Regulations Amending the Immigration and Refugee Protection Regulations (Transborder Criminality): SOR/2024-128

Canada Gazette, Part II, Volume 158, Number 13

Registration
SOR/2024-128 June 10, 2024

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2024-661 June 10, 2024

Whereas, under subsection 5(2)footnote a of the Immigration and Refugee Protection Act footnote b, the Minister of Public Safety and Emergency Preparedness caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations (Transborder Criminality), 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, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Transborder Criminality) under subsection 5(1) and sections 43 and 53footnote c of the Immigration and Refugee Protection Act footnote b.

Regulations Amending the Immigration and Refugee Protection Regulations (Transborder Criminality)

Amendments

1 Section 19 of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

Transborder criminality

19 (1) For the purposes of subsection 36(2.1) of the Act, the prescribed offences are

Punishable by way of indictment

(2) For the purposes of paragraphs (1)(a) and (b), an offence that may be prosecuted either summarily or by way of indictment is deemed to be an offence punishable by way of indictment, even if it has been prosecuted summarily.

2 Subsection 228(1) of the Regulations is amended by adding the following after paragraph (a):

3 Paragraph 229(1)(d) of the Regulations is replaced by the following:

Transitional Provision

4 If, under subsection 44(1) of the Immigration and Refugee Protection Act, a report has been prepared with respect to a foreign national before the day on which these Regulations come into force, section 19 and subsections 228(1) and 229(1) of the Immigration and Refugee Protection Regulations, as they read immediately before the day on which these Regulations come into force, continue to apply in respect of the foreign national in relation to the matter referred to in the report.

Coming into Force

5 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Immigration and Refugee Protection Regulations (IRPR or the Regulations) regulates who has the authority to issue removal orders for each inadmissibility. The authority is presently divided among the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) and the Minister’s Delegate (MD) [i.e. an official of the Canada Border Services Agency (CBSA) or of Immigration, Refugees and Citizenship Canada (IRCC)]. The former is intended to have jurisdiction over more complex inadmissibility grounds whereas the latter is intended to have jurisdiction over relatively straightforward inadmissibility grounds. Under the current framework, immigration enforcement arising from transborder criminality cases requires referral to the ID for an admissibility hearing, irrespective of the circumstances or complexity of the criminal offence. Transborder criminality are cases where a foreign national commits a prescribed criminal offence at the port of entry and includes cases such as the smuggling of weapons and firearms into Canada. The need to refer cases involving straightforward grounds of inadmissibility such as these is overly complex and cumbersome in comparison to cases that can be handled entirely at ports of entry.

Furthermore, the current transborder criminality framework incorporates a broader range of criminal offences than is required, such as offences that cannot be committed at a port of entry. The current regulatory framework also allows for immigration enforcement, including lifetime bans on returning to Canada, even for individuals who commit relatively minor violations (such as non-report of groceries). Refining the prescribed criminal offences, and aligning jurisdiction for the issuance of removal orders based on the complexity of the offence provides greater precision, transparency and consistency with respect to the application of the transborder inadmissibility provision.

Background

For the past several years, the CBSA, in consultation with the IRCC, has been advancing a range of proposals aimed at streamlining inadmissibility determination processes for certain relatively straightforward inadmissibility grounds pursuant to the Immigration and Refugee Protection Act (IRPA) and the IRPR. This policy work was a funded commitment in the Removals Strategy, which was part of Budget 2019.

Inadmissibility

The IRPA includes a number of grounds for inadmissibility, which can result in the issuance of a removal order. Under the IRPA, grounds for inadmissibility include, but are not limited to, security, human or international rights violations, criminality, and organized criminality. Once a removal order becomes enforceable, foreign nationals are required to leave Canada. A foreign national subject to a removal order, in general, can either leave voluntarily or be removed from Canada by the CBSA.

