Canada Gazette, Part I, Volume 153, Number 26: Regulations Amending the Immigration and Refugee Protection Regulations

June 29, 2019

Statutory authority
Immigration and Refugee Protection Act

Sponsoring department
Department of Public Safety and Emergency Preparedness

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In 2006, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) identified a number of errors, inaccuracies, and inconsistencies with Part 16 of the Immigration and Refugee Protection Regulations (IRPR), which deals with seizure authorities. A regulatory review was conducted through which a number of other gaps were identified, and it has been determined that regulatory amendments are required to address these gaps and improve clarity and consistency.

Background

Part 16 of the IRPR outlines the technical requirements governing the seizure of vehicles, documents, and other things. This includes requirements related to notification of when an item is seized; how to dispose of a seized thing; when a seized item can be returned to its lawful owner, or to a person from whom the item was seized; and the time limits within which seizure may take place.

The SJCSR provided extensive comments on Part 16, identifying gaps and inconsistencies. For example, among these, the SJCSR noted

• that there may be overlapping reasons for a seizure, and in such situations where there would be multiple reasons for a seizure, it is unclear which method of disposal should apply based on how the current regulatory text is drafted;
• that there is a lack of consistency between the English and French versions of Part 16;
• concerns that the application for the return of a seized item and the conditions whereby a seized vehicle may be returned upon payment of a fee were unclear; and
• concerns with respect to the scope of the statutory authority for the making of regulations that impose a time limit on the seizure power.

The Immigration and Refugee Protection Act (IRPA or Act) grants Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC) officers broad authority to seize any means of transportation, document or other item such as (but not limited to) electronic devices, photographs, and videos, if the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used and/or when the seizure is necessary to prevent its fraudulent or improper use; or to carry out the purposes of the Act.

This authority may be applied in a variety of contexts. For example, (1) at a port of entry, a CBSA officer may seize a document (such as a passport) if it was fraudulently used; (2) within Canada, an IRCC officer may also seize an identity document when processing an asylum claimant; and (3) the CBSA requires travel documents in order to effect removal of an inadmissible person from Canada. In this case, the seized document would be provided to an air operator to facilitate travel before that document is ultimately returned to the person being removed. In this particular context, the purpose of the Act (i.e. removal) requires officers to ensure the safe keeping of the travel documents that are necessary for admittance into the country of removal.

Objective

The objective of the proposed amendments is to address the concerns raised by the SJCSR, by enhancing the clarity and consistency of Part 16 of the IRPR.

Description

The proposed amendments would redraft Part 16 of the IRPR using more precise language while still maintaining the overall policy intent of the existing regulatory requirements.

The following is a list of the changes that would be made.

Notification of seizure

Currently, the IRPR only require that the lawful owner be provided written notification of a seizure along with the reasons for the seizure. For example, if a borrowed personal vehicle was used to attempt to smuggle a person into Canada and was seized at a port of entry, the CBSA would be required to notify the owner of the vehicle. The IRPR do not take into account the possibility that the person from whom the thing was seized may not be the lawful owner.

The proposed amendment to the notice of seizure provision would require that written notification and reasons be provided to the person from whom the thing was seized (i.e. the driver in the above-noted example), in addition to the lawful owner (i.e. a person who may not be present at the time of the seizure in the above-noted case). This is to align it with the application for return provision which allows for the person from whom a thing was seized to apply for its return. This change would ensure that parties directly affected in the seizure are properly notified and although Part 16 does not specifically require that the person from whom the item was seized to be notified, in practice this notification is being done. Notifying the person from whom the thing was seized has no practical impact other than to align with other sections of the Regulations, to ensure their clarity and to ensure all potential parties are notified.

Return

Currently, the IRPR contain two separate timelines for submitting an application to request the return of a seized item, depending on whether it is the lawful owner (60 days) or the person from whom something was seized (30 days). In continuing to use the above-noted example, the person from whom it was seized would be notified immediately at the time of the seizure, and the owner of the vehicle may be notified at a later date in a circumstance where the owner was not physically present at the time of the seizure. Currently, the timelines in both cases begin when the seizure occurs.

