Issue notes: Standing Committee on Public Safety and National Security: Canada’s Security Posture in Relation to Russia (June 9, 2022)

Border security

Proposed response

The CBSA uses intelligence and data to inform risk-based admissibility decisions for people and goods.

The CBSA is one of eight core members of Canada’s security and intelligence community and collaborates closely with domestic partners such as Immigration, Refugees and Citizenship Canada, the RCMP, CSIS, FINTRAC, and Global Affairs Canada (GAC) to maintain the integrity of Canada’s borders and supply chains.

The CBSA also collaborates closely with international partners, particularly authorities in the United States, the United Kingdom, Australia, and New Zealand. This allows the CBSA to quickly identify threats with a border nexus, and develop and implement timely responses in all modes of travel.

The CBSA, in partnership with law enforcement and public safety authorities, regularly adjusts its frontline posture to respond to threats presented by arriving goods across different modes.

The five major commercial vessel ports that receive the majority of Canada’s containerized cargo – in Montreal, Halifax, Saint John, Vancouver, and Prince Rupert – have permanent radiation screening portals, designed for scanning large quantities of containers and continuously monitoring for radiation.

All containers entering Canada by marine must report to one of these five commercial vessel ports as their first point of arrival into Canada. The containers are then screened for the presence of radiation.

The Special Economic Measures Act

The CBSA plays a key role in the implementation of trade and economic sanctions through the management and enforcement of cross-border trade.

As part of implementing trade and economic sanctions, the CBSA also works closely with Finance Canada, and GAC to operationalize changes to the Customs Tariff, through the use of trade tools like the Most-Favoured-Nation status, import bans, and export restrictions to disadvantage and disrupt trade to/from sanctioned states and non-foreign state actors.

Additionally, the CBSA helps GAC administer the Special Economic Measures Act (SEMA), the United Nations Act, and the Export and Import Permits Act, and associated regulations.

The CBSA collaborates with domestic and international partners to collect information and intelligence to help frontline officers interdict inadmissible individuals and goods listed under SEMA.

The CBSA supports GAC and Transport Canada to ensure American and Canadian sanctions are appropriately implemented in shared waterways, such as the St. Lawrence Seaway.

The CBSA administers the Customs Act and the Immigration and Refugee Act, to verify the admissibility of the crew, supernumeraries, passengers, cargo, and the conveyance itself.

The CBSA also administers SEMA measures in other modes, such as rail, land, and air, interdicting cargo and persons of concern who arrive at Canada’s land borders or by air.

Background

Imposing trade and economic sanctions against foreign states and non-state actors that have significant political influence is an important instrument for the international community in enforcing international norms and laws. The CBSA helps Global Affairs Canada (GAC) administrate the Special Economic Measures Act, the United Nations Act, and the Export and Import Permits Act and associated regulations.

The CBSA’s Intelligence and Targeting programs work with domestic and international partners to collect information and intelligence to help frontline officers interdict individuals and goods listed under SEMA and which may be inadmissible to Canada.

When goods arrive at the border, the CBSA reviews import/export documents (bills of lading, invoices and certificates of origin issued by the relevant government authority) to determine if the goods or shipment/transactions are subject to prohibition or control measures. Shipments that appear to contravene trade and economic sanctions will be detained based on the authority provided by the Customs Act. GAC is then notified of possible infractions of the legislation under SEMA for further assessment.

The CBSA also regularly receives updates from GAC regarding new individuals, entities or goods that are subject to sanctions (such as technology) and ensures frontline border services officers are well supported to prevent the entry or export of goods in all streams including marine, air, land, rail and the courier/postal stream. Additionally, GAC provides the CBSA with recommendations related to detained shipments. The border services officers apply the recommendations at the border points of entry, including potential further enforcement actions such as seizures or charges by the CBSA or the RCMP.

Timely CBSA recommendations ensure the appropriate action can be taken at the time of entry (which is docking for vessels). Should a vessel that is subject to sanctions be brought into port by the RCMP and/or the coast guard, crew and cargo will be processed as usual by the CBSA, including screening for inadmissible persons and/or goods.

Further, the CBSA supports GAC and Transport Canada to ensure that U.S. and Canadian sanctions are appropriately implemented in shared waterways, such as the St. Lawrence Seaway.

S-8, An Act to amend the Immigration and Refugee Protection Act

Proposed response

The Government of Canada has signalled its response to Russian aggression in Ukraine through the use of economic sanctions. Since Russia’s invasion of Ukraine on February 24, 2022, Canada has sanctioned more than 500 individuals and entities from Russia, Ukraine and Belarus.

Legislative changes to the Immigration and Refugee Protection Act (IRPA) will be introduced to ensure foreign nationals subject to sanctions under the Special Economic Measures Act (SEMA) are inadmissible to Canada. Sanctions against Russia have already been announced by Global Affairs Canada.

These changes would allow Immigration, Refugees and Citizenship Canada (IRCC) officials to deny temporary visas overseas, and will also allow the Canada Border Services Agency (CBSA) to deny entry to, and remove, individuals who are subject to sanctions.

The IRPA defines factors which render a person inadmissible to Canada and establishes the applicable criteria for all foreign nationals and permanent residents who seek to enter or remain in Canada. Once in force, these amendments will apply to all foreign nationals who are subject to sanctions by Canada and to any accompanying family members.

Background

Global Affairs Canada has imposed sanctions against individuals who are part of, or are key supports of, the Russian regime. The sanctions were issued based on the grounds of “grave breach of international peace and security” set out within SEMA. The IRPA will be expanded to include all grounds listed under SEMA, including this ground.

