Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2022-198
Canada Gazette, Part II, Volume 156, Number 21
SOR/2022-198 September 27, 2022
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2022-1011 September 23, 2022
Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 5(1) and section 43 of the Immigration and Refugee Protection Act footnote a, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Regulations Amending the Immigration and Refugee Protection Regulations
1 The Immigration and Refugee Protection Regulations footnote 1 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.
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 will 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 further, 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’s (the Minister) 2021 mandate letter includes a commitment to modernize and maintain the integrity of our borders, address complex and evolving threats, protect Canada’s national security interests, and prioritize efforts to keep cities and communities safe, including investments in crime prevention programming. These amendments help to support this commitment.
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 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. According 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 subsequent decision-makers in determinations of inadmissibility for grounds of security and human or international rights violations. 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 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 2 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 3 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 in specific proceedings 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. These new regulatory amendments ensure consistency and streamline decision-making by eliminating the need for immigration decision-makers to re-evaluate evidence already determined to be a finding of fact by a Canadian criminal court in specific prosecutions related to organized crime.
The objective of the 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 those that already exist 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 amendments 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 amendments also bind immigration decision-makers to findings of fact accepted during a sentencing hearing in situations where those facts were cited as aggravating factors,footnote 4 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 amendments to the IRPR are also designed to 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 specific decisions made by a Canadian court binding on immigration decision-makers, the amendments do not import any other legal findings of the Canadian criminal justice system into the inadmissibility determination process. The amendments incorporate findings of fact related to organized crime established by the courts, but do 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 amendments bind all immigration decision-makers to findings of fact of the Canadian criminal justice system, they do not prevent an immigration decision-maker from taking into consideration findings of international or foreign courts respecting organized crime. Facts established in foreign proceedings may continue to be presented as evidence in support of the allegation of inadmissibility for organized criminality, but the amendments do not bind immigration decision-makers to these findings. Finally, the 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 web page. The following stakeholders were also proactively notified:
- the British Columbia Civil Liberties Association;
- the Canadian Association of Refugee Lawyers;
- the Canadian Association of Professional Immigration Consultants;
- the Canadian Bar Association;
- the Canadian Civil Liberties Association;
- the Canadian Council for Refugees;
- the Federation of Law Societies of Canada; and
- the Quebec Immigration Lawyers Association.
No comments were received during this public consultation process.
A further 30-day public consultation period was held from June 18, 2021, to July 18, 2021, following the publication of these amendments in the Canada Gazette, Part I. Comments were received from two stakeholder organizations. Concerns were raised related to procedural fairness, exculpatory evidence, guilty pleas, the availability of representation and the potential use of information derived through torture. The comments were given careful consideration. It was ultimately decided that changes to the amendments were not required because, as detailed in the responses outlined below, sufficient legal and procedural protections already exist to address these concerns.
Stakeholders registered a comment that the amendments would deprive a person of the opportunity to challenge the evidence in the immigration context, thereby compromising their right to a fair proceeding. Stakeholders were concerned that adopting “facts” derived from criminal proceedings would preclude testing evidence in the immigration hearing that may not have been challenged in the criminal trial.
No changes to the amendments were made in response to these comments. Adequate protections exist within the criminal justice system to preserve the principles of fundamental justice and procedural fairness. The criminal justice system tests facts at a higher standard of proof, “beyond a reasonable doubt,” and at a higher evidentiary threshold than does IRPA, and allows for the cross-examination of evidence. Incorporating facts into the immigration admissibility determination process that have been properly established at a higher standard by making them binding will help to foster consistency in decision making. Binding the decision-maker, in the absence of new evidence, precludes the decision-maker from having to reweigh previous evidence and potentially reach different conclusions. Finally, neither of these new regulatory amendments, nor the existing regulations in sections 14 and 15 of the IRPR upon which these amendments are based, prevent an immigration decision-maker from considering new, relevant and credible facts or evidence when rendering a decision.
Stakeholders commented that the amendments would prevent the introduction of relevant evidence, including exculpatory evidence (i.e. evidence which may justify or excuse the actions of an accused), and that the amendments could restrict or fetter the IRB decision-maker’s jurisdiction and discretion.