The proposed amendments would create greater efficiency and consistency by eliminating the two separate timelines (30 and 60 days) and instead create one 60-day timeline for both types of applicants. In addition, this timeline would begin upon notice of seizure instead of upon the seizure itself. This proposed change better accounts for the gap in time that may arise between the seizure and notification and provides both the owner and the person from whom the item was seized an equal amount of time to provide an application for the return of the thing seized. The impact of this change is considered low because it only gives a more equitable time frame for applicants to apply for return.

The proposed amendments would also arrange the return provisions into two categories: seizures on the grounds related to fraudulent or improper activity and seizures necessary to carry out the purposes of the Act. In the case of seizures executed on grounds of fraudulent or improper use, any individual (the lawful owner or the person from whom the thing was seized) seeking the return of a seized item would be required to apply for the return. The applicant would have 60 days from the notice of seizure to submit their application. Once an application for return has been submitted, an officer would render a decision as soon as feasible, with a view to providing timely decisions. Overall, greater consistency would be achieved by requiring an application for return regardless of whether the person concerned is the lawful owner or the person from whom the item was seized.

The proposed amendments correct various additional gaps that were identified by the SJCSR with the provisions related to the return of seized things. Currently, if a thing is seized on more than one ground, it is not clear in the regulatory text which ground is to take priority. In the above-noted vehicle example, this could occur where the item was improperly used (i.e. to commit an offence upon entry to Canada) and where the seizure is necessary to carry out the purpose of the Act (e.g. to complete the related enforcement action). Furthermore, the IRPR do not currently identify whether the lawful owner or the person from whom the item was seized would take priority. The proposed amendments would make it clear that all grounds for seizure must be resolved before a seized thing is eligible for return.

In addition, the proposed amendments would specify that the lawful owner’s application would take priority in a circumstance where the person from whom the item was seized also applies for return of the item. Finally, the proposed amendments would resolve an additional gap identified by the SJCSR by including a provision explicitly stating that a thing seized in error is to be returned without delay (Part 16 does not currently contain a time frame for the return of an item seized in error). These proposed changes would clarify how the CBSA and IRCC must deal with seized things. The impacts of these amendments are considered minimal, as they do not grant new authorities or impose new obligations. Rather, they support the current policy intent of Part 16 of the IRPR with improved clarity and consistency in how the provisions are drafted.

Disposition (i.e. disposal of a seized item)

Currently, the IRPR require that if a seized thing is not returned, it is to be sold, unless the costs of sale exceed the monetary value of the thing, in which case it is to be destroyed. The IRPR also impose the following two restrictions on when the sale of a seized thing cannot occur: (a) 15 days following a notification of a decision on an application not to return (allowing for an appeal for judicial review); and (b) not before a final decision is made in any judicial proceeding in Canada affecting the seizure. In the previously used example of the seized vehicle, this means that if an application for return was unsuccessful, the vehicle would be sold if its value is greater than the cost of sale (e.g. preparing the vehicle for sale, including ensuring its safety) and if it does not fall into one of the aforementioned restrictions. Documents are not to be sold. Therefore, as an additional example, where a fraudulent identity document was seized in an attempt to gain illegal access to Canada, the item may be destroyed and not returned to an applicant.

The proposed amendments as they relate to disposition essentially mirror the current regulatory provisions with regard to seized things that are not returned to the lawful owner or the person from whom the item was seized. The proposed amendments to the disposal provisions merely consolidate them into one location and clarify their language. For example, the proposed amendments would now capture all possible scenarios where a thing is not returned at all, whether that is due to an application for return that is denied or in a case where an application was never made (not contemplated by the previous provisions). This is in contrast to the current regulatory provisions, which only capture the scenario where an application for return is denied. The provisions themselves impose no new requirements on individuals, but merely state more clearly the procedures already in place for the disposal of items not returned. Therefore, there is no expected impact.

Repeal: Application for return with a cash security

Under the proposed amendments, the provisions related to the application for return with a cash security and/or guarantee of performance (i.e. the existing section 254 of the IRPR) would be repealed. The original policy intent behind these provisions was to provide more timely access to a seized thing while allowing for a simultaneous application to be made for its outright return. For instance, if an item were to be seized, and its seizure is no longer required for the purposes of the Act, the applicant could in certain circumstances seek to post a cash security equal to the fair market value of the item at the time of the seizure in an effort to have the item returned provisionally pending a formal decision on the application for return. The proposed amendments would include a provision that requires all applications to be processed as soon as feasible, thereby providing for the timely return of all seized items in accordance with the IRPR without requiring a cash security or guarantee of performance.

