have a passport, but the child’s parents/legal guardians are unwilling or unable to apply (e.g. when a child needs to travel to escape maltreatment, neglect or exploitation and parents are complicit or unavailable). A provision has been added to provide authority to issue a passport to a child without a parent or legal guardian having applied if the Minister has reasonable grounds to believe that it is in the child’s best interest. When determining the best interest of a child, the Department works with government and non-governmental partners both in Canada and abroad. The child’s physical, mental, cultural and emotional safety and well-being are considered.

There are cases in which passport refusal, cancellation or revocation is necessary to help to prevent travel when it is in the child’s best interest (e.g. when an AMBER Alert is issued for an abducted child). A provision has been added to provide authority to refuse, cancel or revoke a passport issued to a child if the Minister has reasonable grounds to believe that it is in the child’s best interest.

2) Clarifying and strengthening refusal and revocation authorities

The Order provides the authority to refuse or revoke the passport of individuals who misuse the passport issued in their name by allowing someone else to use it. Prior to the current amendment, there was no explicit authority to allow passport refusal or revocation in cases where an individual facilitates the misuse of a passport issued to someone else (for example, when a parent allows someone to use the passport issued to their child). A provision has been added to provide authority to refuse or revoke the passport of a person who facilitates the use of a passport by someone other than its bearer.

Under Canadian criminal law, there are two types of offences — indictable offences and summary conviction offences. The difference between the two is that indictable offences are more serious and typically have harsher penalties. Some offences, referred to as “hybrid” offences, can be treated by the Crown as either indictable offences or summary offences. The Order provides the authority to refuse or revoke the passport of a person who is charged with an indictable offence. Many offences related to passport issuance are hybrid offences (e.g. providing a false statement on a passport application). Prior to the current amendment, there was no explicit authority to allow passport refusal or revocation when a person is charged with a hybrid offence which the crown has decided to pursue summarily. A provision has been added to clarify the authority to refuse or revoke a passport when a person is charged with a hybrid offence.

Mitigation measures

Limiting an individual’s access to a passport infringes on their right to enter, remain in and leave Canada, and therefore needs to be justified under section 1 of the Canadian Charter of Rights and Freedoms. Recognizing this, the following mitigation measures have been instituted and are available for situations where a passport has been refused or revoked:

• A limited-validity travel document may be issued to an individual subject to an investigation or a period of refusal of passport service;
• A limited-validity travel document with geographical limitations may be issued for urgent, compelling and compassionate considerations; and
• An emergency travel document may be issued to return to Canada.

Gender-based Analysis Plus

Enhancing the protection of children

Children are more vulnerable than adults, as they may, in certain circumstances, lack the tools and resources needed to escape abuse, mistreatment, or abandonment. One resource that children may lack in these types of situations is a passport, as children under the age of 16 need a parent or legal guardian to apply for a passport on their behalf. As a result, additional protections for children are warranted. While both male and female children are vulnerable to abuse, mistreatment and abandonment, a review of past passport cases demonstrates that there has been a greater tendency for girls to be the subjects of mistreatment, such as being the victim of forced or arranged underage marriage, thus requiring consular assistance in returning to Canada from regions where these practices are still permitted.

Each year, approximately 900,000 passports are issued to children under 16 years of age, the majority of which are the result of straightforward applications. There are however, a small number of these applications that are considered complex, of which the Department anticipates only a very small number would result in passport issuance without the participation of a parent or legal guardian when it is deemed to be in a child’s best interest. The Department also anticipates very low numbers of cases wherein preventing travel by refusing to issue, revoking and cancelling a passport would be deemed to be in the child’s best interest.

Clarifying and strengthening refusal and revocation authorities

No data is available on occurrences of individuals misusing passports by facilitating the use of a passport by a person other than its bearer. As a result, it is not known whether a particular group or gender is misusing passports at a more frequent rate, and would therefore be disproportionately affected by this new authority. In the case of the refusal or revocation of a passport when an individual stands charged with a hybrid offence, the authority will be applied to a narrowed list of offences that are considered of interest to the passport program. As a result, the population affected by this amendment will be very small. Statistics show that between 1998 and 2015, men made up 70% of adults charged with a Criminal Code offence. This trend is also true for passport related hybrid offences and thus, the conclusion can be drawn that men will be impacted by this new provision at a higher rate than women.

These amendments protect the safety and security of all Canadians, and the integrity of the Canadian passport, and will be applied irrespective of gender, or other intersectional identity factors.

Consultations

Consultations were held with Global Affairs Canada, the Canada Border Services Agency, Public Safety Canada and Justice Canada. In addition, a notice of intent was published in the Canada Gazette, Part I, on October 21, 2017, inviting public comment for a 15-day period. Comments were received from a non-governmental organization which applauded the Government of Canada for taking steps to increase protection of children, and also urging the Government to take further steps to address child sex offender travel.

These amendments will come into force upon registration.

Departmental contact