Removal orders can be issued once a person has been found to be inadmissible under the IRPA. Procedurally, the first step in seeking the issuance of a removal order is the preparation of a report on inadmissibility by an officer of either the CBSA or of the IRCC. This report is then reviewed by an MD to determine whether or not the allegation of inadmissibility outlined in the report is well founded. The MD review is a form of peer review, which is conducted by another CBSA or IRCC officer or a supervisor or manager. While jurisdiction for the issuance of a removal order by either the ID or the MD is prescribed in the IRPR, the level of the official who may serve as the MD for any particular ground of inadmissibility is defined by the Instrument of Designation and Delegation. An MD determining the report to be well founded may either issue a removal order as prescribed by the regulations or refer the inadmissibility report to the ID of the Immigration and Refugee Board for an admissibility hearing to be held.

Generally, the IRPA and the IRPR were structured so that inadmissibility grounds that are straightforward and fact-based (such as foreign nationals who have been convicted of a criminal offence in Canada) fall under the MD’s jurisdiction while grounds of inadmissibility that are more complex (such as foreign nationals inadmissible due to international or human rights violations or war crimes), must be referred to the ID for an admissibility hearing who would issue a removal order if found inadmissible to Canada.

Current inadmissibility regime for transborder criminality

Currently, the authority to issue a removal order for foreign nationals inadmissible on the basis of having committed a prescribed criminal offence at the port of entry, also known as transborder criminality, rests solely with the ID. If a foreign national commits a transborder criminal offence, they must be authorized to enter Canada for the purposes of attending an admissibility hearing before the ID.

At a port of entry, if a Border Services Officer (BSO) determines that a foreign national committed a transborder crime, the BSO will first contact local police to see if the police would like to press charges. If the police decide to press charges, the BSO will not proceed with writing an inadmissibility report. If the police do not press charges, the BSO can proceed with writing an inadmissibility report for transborder criminality. All indictable offences under the Criminal Code, the IRPA, the Firearms Act, the Customs Act, the Controlled Drugs and Substances Act (CDSA), and the Cannabis Act are currently prescribed offences under the IRPR.

Once the BSO has prepared the inadmissibility report, they will refer the report to the MD for review. If the MD is of the opinion that the report is well founded, it is then referred to the ID for an admissibility hearing. If the ID is satisfied that the foreign national is inadmissible, they will issue the removal order. The applicable removal order in these cases is a deportation order, which carries a lifetime bar on re-entry to Canada, unless the Minister authorizes the person’s return.

Officers are also provided with other authorities to manage potential transborder criminality offences. For minor offences, such as a person inadvertently bringing small amounts of cannabis to the port of entry, or accidentally leaving a hunting rifle in their car, BSOs have the option to allow a person to withdraw their application to enter Canada. This allows foreign nationals to immediately leave Canada and not risk being subject to a removal order, which would permanently bar them from entering Canada in the future without prior authorization. These amendments do not impact the option to allow a person to withdraw their application to enter Canada.

Commitment to review authorities for inadmissibility determination and removal order issuance

On April 13, 2017, the Government of Canada tabled its response to the Standing Senate Committee on National Security and Defence report, entitled Vigilance, Accountability and Security at Canada’s Borders (PDF). In its report, among other things, the Committee noted that the removal of inadmissible persons is a lengthy and costly process and indicated a general orientation towards the notion that inadmissible persons should not, in the first instance, have to physically enter Canada only for the purpose of an admissibility hearing at the ID of the IRB and subsequent removal from Canada by the CBSA. In its response, the Government of Canada noted its commitment to delivering a balanced, efficient, and cost-effective immigration enforcement program, as well as addressing these underlying concerns raised by the Committee. The government response committed the CBSA to explore policy options to enhance efficiencies in the inadmissibility determination process. As a result, a broad multi-year review of various inadmissibility grounds was conducted regarding the authorities of either the ID or the MD to issue removal orders against inadmissible persons. This was the first comprehensive review of related authorities since the IRPA and the IRPR came into force in 2002.