With the elimination of this provision, there would only be one procedure for the outright return of an item. Furthermore, in practice, most seizures are document seizures, and, as such, they are not eligible for return with a cash deposit and/or guarantee of performance. This change is expected to be beneficial for regulatees since it simplifies the regulatory text and removes the requirement to provide a cash security or guarantee of performance while still allowing for the timely return of seized items.

Repeal: Return of a vehicle upon payment of a $5,000 fee

Currently, a lawful owner has two opportunities for the return of a vehicle. First, by applying for its outright return, and if that application is denied, by applying under an alternative set of conditions (i.e. the applicant must be the lawful owner, must not have participated in fraudulent use of the vehicle, and is unlikely to contravene the Act in the future) and paying a $5,000 fee. Eliminating this provision streamlines the process for the return of seized items by replacing it with a single application process for any seized thing, including a vehicle. Furthermore, a review of the use of this provision reveals that it is seldom used in practice. ^{footnote 1}

The provisions related to the return of a vehicle upon payment of a $5,000 fee would be repealed. This condition is specific to vehicles and is only applicable when a lawful owner does not meet the conditions necessary for its outright return. The amendments would instead allow for the outright return of a vehicle as it would for the outright return of any other seized thing.

Repeal: Limitation period for seizures

Currently, Part 16 requires that no seizure be made, in respect of a thing on the grounds that it was fraudulently or improperly obtained or used, more than six years after its obtaining or use.

The proposed amendments would eliminate the six-year limitation period for seizing things on the grounds that they were fraudulently or improperly obtained or used. This amendment ensures that Part 16 conforms to the seizure authority conferred in section 140 of the IRPA. ^{footnote 2} When reviewing Part 16 of the IRPR, the SJCSR interpreted this limitation period as restricting the scope of the statutory seizure power in the IRPA. With the repeal of this limitation, the amended Regulations would be aligned with the seizure power in the IRPA, meaning that seizures could occur at any time, as necessary when lawful and appropriate.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as the proposed amendments apply to individuals, not businesses.

Small business lens

The small business lens does not apply, as the proposed amendments apply to individuals, not businesses.

Consultation

On January 13, 2017, key external stakeholders were invited to participate in the development of these proposed amendments through a consultation notice on the CBSA website. This invitation was also posted on the Consulting with Canadians website on January 19, 2017, and remained open for comment until February 19, 2017. The key external stakeholders include the following organizations:

• 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

One stakeholder responded with four suggestions of a technical nature on the proposed amendments. Overall, the feedback received indicated support for improving the clarity of Part 16 of the IRPR. The following three recommendations were considered but not adopted:

• 1. That Part 16 include a list of seized items as part of the written notification of seizure. However, the IRPR (Part 16) would continue to require written notice of seizure, which already includes the identification of the seized things themselves. This is further encapsulated by the notice of seizure forms used by the CBSA and IRCC that include a section to list and describe the things seized.
• 2. That a clear definition of “lawful owner” be included in Part 16, specifically in the case of documents. The stakeholder expressed concern that confusion may arise given that the issuing country of an identity document is also the lawful owner. However, in practice, there has been no evidence that any confusion has arisen from an administrative, operational, or policy perspective. In addition, it was recommended that the policy to seize and retain documents be revised and that time limitations be placed on the seizure and retention of documents. This recommendation was not adopted because where it is necessary to determine the authenticity of a document, it would continue to be held for the time needed to accurately make a determination. Once a determination is made, either the document would be returned or would remain seized.
• 3. That the IRPR define the “applicable laws relating to the disposal of public archives.” However, following the proposed amendments, this provision of the IRPR would no longer refer to the “applicable laws relating to the disposal of public archives.” Instead, the language of the revised regulatory text would refer to “the laws of Canada.” The use of more generalized language would ensure that this provision always captures any and all relevant legislation at any point in time. This proposed amendment has been drafted this way because it would be impractical to define or cite every law of general application that is applicable to a given regulation. For this reason, the recommendation was not adopted.

