Consultation notice
Potential regulatory amendments related to transborder criminal inadmissibility (i.e. committing an offence on entry to Canada)

Current status: Closed

Open on November 7, 2020, and will close to new input on December 6, 2020.

Summary

The Canada Border Services Agency (CBSA) in consultation with Immigration, Refugees and Citizenship Canada (IRCC) are considering potential amendments to the Immigration and Refugee Protection Regulations (IRPR), which relate to the transborder criminal inadmissibility framework under the Immigration and Refugee Protection Act (IRPA).

Amendments are being considered to provide greater precision with respect to the criminal offences that could render someone inadmissible to Canada if they are committed at the time of entry. Amendments are also being considered to streamline the related inadmissibility determination process in circumstances that are relatively straightforward. This would be done by transferring the authority to issue removal orders when certain criminal offences are committed upon entry to Canada, from the Immigration Division of the Immigration and Refugee Board to the Minister’s Delegate. This alternative process, where the Minister’s Delegate (e.g. an officer or other official) may render inadmissibility decisions and issue removal orders, already exists in law today.

How these amendments would help us meet our commitments to Canadians

These amendments strengthen Canada’s ability to manage access at the border while ensuring that those who commit crimes at the time of entry may be denied entry, where appropriate, without the need to be physically referred into Canada for an admissibility hearing. These potential amendments partially address the tabled 2017 government response to the Standing Senate Committee on National Security and Defence report entitled Vigilance, Accountability and Security at Canada’s Borders. In this study, the senate committee noted that the removal of inadmissible persons is a lengthy and costly process. The committee recommended that inadmissible persons should not be allowed to enter Canada solely for the purpose of an admissibility hearing at the Immigration Division.

In its response to the committee report, the government committed to delivering a balanced, efficient and cost-effective immigration enforcement program and to explore various policy options to streamline the inadmissibility determination process so that it is more efficient. The proposed amendments do just that with respect to this particular inadmissibility ground.

Ensuring that sufficient authorities are in place to efficiently manage access to Canada at our borders is increasingly important given the novel coronavirus disease (COVID-19). COVID-19 is a serious health threat that has been assessed as high risk to Canadians by the Public Health Agency of Canada (PHAC). In response, the Government of Canada has taken several measures, including, on March 18, 2020, temporarily restricting the entry of foreign nationals to Canada. A range of other measures aimed at minimizing the public health risks to Canadians include the imposition of mandatory self-isolation and quarantine requirements on all persons who enter Canada, with few limited exemptions. These potential amendments take this context into account and would enable a greater range of inadmissibility cases to be resolved at ports of entry, without requiring physical referral into Canada.

These potential amendments would also support a priority in the mandate letter of the Minister of Public Safety and Emergency Preparedness. The letter instructs the Minister to detect and stop gun smuggling. The amendments support this priority by facilitating timely removal of foreign nationals who commit certain firearms-related criminal offences at the time of entry to Canada where criminal prosecution is not being pursued.

Work to develop regulations that strengthen the transborder criminal inadmissibility framework is also a policy priority in the CBSA Departmental Plan for Fiscal Year 2020-2021. Furthermore, the website containing the Agency’s Forward Regulatory Plan includes a public notice on the intent to advance regulatory amendments to expand officer authorities to issue removal orders for various inadmissibility grounds rather than having to refer relatively straightforward inadmissibility cases into Canada for a hearing. These potential amendments would expand these authorities for certain offences committed at the time of entry to Canada.

What we are considering

We are considering changes to the IRPR that underpin the IRPA, which governs immigration matters in Canada. Subsection 5(1) and paragraph 53(b) of the IRPA, allows for the creation of regulations to specify the appropriate authority for who can issue removal orders. The potential regulatory amendments include the following changes to sections 19, 228 and 229 of the IRPR.

This inadmissibility (and potential regulatory changes) could only be used to render a foreign national inadmissible where there are reasonable grounds to believe an offence was committed on entry to Canada. This is consistent with the current application of transborder criminal inadmissibility.

In addition, the offence must be listed under one of the prescribed Acts of  Parliament as described in section 19 of the IRPR. Offences, which can be prosecuted by way of summary or indictment, are deemed indictable for purposes of paragraph 36(2)(d) as outlined in paragraph 36(3)(a) of the IRPA. Furthermore, transborder criminal inadmissibility is only to be used if the above criteria are met and if charges are not being laid for the offence committed on entry. If charges are laid, one could only determine admissibility following the outcome of the charges, with a conviction potentially resulting in criminal inadmissibility under paragraphs 36(1)(a) or 36(2)(a) of the IRPA, instead of under the paragraph 36(2)(d), which relates to transborder criminal inadmissibility.