2020 Report of the Auditor General — Immigration removals

The 2020 Office of the Auditor General (OAG) report on immigration removals emphasized the importance of timely removal of an inadmissible person from Canada. It was noted that removals are also one of the most effective ways to deter those who might otherwise seek to abuse the immigration system. To the extent that the amendments below enable inadmissibility cases to be determined more swiftly, increase the pace at which removal orders can be issued, and increase the CBSA’s ability to conduct more removals from ports of entry rather than requiring physical referral into Canada for an admissibility hearing at the ID, the amendments contribute towards the overall goal of ensuring removals are conducted as soon as possible.

Link to Bill C-21

A bill related to firearms (Bill C-21) received royal assent on December 15, 2023. Provisions transferring policy authority for inadmissibility due to transborder criminality from the Minister of Immigration, Refugees and Citizenship (IRC) to the Minister of Public Safety have come into force. The Regulations support some of the policy objectives of Bill C-21 by strengthening enforcement of firearms offences directly at the border, as opposed to requiring the person be admitted into Canada for an admissibility hearing.

Objective

These amendments are designed to streamline inadmissibility decision-making for straightforward offences committed at the time of entry to Canada as well as improve precision, clarity and transparency related to transborder criminal inadmissibility decisions.

These regulatory amendments:

Description

There are two principal elements to this approach. First, amendments are made to list specific offences in the IRPR. The offences listed are only those that could occur at a port of entry, and only those severe enough to warrant a transborder criminal inadmissibility finding. This removes offences from the IRPR that do not occur at the border (e.g. production of drugs) or offences that are less serious (e.g. non-report of groceries). This provides greater precision and clarity for officers when making transborder criminal inadmissibility decisions. Secondly, the IRPR is amended to transfer authority to issue removal orders from the ID to the MD for straightforward offences committed at the time of entry. Inadmissibility arising from the commission of more complex offences would be referred to the ID for an admissibility hearing.

Greater precision, clarity and transparency

The amendments specify specific cross-border offences that could render persons inadmissible if committed at the border. The number of applicable offences is narrowed with respect to the Firearms Act, the Customs Act, the CDSA and the Cannabis Act. These amendments ensure that only the more serious cross-border offences are applicable. For instance, failure to declare personal goods, such as groceries, under the Customs Act no longer is sufficient grounds under which a removal order can be sought. The amendments also refine the prescribed offences to ensure that they are limited to those that can reasonably occur at a port of entry. For instance, the Cannabis Act includes offences relating to promotion that, however serious, are unlikely to be relevant to a port of entry context.

Offences that someone could be found inadmissible for, as they relate to transborder criminality include tampering with licences under the Firearms Act; non-reporting of goods and substances such as prohibited firearms and ammunition, unlawful possession of blank documents that can be used in accounting for imported goods, and smuggling of restricted, prohibited or controlled goods or substances under the Customs Act; possession, trafficking or importing substances under the CDSA; and possession for purposes of distribution or selling under the Cannabis Act.

Strengthen authority to issue removal orders at ports of entry

By improving the precision of the prescribed offences, the amended framework allows greater authority to be provided to MDs to issue removal orders for the most straightforward offences committed at the time of entry. The Regulations transfer authority to issue removal orders from the ID to the MD for various offences within the Criminal Code, the IRPA, the Firearms Act, and the Customs Act. Examples of offences appropriate to transfer to the MD for the issuance of a removal order, for instance, would be carrying a concealed weapon or the unauthorized possession of a firearm under the Criminal Code. Offences like these are straightforward, as the person is either concealing the weapon and/or is unauthorized to carry it, or they are not concealing it and/or are authorized to carry it. The facts are discernable and the evidence is not complex and so an admissibility hearing before the ID is not necessary. Making removal orders for other offences that will be transferred to the MD include escaping or attempting to escape from lawful custody under the IRPA; contravening the condition of a licence or registration under the Firearms Act; and failing to report and/or smuggling of weapons or firearms under the Customs Act. Issuing removal orders in more complex cases, such as those involving narcotics, impaired driving, or offences that require laboratory testing, remain with the ID.