Finally, the stakeholder also recommended that the timelines for applications for return for both the lawful owner as well as the person from whom the thing was seized be aligned at 60 days. This proposal was adopted, as it supports the overall intention to streamline, clarify, and simplify the application process, and there is no evidence to support maintaining the different application timelines that currently exist in Part 16.

Rationale

These amendments respond to the SJCSR’s recommendations by redrafting Part 16 of the IRPR to correct drafting errors and to enhance the clarity and consistency of this Part of the IRPR. Given that these amendments are administrative and relieving in nature, and would not impose new regulatory requirements, they are not expected to result in any new costs for stakeholders, businesses, Canadians, or the Government of Canada. The CBSA would have to update various existing forms and make minor changes to its IT systems; any costs associated with these activities would be absorbed within existing resource allocations.

Implementation, enforcement and service standards

Implementation of the revised Part 16 of the IRPR would be supported by updated field guidance, in the form of an Operational Bulletin, issued to officers responsible for administering these sections of the IRPR at the time of coming into force of these amendments.

The proposed amendments would apply to all items seized and applications for return received on or after the coming-into-force date for the amendments, which is upon registration. They would also apply to any existing seizures and outstanding applications for return, which would be treated according to the amended regulatory requirements under Part 16 — Seizure. Overall, this singular framework will be clearer and simpler for both the CBSA and for applicants. It is expected that this approach will have only minimal operational implications for the CBSA and little to no impact on applicants. For instance, the majority of seizures are done on the grounds that it is necessary to carry out the purposes of the Act. There would therefore be no change in the way these types of seizures are treated following the implementation of the proposed amendments. Further, with regard to seizures done on a ground (i.e. fraudulent or improper obtaining, use or prevention of fraudulent or improper obtaining or use) that requires an application for a return, the conditions that an applicant must satisfy mirror the current requirements. Finally, should the case arise that an outstanding application is impacted by the proposed amendments (e.g. the person from whom the thing was seized would now have 60 days to submit an application instead of 30), steps would be taken to communicate with the applicant so that they may amend or resubmit their application in accordance with the proposed amendments.

With respect to the provisions proposed to be repealed, namely, applications for the return of a vehicle upon payment of a $5,000 fee and the application for return with a cash security, the possibility of making these applications would continue to exist until the proposed amendments come into force. Once in force, it would no longer be possible to have a seized vehicle returned on payment of the $5,000 fee. It would also no longer be possible to apply for the return of a seized thing in exchange for a cash security or guarantee of performance. According to the Interpretation Act, applications related to these provisions that were received prior to the coming into force of the proposed amendments will be treated according to the repealed provisions. Applications received after the coming into force of the proposed amendments, including for seizures that occurred prior to the coming into force of the proposed amendments, will be treated according to the amended Regulations.

Contact

Richard St Marseille
Director
Strategic Policy Branch
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613‑954‑3923
Email: IEPU-UPELI@cbsa-asfc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsections 5(1) and 140(3) 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 Richard St Marseille, Director, Immigration Enforcement and Inadmissibility Policy Division, Canada Border Services Agency, 100 Metcalfe Street, 10th Floor, Ottawa, Ontario K1A 0L8 (tel.: 613‑954‑3923; email: IEPU-UPELI@cbsa-asfc.gc.ca).

Ottawa, June 20, 2019

Julie Adair
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendment

1 Sections 253 to 258 of the Immigration and Refugee Protection Regulations ^{footnote 3} are replaced by the following:

Notice of seizure — person from whom seized

253 (1) An officer who seizes a thing under subsection 140(1) of the Act shall provide written notice to the person from whom it was seized, including the grounds for the seizure.

Notice of seizure — lawful owner

(2) If the person from whom the thing was seized is not the lawful owner, the officer shall make reasonable efforts to identify the lawful owner and to give the lawful owner written notice of, and grounds for, the seizure. If the notice is provided by mail, notification is deemed to have been provided on the 7th day after the day on which the notification was mailed.