1) Section 19: Greater Precision for the Transborder Criminal Inadmissibility Framework

Section 19 of the IRPR currently lists the prescribed Acts of Parliament under which an offence must occur on entry for a foreign national to be inadmissible for transborder criminal inadmissibility. The current framework is very broad and is applied in a way that includes any offence within any of the prescribed Acts of Parliament which is a hybrid offence (which can be prosecuted summarily or by way of indictment) or an offence that can be prosecuted solely by way of indictment. These prescribed Acts of Parliament currently include the Criminal Code, IRPA, Firearms Act, Customs Act, Controlled Drugs and Substances Act (CDSA) and the Cannabis Act. There are offences within these prescribed Acts, however, that are not relevant to a cross-border context since they cannot be committed on entry. Furthermore, within the current framework, a foreign national could be found inadmissible for transborder criminality for promoting cannabis or not declaring personal quantities of alcohol or tobacco which are hybrid offences under the Cannabis Act and Customs Act though not necessarily within Parliament’s intent for transborder criminal inadmissibility.

This potential amendment to this section would focus on offences within the prescribed Acts of Parliament that are applicable to a cross-border context. Accordingly, the following changes to the prescribed Acts of Parliament as they relate to inadmissibility under paragraph 36(2)(d) of the IRPA are being considered.

A. Amend 19(c) of the IRPR to Prescribe Specific Firearms Act Offences

Rather than simply identifying the entire Firearms Act as prescribed for transborder criminal inadmissibility, consideration is being given to limiting inadmissibility to the following specific Firearms Act offences committed on entry into Canada:

• Section 106 for offences relating to producing false or misleading information relevant to the application for a firearms license, registration certificate or authorization;
• Section 107 for tampering with or falsifying a license, registration certificate or authorization;
• Section 110 for contravening a condition of a license, registration certificate or authorization;
• Paragraph 117(a) for contraventions related to the issuance of a license;
• Paragraph 117(h) for contraventions related to the storage, handling, transportation, sale of a firearm and restricted weapon;
• Paragraph 117(i) For contraventions related to the storage, handling, transportation, shipping, possession, transfer or importation of a prohibited firearm or weapon;
• Paragraph 117(j) for possession and use of a restricted weapon;
• Paragraph 117(k) for unauthorized possession of a firearm, prohibited or restricted weapon, prohibited device, ammunition and prohibited ammunition;
• Paragraph 117(k.1) for contraventions related to the importation of a firearm, prohibited or restricted weapon, prohibited device, ammunition and prohibited ammunition;
• Paragraph 117(k.2) for contraventions related to the marking of firearms manufactured in or imported into Canada;
• Paragraph 117(k.3) for contraventions related to a declaration and authorization to transport and import;
• Paragraph 117(l) for offences pertaining to the storage, handling, transportation, importation/exportation, shipment and disposal of a firearm, prohibited or restricted weapon, prohibited device and ammunition and explosive substances; and
• Paragraph 117(m) for contraventions related to the keeping and destruction of records related to a firearm, prohibited weapon, restricted weapon, prohibited device and prohibited ammunition.

B. Amend 19(d) of the IRPR to Prescribe Specific Customs Act Offences

Rather than simply identify the entire Customs Act as prescribed for transborder criminal inadmissibility, consideration is being given to limit inadmissibility to specific Customs Act offences committed on entry, which are most pertinent. This would reduce the risk of transborder criminal inadmissibility being applied to relatively less serious cross-border offences involving personal amounts of consumer goods.

To better align the framework with border management imperatives and priorities, this amendment would limit the prescribed Customs Act offences to subsection 160(1) of the legislation, for the following contraventions:

• Section 11, specific to the requirement to present oneself on entry to Canada;
• Section 12, specific to the non-report of prohibited ammunition, devices, firearms or weapons as defined in the Criminal Code, restricted firearms or weapons as defined in the Criminal Code, non-restricted firearms as defined in the Criminal Code, imitation, automatic or replica firearms as defined in the Criminal Code; and controlled drugs and substances as defined in the Controlled Drugs and Substances Act;
• Section 156 for unlawfully possessing blank documents that can be used in accounting for imported goods; and
• Subsection 159(1) for smuggling into Canada prohibited or restricted goods such as child pornography, prohibited ammunition, devices, firearms or weapons as defined in the Criminal Code, restricted firearms or weapons as defined in the Criminal Code, non-restricted firearms as defined in the Criminal Code, imitation, automatic or replica firearms as defined in the Criminal Code; controlled drugs and substances as defined in the Controlled Drugs and Substances Act and cannabis as defined in the Cannabis Act.