Regulatory development

Consultation

Targeted consultations were conducted in November 2020. The following key stakeholders were notified of the consultation process:

Based on comments received, the CBSA has revised the approach. For instance, certain criminal offences such as those related to controlled substances and impaired driving were removed from the proposal to transfer authority to the MD on the basis that they can involve complex evidence (e.g. laboratory tests) and are best suited for consideration at an admissibility hearing. Another change, based on stakeholder comments, was leaving the authority to issue removal orders for fraudulent document offences with the ID. The original proposal recommended transferring this authority to the MD. However, given concerns raised around persons fleeing persecution, jurisdiction for this offence was left with the ID.

Other comments from stakeholders were related to rights to counsel, and that unconscious bias against Black, Indigenous and people of colour (BIPOC) communities may affect enforcement outcomes. A gender-based analysis plus (GBA+) was conducted in relation to this regulatory proposal, and it was determined that no groups would be disproportionately affected by the proposal (for more details, see the section “Gender-based analysis plus” below). While it is not expected that the Regulations will have any impact on enforcement outcomes, the CBSA has developed operational guidance reiterating that normal procedures regarding the right to counsel will remain in place when the person is detained.

In addition, stakeholders were concerned that the regulatory amendments would result in a lack of procedural safeguards, putting vulnerable populations at risk. The CBSA has pre-existing safeguards and training in place to address these concerns. For example, officers are trained on how to identify vulnerable persons, such as unaccompanied minors, suspected or known victims of human trafficking and gender-based violence, and persons unable to appreciate the nature of the proceedings. Moreover, the Regulations do not alter or impact any currently available avenues for recourse or judicial review.

Prepublication

The proposed amendments were prepublished in the Canada Gazette, Part I, on December 16, 2023, for a 30-day public consultation period. Two stakeholders provided a total of ten comments, only two of which were within the scope of this proposal.

With respect to cannabis, two stakeholders are of the opinion that foreign nationals should not be found inadmissible for importing cannabis. As described above, under the Cannabis Act, it is illegal to import into Canada, or export from Canada, cannabis without a valid permit or exemption issued by Health Canada. Additionally, the CDSA establishes a framework that regulates the possession, import, export, distribution and sale of controlled substances, including cannabis.

These recommendations were not adopted as both Acts have provisions in place that make the illegal importation and exportation of cannabis an offence, outside of these regulatory amendments. These are serious criminal offences under Canadian federal law. The amendments therefore include the existing prescribed Cannabis Act offences as grounds for inadmissibility under the transborder criminality provision in the IRPA.

No changes were made to the amendments as a result of the prepublication comment period.

Modern treaty obligations and Indigenous engagement and consultation

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted. The assessment examined the geographical scope and subject matter of the initiative in relation to modern treaties in effect and did not identify any potential modern treaty impacts or obligations.

As noted in the “Background” section above, the amendments do not expand the scope of current transborder criminal inadmissibility (i.e. who can be refused entry). The BSOs will continue to have the option to allow a person (including Indigenous travellers) to withdraw their application to enter Canada rather than seek the issuance of a removal order where the officer concludes it is appropriate to do so, having taken into consideration the circumstances of the offence committed.

On a separate track from these Regulations, the CBSA, in collaboration with the IRCC and Indigenous partners, are working together to address complex border crossing and migration challenges faced by Indigenous peoples divided by Canada’s international borders, including options to amend Canada’s right of entry provision, and work and study permit requirements. Crown-Indigenous Relations and Northern Affairs Canada is also leading separate work on the impact of the Supreme Court’s 2021 Desautel decision, which found that Aboriginal groups located outside of Canada can be “Aboriginal Peoples of Canada” and can hold Aboriginal rights within Canada, such as hunting, in certain circumstances. The Supreme Court did not decide whether there is an incidental right of entry to Canada. As indicated in the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, the Government of Canada proposes to pursue legislative amendments to the IRPA and regulatory amendments to the IRPR to address complex border crossing challenges faced by Indigenous peoples divided by Canada’s international borders (Action Plan — Shared Priorities Measure 52).