Application for return — person from whom seized

254 (1) If a thing was seized on the ground that it was fraudulently or improperly obtained or used, or that the seizure was necessary to prevent its fraudulent or improper use, the person from whom it was seized may apply for its return in writing within 60 days after the day on which the notification referred to in subsection 253(1) was provided.

Return — improperly or fraudulently obtained

(2) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly obtained, in order to have the thing returned, the applicant shall demonstrate that they were entitled to have that thing in their possession at the time of the seizure and that their entitlement has not changed.

Return — improperly or fraudulently used

(3) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly used, in order to have it returned, the applicant shall demonstrate that they did not fraudulently or improperly use the thing, that at the time of the seizure they were entitled to have that thing in their possession and that their entitlement has not changed.

Return — prevention of improper or fraudulent use

(4) If the application is in respect of a thing seized on the ground that the seizure was necessary to prevent its fraudulent or improper use, in order to have it returned, the applicant shall demonstrate that the seizure is no longer necessary to prevent its fraudulent or improper use, that at the time of the seizure they were entitled to have that thing in their possession and that their entitlement has not changed.

Return — lawful owner

255 (1) If a thing was seized on the ground that it was fraudulently or improperly obtained or used, or that the seizure was necessary to prevent its fraudulent or improper use, the lawful owner may apply for its return in writing within 60 days after the day on which the notification referred to in subsection 253(2) was provided.

Return to lawful owner — improperly or fraudulently obtained

(2) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly obtained, in order to have the thing returned, the applicant shall demonstrate that at the time of the seizure they were the lawful owner and that their ownership has not changed.

Return to lawful owner — improperly or fraudulently used

(3) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly used, in order to have it returned, the applicant shall demonstrate that they did not fraudulently or improperly use the thing, that at the time of the seizure they were the lawful owner and that their ownership has not changed. They shall also demonstrate that they exercised all reasonable care to satisfy themselves that the person to whom they gave possession of the thing was not likely to fraudulently or improperly use it.

Return to lawful owner — prevention of improper or fraudulent use

(4) If the application is in respect of a thing seized on the ground that the seizure was necessary to prevent its fraudulent or improper use, the thing shall be returned to the applicant if they demonstrate that the seizure is no longer necessary to prevent its fraudulent or improper use, that at the time of the seizure they were the lawful owner and that their ownership has not changed.

Concurrent applications

256 If the person from whom a thing was seized makes an application under section 254 for the return of the thing and the lawful owner makes an application under section 255 for the same thing, the application of the lawful owner will be processed first. If the application of the lawful owner is granted, the application of the person from whom the thing was seized shall not be processed.

Notice of decision

257 The decision on the application under section 254 or 255 and the reasons for it shall be given in writing and provided to the applicant as soon as feasible. If the applicant is notified by mail, notification is deemed to have been provided on the 7th day after the day on which the notification was mailed.

Automatic return

257.1 (1) If the seizure of a thing was necessary to carry out the purposes of the Act, the thing shall be returned to its lawful owner without delay if the seizure is no longer necessary to carry out the purposes of the Act.

Return — seizure in error

(2) If the seizure of a thing was made in error, the thing shall be returned without delay to the person from whom the thing was seized or, if that is not possible, to its lawful owner.

No return

257.2 A thing seized shall only be returned if its return would not be contrary to the purposes of the Act.

Sale or destruction of seized thing

258 (1) If a thing seized, other than a document, is not returned to its lawful owner or the person from whom it was seized, the thing shall be sold unless the costs of the sale would exceed the monetary value of the thing, in which case the thing shall be destroyed.

Sale or destruction suspended

(2) A thing seized shall not be sold or destroyed

• (a) within the 15 days after the day on which the notification of a decision not to return it was provided to the lawful owner or the person from whom it was seized; or
• (b) before a final decision is made in any judicial proceeding in Canada affecting the seizure or the return of the thing seized.

Return or disposal of documents

(3) If a document is not returned to its lawful owner or the person from whom it was seized, the document shall be held for as long as is necessary for the administration of the laws of Canada, after which it will either be returned to the authority that issued it or disposed of in accordance with the laws of Canada.

Coming into Force

2 These Regulations come into force on the day on which they are registered.