C. Amend 19(e) of the IRPR to Prescribe Specific Controlled Drugs and Substances Act Offences

Consideration is being given to restricting the offences within the CDSA that can be used for transborder criminal inadmissibility. This is consistent with the changes being considered to restrict the Firearms Act and Customs Act offences to those that are most relevant in the context of entry to Canada. The changes being considered would eliminate CDSA offences related to production and prescribe only those offences that pertain to seeking entry to Canada. This would change paragraph 19(e) of the IRPR from including the entirety of the CDSA, and instead explicitly limit it to the following CDSA offences:

• Section 4 for offences related to the possession of substances;
• Section 5 for offences related to possession for trafficking in substances; and
• Section 6 for offences related to the importation of substances.

D. Amend 19(f) of the IRPR to Identify Specific Prescribed Cannabis Act Offences

The Cannabis Act is the most recent addition to the prescribed Acts of Parliament that is relevant to transborder criminal inadmissibility, coming into force on October 17, 2018. As with the other prescribed Acts of Parliament identified above, the Cannabis Act contains many offences (such as those related to packaging, labelling, promotion and display of cannabis) that are not relevant in the context of entry into Canada.

In order to limit offences within this Act that are most relevant to seeking entry to Canada, consideration is being given to amending paragraph 19(f) of the IRPR to restrict prescribed offences to those contained within Part 1, Division 1 of the Cannabis Act. This includes offences related to possession, possession for purposes of distribution and/or selling and importation of cannabis and use of a young person within these offences.

E. Amend Section 19 of the IRPR to Identify Specific Prescribed Offences Under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA)

Consideration is being given to adding the PCMLTFA as a prescribed Act. This will address a current gap, which pertains to monetary seizures related to potential proceeds of crime. Such offences committed on entry are not currently included within the transborder criminal inadmissibility provision.

If added, the PCMLTFA would be limited to the general offence under subsection 74(1) of the PCMLTFA, specific to subsections 12(1) and 12(4) of this Act. These offences deal with non-report of importation of currency or monetary instruments at a value equal to or greater than the prescribed amount, in addition to the requirement to answer truthfully and present the currency/monetary instruments on request.

F. Amend section 19 of the IRPR to Specify Instructions Related to the Prescribed Offences and Acts of Parliament

To provide greater specificity, consideration is being given to amend section 19 to include a provision that provides instructions on the application of this inadmissibility; specifically that offences that may be prosecuted summarily or by indictment are deemed to be indictable offences. This will provide greater clarity on the offences to which transborder criminal inadmissibility can be applied.

Section 228: Minister’s Delegate (e.g. delegated officers) Authorities

Consideration is being given to amend section 228 of the IRPR. The amendments would allow the Minister’s Delegate (rather than the Immigration Division of the Immigration and Refugee Board) to issue a removal order for transborder criminal inadmissibility for certain straight forward offences committed on entry to Canada. This would streamline the inadmissibility determination process and enable a removal order to be issued directly at the time a person is seeking entry to Canada. This would contribute to timely removal of individuals who commit straightforward offences on entry, rather than allow the foreign national to enter into Canada for an admissibility hearing, which could take several months.

The proposal would not affect particularly vulnerable populations who currently have access to the Immigration Division. If the situation involves an unaccompanied minor or someone who is unable to comprehend the proceedings, the Immigration Division will retain the jurisdiction to determine admissibility and issue removal orders, as is the case today. If implemented, the Minister’s Delegate review function would continue to ensure sufficient procedural fairness for inadmissible persons as is the case today with respect to those inadmissibility grounds which currently fall under the Minister’s Delegate authority.

The following offences under the Criminal Code, IRPA, Firearms Act, Customs Act, CDSA and Cannabis Act are being considered to be transferred to the authority of the Minister’s Delegate. These are considered to be relatively straightforward offences that can occur on entry to Canada, where the evidence for the offence is generally readily available and able to support a determination on inadmissibility for transborder criminality.