However, the Supreme Court of Canada has emphasized the importance of finality in litigation, requiring “litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so.”footnote 5 Furthermore, while exculpatory evidence may come to light after a conviction, the criminal justice system contemplates several remedies to prevent miscarriages of justice. Convictions may be appealedfootnote 6 or subjected to ministerial review.footnote 7 Moreover, within the immigration hearings framework, immigration decision-makers continue to have residual discretion to consider new compelling exculpatory evidence despite findings of fact having been established by a court. Other remedies are also available to contend with this circumstance, for example, persons found inadmissible under subsection 37(1) of the IRPA for organized criminality retain the ability to apply to overcome the inadmissibility such as through a temporary resident permit or ministerial relief. Accordingly, no changes were made with respect to this comment.
Inadequate representation and guilty pleas
Stakeholders commented that many people in Canada facing criminal allegations that could lead to inadmissibility findings are self-represented. Thus, they argued that the accused may not have the resources to fully pursue a defence, which could lead to false findings of guilt. Additionally, in the absence of proper representation, stakeholders expressed concern that there could be cases where, even if innocent of the crime, the accused may accept a plea bargain offered by the prosecution, pleading guilty to be released from detention.
It is not, however, the responsibility of the immigration enforcement process to second-guess, or provide an appeal mechanism, to decisions made by a Canadian court within the criminal justice process. Under the existing immigration enforcement framework, foreign nationals or permanent residents can be refused entry to, or removed from Canada on the basis of a criminal conviction rendered by a Canadian criminal court. The link between criminal convictions and a person’s inadmissibility will not be affected by the regulatory amendments. The Criminal Code provides that a court may only accept a plea of guilty if it is satisfied that the accused is making the plea voluntarily; the accused understands essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor; and the facts support the charge.footnote 8 Accordingly, no change was made in response to this comment.
Use of evidence from foreign sources and use of evidence from torture
Stakeholders commented that the amendments may undermine the person’s right under section 7 of the Canadian Charter of Rights and Freedoms (the Charter) to life, liberty and security. The concern is that the information received or used by the CBSA could be derived from foreign countries, law enforcement authorities, intelligence services, or governments that allow evidence to be obtained by torture. By removing discretion and independence from the immigration decision-maker, the stakeholders felt that this regulatory change could make it difficult to challenge evidence obtained in this way.
The amendments, however, do not propose that evidence from foreign jurisdictions would be binding upon decision-makers. Only facts that have already been tested by the Canadian Criminal Justice system are binding upon the decision-maker. Similar decisions or pronouncements from courts in other countries are not within the scope of the amendments. The Criminal Code of Canada provides that in any proceedings over which Parliament has jurisdiction, including criminal proceedings, any statement obtained as a result of torture is inadmissible in evidence, except as evidence that the statement was so obtained.footnote 9 Individuals may apply for the exclusion of such evidence in criminal proceedings as its use could represent a violation of their Charter rights. This procedure is also available in hearings before the Immigration Division.footnote 10 This means, in practice, that a finding of fact could be excluded from an admissibility hearing, should the individual provide sufficient evidence of a violation of their Charter rights. Accordingly, no changes were made in response to this comment.
Modern treaty obligations and Indigenous engagement and consultation
The amendments do 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 treat facts established by a criminal court as conclusive findings of fact.
Benefits and costs
From 2015 to 2019, 604 organized criminality cases within Canada 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 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 amendments.
Streamlining and simplifying the decision-making process related to organized criminality also yields public safety benefits by supporting the faster resolution of cases, which will, 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 small business lens does not apply to these regulatory amendments, as they will not result in costs for 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 amendments will 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 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 men in the sample, with a range of 18 to 63 years old. For women, the average age was 39 with a range of 19 to 61 years old. The most frequently occurring age (mode) for men was 34 while for women 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 amendments do not change the inadmissibility provisions under section 37 of the IRPA. Instead, the 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 amendments will not impact any particular socio-economic group disproportionately.
Implementation, compliance and enforcement, and service standards
The CBSA has developed internal operational policy, including operational bulletins and program manual updates, to support CBSA officers and the IRB in the implementation of the amendments. These amendments come into force on the day on which they are registered and apply to all new cases, as well as cases pending an inadmissibility decision, as of that date.
Inadmissibility Policy Unit
Strategic Policy Branch
Canada Border Services Agency