Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2018-170

Canada Gazette, Part II, Volume 152, Number 17

Registration

August 2, 2018

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2018-1045 August 2, 2018

Whereas, pursuant to subsection 5(2)footnote a of the Immigration and Refugee Protection Actfootnote b, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration have caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and sections 43 and 61footnote c of the Immigration and Refugee Protection Actfootnote b, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Section 19 of the Immigration and Refugee Protection Regulationsfootnote 1 is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

2 Section 246 of the Regulations is amended by striking out “and” at the end of paragraph (f) and by adding the following after paragraph (g):

Coming into Force

3 These Regulations come into force on the day on which sections 9 to 12 of the Cannabis Act, chapter 16 of the Statutes of Canada, 2018, come into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Bill C-45, the Cannabis Act (i.e. An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts), includes cannabis-related criminal offences (e.g. related to production, distributing, selling, importing and exporting) of which similar provisions were formerly legislated under the Controlled Drugs and Substances Act (CDSA). The Immigration and Refugee Protection Regulations (IRPR) include provisions related to criminal inadmissibility and immigration detention that reference the CDSA. Accordingly, regulatory amendments are required to add the relevant references to the Cannabis Act and thereby maintain the existing immigration enforcement framework.

Background

In the 2015 Speech from the Throne, the Government of Canada committed to introducing legislation to legalize, strictly regulate, and restrict access to cannabis. The Cannabis Act, which will come into force by order of the Governor in Council, seeks to protect public health and safety and reduce the burden on the criminal justice system in relation to cannabis.

The Cannabis Act establishes offences and penalties such as those relating to illicit cannabis possession, distribution, selling, importing and exporting, production, possession for use in production or distribution of illicit cannabis, and use of young persons in the commission of certain offences. Prior to the coming into force of the Cannabis Act, the CDSA governed criminal offences associated with cannabis. Upon the coming into force of the Cannabis Act, the provisions related to criminal offences associated with cannabis will be repealed from the CDSA.

The Immigration and Refugee Protection Act (IRPA) includes various grounds for which a person may be found inadmissible to Canada and subject to removal proceedings. This includes, among other grounds, being inadmissible on grounds of criminality. For example, a foreign national is inadmissible on grounds of criminality for the following: committing a prescribed criminal offence upon entry into Canada; having been convicted of certain criminal offences in Canada; and having been convicted of certain criminal offences abroad. Section 19 of the IRPR specifies the Acts of Parliament that contain the indictable offences which can lead to criminal inadmissibility when committing such a criminal offence upon entering Canada; the CDSA is currently listed in this provision.

The IRPA also includes various provisions related to immigration detention. Grounds for immigration detention include where an officer believes on reasonable grounds the person is inadmissible and is a danger to the public. Section 246 of the IRPR specifies factors that must be considered in determining whether or not a person is a danger to the public for immigration detention purposes. Serious criminal offences contained within the CDSA (i.e. trafficking, importing/exporting, and production) are currently listed in this provision.

Objectives

The objectives of these amendments are to

Description

The following two consequential amendments will be made to the IRPR to align it with the coming into force of the Cannabis Act.

1. Amendment to section 19: Criminal Inadmissibility for Transborder Crime Related to Cannabis

This amendment adds the Cannabis Act to the list of prescribed Acts of Parliament for the purpose of assessing inadmissibility that arises out of the commission, on entering Canada, of certain offences under these prescribed Acts. This amendment will ensure that foreign nationals who commit cannabis-related offences on entering Canada may continue to be found inadmissible to Canada.

2. Amendment to section 246: Immigration Detention Factors Related to Cannabis Convictions

This amendment will maintain the factors to be considered when assessing whether a foreign national or permanent resident is a danger to the public for the purposes of immigration detention. It will add a reference to certain criminal offences found in the Cannabis Act in a manner equivalent to that which exists for other prohibited substances listed in the CDSA. The amendments will add the following Cannabis Act offences to section 246 of the IRPR: distribution; selling; importing and exporting; and production.