Instrument choice

The IRPR are linked to the IRPA inadmissibility provision related to committing an offence on entering Canada (i.e. transborder criminality). This legislative provision refers to “prescribed by regulations,” therefore amending the IRPR is the only possible instrument, in order to achieve the policy objective. Operational policy alone is not sufficient to address the changes being made.

Regulatory analysis

Baseline scenario

The current transborder criminality regulatory framework incorporates a broad range of criminal offences, including offences that cannot be committed at a port of entry. In the current framework, less serious offences (e.g. non-report of shopping items) also has the same consequences as more serious offences (e.g. smuggling of drugs). In addition, all of these cases need to be referred to the ID for an admissibility hearing, and may take months before a removal order is issued. In absence of amendments to the IRPR, the same consequences (i.e. a lifetime ban) would remain for serious and less serious offences. The issuance of removal orders would also remain costlier for straightforward offences, as the CBSA is required to seek a removal order from the ID. Based on a manual review of data from 2016 to 2019, on average, there are currently 15 cases annually referred to the ID for inadmissibility due to transborder criminality.

Regulatory scenario

The regulatory amendments refine the offences listed in the IRPR to only those offences that may be committed at the port of entry, and only offences that reach a certain threshold in severity. This ensures that relatively minor violations are not treated the same as more serious offences. Furthermore, the regulatory amendments allow the MD to issue removal orders immediately in straightforward cases. There is no need to refer the case to the ID to await the issuance of a removal order. Following implementation of the regulatory changes to transfer authority to the MD for specific prescribed offences, three cases per year will fall within the jurisdiction of the MD and will no longer need to be referred to the ID. This will result in cost savings for the CBSA.

Benefits

These amendments improve precision, clarity and transparency related to transborder criminality inadmissibility decisions by officers at the ports of entry.

Specifically, the amendments will reduce the number of inadmissible persons physically entering Canada from ports of entry for the sole purpose of attending admissibility hearings and subsequent removal (if found inadmissible). The amendments will increase efficiency and result in cost savings because a person can be removed from Canada right at the port of entry, instead of coming into Canada. This eliminates the need for potential detention costs, as well as admissibility hearing costs. These amendments also reduce the risk of absconders since fewer inadmissible people will be in the country, thereby increasing border and immigration program integrity, and better mitigating public safety risks. In addition, by prescribing certain offences, decisions with respect to this provision will be more consistent across the country, which will strengthen program and immigration integrity. Certain offences are also removed from the transborder inadmissibility framework to ensure that minor offences, such as failing to report groceries, will not be treated as criminality. The regulatory amendments focus CBSA resources on the more serious cross-border violations. The amendments also partially address some of the concerns raised in the Standing Committee Report and the 2020 OAG report regarding the need to ensure timely removals, and close residual gaps in the CBSA’s ability to efficiently manage the border.

Due to a reduced number of admissibility hearings required, the amendments will result in cost savings for the CBSA and the IRB. In present value terms (fiscal year 2024–2025), these amendments are expected to save the CBSA approximately $152,439 over 10 years (price base year of 2023), and approximately $27,391 for the IRB.

Costs

While the amendments will result in some overall benefits and cost savings, there will be minor costs associated with this proposal.

The CBSA will incur minor costs related to implementation, communication and outreach activities needed as a result of the regulatory amendments (e.g. updating departmental memoranda and work instruments, as well as responding to functional guidance requests and updating web content on the CBSA webpage).

Small business lens

Analysis under the small business lens concluded that the amendments do not impact Canadian small businesses. The amendments only impact foreign nationals who have committed an offence upon entering Canada, and who are to be subject to a removal order.

One-for-one rule

The one-for-one rule does not apply, as the amendments do not result in an incremental change in the administrative burden on business and no regulatory titles are repealed or introduced.

Regulatory cooperation and alignment

The amendments apply only to the decision-making process for inadmissibility undertaken by officers and officials of the CBSA, IRCC, and IRB. There are no regulatory conflicts with other jurisdictions that need to be addressed and no requirement for alignment between Canada’s provinces or territories, the United States, the European Union, or international organizations.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required. The amendments only impact the inadmissibility decision-making process for foreign nationals alleged to be inadmissible to Canada for transborder criminality.