A. Criminal Code of Canada

The following firearms, weapons and impaired driving offences within the Criminal Code are being considered to be transferred to the authority of the Minister’s Delegate to issue a removal order:

• Section 86 for improper handling, storing or transporting a firearm, a prohibited or restricted weapon, a prohibited device or ammunition;
• Section 87 for pointing a firearms at another person, whether or not it is loaded;
• Section 90 for carrying a concealed weapon, prohibited device or prohibited ammunition;
• Section 91 for unauthorized possession of a prohibited or restricted firearm or non-restricted firearm;
• Section 95 related to possession of a prohibited or restricted firearm with ammunition;
• Section 104 for unauthorized importation of a prohibited, restricted or non-restricted firearm, prohibited weapon, restricted weapon, prohibited device or any prohibited ammunition;
• Subsection 320.14(1) for operating a conveyance while impaired; and
• Subsection 320.15(1) for refusal to comply with a demand to test for alcohol or drugs where there are reasonable grounds for which the foreign national is operating a vehicle while impaired.

B. Immigration and Refugee Protection Act

The following IRPA offences committed on entry to Canada are being considered to be transferred to the authority of the Minister’s Delegate to issue a removal order:

• Section 122, which pertains to document offences relating to passports, visas or other documents that can be used to establish identity and/or be used for entering or remaining in Canada; and
• Paragraph 124(1)(b) of the IRPA, which relates to the offence of escaping or attempting to escape from lawful custody or detention under this Act.

C. Firearms Act

Consideration is being given to transferring the authority to issue a removal order to the Minister’s Delegate for certain Firearms Act offences. The offences are listed under section 110 and paragraphs 117(a), (h), (i), (j), (k), (k.1), (k.2), (k.3), (l) and (m) of the Firearms Act. These paragraphs relate to offences for license contraventions and contraventions related to the storage, handling, transportation and possession of firearms and weapons as well as destruction of records related to firearms and weapons.

D. Customs Act

The following contraventions under subsection 160(1) of the Customs Act are being considered to be transferred within the authority of the Minister’s Delegate to issue a removal order:

• Section 11 for failing to present oneself on entry, as required;
• Section 12 for non-report of prohibited ammunition, devices, firearms or weapons as defined in the Criminal Code, restricted firearms or weapons as defined in the Criminal Code, non-restricted firearm as defined in the Criminal Code, imitation, automatic or replica firearms as defined in the Criminal Code; and controlled drugs and substances as defined in the Controlled Drugs and Substances Act;
• Section 156 for unlawful possession of blank documents that can be used in accounting for imported goods;
• Subsection 159(1) for smuggling prohibited ammunition, devices, firearms or weapons as defined in the Criminal Code, restricted firearms or weapons as defined in the Criminal Code, non-restricted firearm as defined in the Criminal Code, imitation, automatic or replica firearms as defined in the Criminal Code; controlled drugs and substances as defined in the Controlled Drugs and Substances Act and cannabis as defined in the Cannabis Act.

E. Controlled Drugs and Substances Act

Consideration is being given to provide the authority for the Minister’s Delegate to issue a removal order for offences committed on entry pursuant to sections 4, 5 and 6 of the CDSA, which relate to possession and trafficking of specific substances, in circumstances where the substances identified in such offences is confirmed.

F. Cannabis Act

Lastly, consideration is being given to provide authority for the Minister’s Delegate to issue a removal order for offences committed on entry pursuant to sections 8 and 11 of the Cannabis Act, which relate to the possession and importation of cannabis.

2) Section 229: Immigration Division Authorities

Consideration is being given to amend section 229 of the IRPR. This amendment would give the Immigration Division the authority to issue a removal order for inadmissibility under paragraph 36(2)(d) for the commission of offences on entry that are not listed within the jurisdiction of the Minister’s Delegate in section 228 of the IRPR. This is consistent with the existing regulatory framework and would be done in accordance with the potential changes under consideration, which are detailed above.

How to participate

1. Review the notice
2. Contact us to provide your comments by (30 Days from the date published online)

Contact us

Please submit your questions or comments by email:

Manager
Inadmissibility Policy Unit
Immigration Enforcement, Customs, and External Review Policy Directorate
Canada Border Services Agency
100 Metcalfe St
Ottawa ON K1A 0L8
iepu-upeli@cbsa-asfc.gc.ca

Date modified:

2021-05-25