The CDSA will continue to be listed in sections 19 and 246 of the IRPR as it includes various offences related to other controlled drugs and substances that will remain subject to the criminal inadmissibility and immigration detention provisions listed in the IRPR.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, as they do not impact businesses.

Small business lens

The small business lens does not apply to these amendments, as they will not result in costs for small businesses.

Consultation

External consultations specific to these amendments took place through the “Consulting with Canadians” and Canada Border Services Agency (CBSA) websites. Online public consultations were launched in November 2017 and open for a period of 30 days. One stakeholder organization (representing legal professionals) responded to the public consultation notice.

Concerning these amendments, the stakeholder made two recommendations. First, it was recommended that the amendments to section 19 of the IRPR reference only those Cannabis Act offences that correspond to offences currently listed (i.e. trafficking, importing, and production of cannabis) in the Cannabis Act (not the full Act). The stakeholder noted that the Cannabis Act includes some hybrid offences (i.e. offences which may be prosecuted by way of indictment or summarily) that are not currently found in the CDSA, such as “promoting” cannabis, and that the inclusion of these offences in the inadmissibility framework could be disproportionate to the severity of the offence.

The amendments have not been revised to address this recommendation because this would represent a substantive departure from how the existing transborder criminal inadmissibility framework is designed. Currently, the IRPR list five Acts of Parliament (i.e. Criminal Code, IRPA, Firearms Act, Customs Act, and CDSA) that include offences used to determine criminal inadmissibility that arises when an individual commits an offence upon entry into Canada. The IRPR specifies that the offences must be “indictable” which means that summary offences are not captured. The IRPA, however, explicitly notes that hybrid offences are deemed to be indictable offences for criminal inadmissibility purposes. While each of these Acts of Parliament includes various offences (some of which are indictable, summary, or hybrid), the current immigration framework does not list specific offences for any of the other prescribed Acts. Accordingly, this stakeholder recommendation was not adopted.

Second, the stakeholder also recommended that the cannabis-related factors that are considered when assessing whether a person is a danger to the public for immigration detention purposes be limited to the more serious offences (i.e. selling, importing/exporting and production of cannabis). The draft amendments were already in line with this recommendation; therefore, no further changes to the regulatory text have been made in response to this comment.

Finally, the stakeholder also provided comments on Bill C-46 [i.e. An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts] which deals with impaired driving. These comments are outside the scope of these amendments.

Rationale

The IRPR provisions related to criminal inadmissibility for transborder crime and the factors to be considered when assessing whether a person is a danger to the public for the purpose of immigration detention now make reference to the Cannabis Act.

The amendments are intended to maintain the overall immigration enforcement framework as it applies to transborder criminal inadmissibility and immigration detention. If these amendments are not made, the CBSA’s ability to deny access to Canada on the basis of cannabis-related transborder crime will be reduced. In addition, the Agency’s ability to detain those related to certain cannabis-related offences for immigration purposes would also be reduced. The amendments do not impact CBSA or Immigration, Refugees and Citizenship Canada (IRCC) policy, operations or regulatory enforcement. No costs are expected to be incurred as a result of these amendments.

Implementation, enforcement and service standards

These changes, which will come into force at the same time as the coming into force of the Cannabis Act, will not affect existing compliance and enforcement mechanisms. An internal operational bulletin will be issued to notify CBSA and IRCC employees of the coming into force of these amendments.

The CBSA is responsible for enforcing the IRPA, which governs immigration admissibility to Canada. Under the existing regulatory framework, members of the Immigration and Refugee Board (IRB) are responsible for determining that a foreign national is inadmissible on criminality grounds where that person has committed an offence upon entry to Canada. Cases are referred to the IRB for an admissibility hearing by CBSA officers. CBSA hearing officers represent the Minister at admissibility hearings, and the Agency is responsible for removing inadmissible persons from Canada. This approach will not change with the coming into force of these regulatory amendments.

Contact

Giosafat Mingarelli
Manager
Customs Enforcement Policy Unit
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613-954-3909