Gender-based analysis plus

A gender-based analysis plus (GBA+) was conducted in relation to these amendments and it was determined that no groups are disproportionately affected by the proposal.

As mentioned above, there are two parts to these amendments. The first part involves reducing, and bringing greater transparency to, the offences which can render a person inadmissible under this provision. These particular amendments narrow the authorities of officers by removing certain offences from the scope of transborder inadmissibility. Therefore, these regulatory amendments are not expected to have an impact on populations based on gender identity, sex, age, income, ability, and other factors.

The second part of the regulatory amendments involve transferring to the MD the authority to issue removal orders for straightforward offences, such as importing a firearm without a permit. The concerns raised from stakeholders were related to this latter part of the regulatory amendments, partially due to concerns regarding unconscious bias against the BIPOC communities. The CBSA remains committed to combatting systemic racism and biases in its policies and programs. All CBSA employees participate in diversity and race relations training which provides awareness, knowledge, and strategies on managing diversity and race relations. The training examines the impact of stereotypes, prejudices, discrimination, and biases when interacting with different cultures.

Furthermore, as previously noted, the amendments are not expected to have any differential outcomes with respect to enforcement. Currently MDs are authorized to review allegations of inadmissibility under this provision, and refer well-founded allegations to the ID for an admissibility hearing. The ID, in law, has no discretion to not issue a removal order against a person it finds to be inadmissible. In arriving at this decision, the ID may only consider the inadmissibility itself vis-à-vis the actions of the individual at the border. Moreover, as previously mentioned, the regulations do not alter or impact any currently available avenues for recourse or judicial review. Accordingly, no noteworthy differential outcomes or impacts are expected.

In terms of distributional statistics, the majority of inadmissible persons under the transborder inadmissibility provision tend to be male. Of a case review of files conducted between 2016 and 2019, it was identified that over 90% of cases were male. In addition, the CBSA only collects race-based data in limited contexts. Therefore, there is limited information available to the race of individuals who are found inadmissible under this provision.

The amendments are not expected to increase (or decrease) the rate at which the CBSA encounters vulnerable populations, and related facilitation mechanisms are not impacted by the amendments. The CBSA has pre-existing safeguards and training in place to address encounters with vulnerable populations. For example, officers are trained on how to identify vulnerable persons, such as unaccompanied minors and persons unable to appreciate the nature of the proceedings. In these cases, the MD does not have jurisdiction to issue a removal order and the case is referred to the ID. These safeguards are not modified in this proposal. The CBSA also provides training to officers who, through the course of their duties, may encounter other vulnerable persons, such as victims of human trafficking. This training includes how to support victims through referrals to appropriate government agencies.

Implementation, compliance and enforcement, and service standards

Implementation

With respect to transitional cases, any foreign nationals who were alleged to be inadmissible and who were subsequently referred to the ID for a hearing prior to the coming into force of the amendments will continue to have their cases proceed through the admissibility hearing process. All other cases will be determined by the MD.

When these amendments come into force, the Federal Court will continue to be able to undertake judicial review of decisions made under the amendments. Anyone directly affected by a decision of the ID and the MD may apply to the Federal Court for leave and judicial review of the decision. The Federal Court will then review the decision to ensure that it was fair, reasonable and lawful. Unless a judicial stay of removal is provided by the Federal Court, the individual can still be removed from Canada, prior to the outcome of the judicial review.

The CBSA will support the implementation of the amendments through updated field guidance (i.e. operational bulletins and program manual updates); this field guidance will be available to officials at the CBSA and at the IRCC. The minor costs associated with this proposal will be absorbed by the CBSA.

The regulatory amendments come into force upon publication in the Canada Gazette, Part II.

Contact

Jeff Robertson
Manager
Inadmissibility Policy Unit
Strategic Policy Branch
Canada Border Services Agency
Email: IEPU-UPELI@cbsa-asfc.gc.ca