Foreign nationals who are inadmissible to Canada may have their applications for temporary resident visas refused or cancelled by IRCC officials, or may have their applications to enter Canada at ports of entry refused and removed from Canada by CBSA officials.

Foreign nationals who are inadmissible to Canada due to sanctions will still be eligible to have a refugee claim considered by the Refugee Protection Division of the Immigration and Refugee Board, and will have access to a full pre-removal risk assessment.

All persons seeking entry to Canada must present to the CBSA and may be subject to a more in-depth exam. Admissibility of all non-citizens is decided on a case-by-case basis and based on the information made available at the time of entry.

On May 17, 2022, Senator Gold introduced S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations. Following speeches from Senator Harder and Senator MacDonald, S-8 was quickly adopted at Second Reading and referred to the Standing Senate Committee on Foreign Affairs and International Trade.

S-8 Immigration and Refugee Protection Act amendments: Questions and answers

Question 1. What amendments are being made to the Immigration and Refugee Protection Act (IRPA)?

The Canada Border Services Agency (CBSA) has introduced legislative changes that would ensure all foreign nationals subjected to sanctions under the Special Economic Measures Act (SEMA) would be inadmissible to Canada pursuant to the Immigration and Refugee Protection Act (IRPA). The amendments will also ensure that members of non-state groups subjected to multilateral sanctions, such as the Taliban, the Islamic State of Iraq and the Levant (ISIL), and al-Qaeda, can also be found inadmissible to Canada.

Question 2. Why are these changes required now?

Amendments are needed to close a gap in Canada’s inadmissibility framework as it relates to sanctions. The changes we are introducing today will ensure that no foreign nationals sanctioned under the SEMA will have unfettered access to travel to, enter, or remain in Canada.

Two new sanction-related inadmissibility provisions within IRPA were brought into force in 2017 by Senate Public Bill S-226. This bill brought into force an inadmissibility provision for foreign nationals sanctioned pursuant to SEMA, but only in circumstances of gross and systematic human rights violations, and significant acts of corruption. This meant that foreign nationals sanctioned under other provisions of the SEMA such as “a grave breach of international peace and security,” which is the circumstance used for the recent sanctions against Russian officials, were not considered inadmissible to Canada.

Furthermore, in 2017, the Standing Committee on Foreign Affairs and International Development released a report entitled “A Coherent and Effective Approach to Canada’s Sanctions Regimes: Sergei Magnitsky and Beyond,” recommending that IRPA be amended to designate all individuals sanctioned under SEMA as inadmissible to Canada. These amendments are partially in response to this report.

Amendments are required to ensure that foreign nationals sanctioned pursuant to all circumstances outlined in the SEMA are inadmissible under IRPA.

Question 3. Are all foreign nationals who are targeted by Canadian sanctions issued under the SEMA going to be prevented from entering Canada?

Yes. The legislative changes introduced today will ensure that all foreign nationals subjected to unilateral economic sanctions issued under the SEMA will be considered inadmissible to Canada.

Question 4. If a person was listed and is subsequently delisted, how will this impact their admissibility status?

Individuals who are no longer subject to unilateral or multilateral sanctions would not be inadmissible based on the sanctions provisions of the IRPA. If they seek to come to Canada, their admissibility would be assessed accordingly. If, however, they had been issued a deportation order as a result of seeking to enter or remain in Canada while inadmissible, the individual would require an Authorization to Return in order to be able to return to Canada pursuant to existing requirements of the Act.

Question 5. Will the new inadmissibility provisions apply to everyone who is listed under the SEMA or the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)?

The sanctions-related inadmissibility provisions are only applicable to foreign nationals and their accompanying family members; it will not apply to permanent residents.

Question 6. How many individuals will these legislative amendments impact?

These changes will impact any foreign national currently subjected to SEMA sanctions, where the ground for issuing the sanctions was based on “a grave breach of international peace and security.” Prior to the recent sanctions against individuals within the Russian Federation, this number was 853 individuals. This includes sanctions issued against foreign nationals in Myanmar, Iran, Syria, Ukraine, Zimbabwe, and Russia. The recently imposed sanctions against individuals in Russia is 600, as of April 5, 2022. These legislative amendments would therefore ensure that 1,293 individuals currently subjected to SEMA sanctions would be inadmissible to Canada.

Question 7. Will the proposed amendment alter access to existing review mechanisms? How does the proposed amendment impact access to facilitative mechanisms?

Under the proposed amendments, foreign nationals inadmissible for sanctions will not have access to Humanitarian & Compassionate considerations, the Immigration Appeal Division of the Immigration and Refugee Board (IRB), nor will they have access to ministerial relief. The sole recourse available is an application to the Federal Court for leave and judicial review.

Any request for recourse from sanctions themselves will need to be made to the sanction-issuing body. For instance, foreign nationals inadmissible due to sanctions imposed unilaterally by Canada could submit an application for delisting to the Minister of Foreign Affairs, which would require that the foreign national provide a detailed description of the relevant circumstances and reasons supporting the application for delisting.

Question 8. Will individuals inadmissible for sanctions still be able to make a refugee claim?

Foreign nationals inadmissible due solely to sanctions would not be ineligible to make a refugee claim and could have access to pre-removal risk assessment. However, if a foreign national who is inadmissible due to sanctions is recognized as a protected person, they would not be eligible to become a permanent resident while sanctions are in place.

Question 9. What government department is responsible for imposing sanctions?

Global Affairs Canada (GAC) is responsible for making recommendations to Cabinet to impose sanctions. The CBSA supports GAC by ensuring all inadmissible people are not allowed into the country.

Question 10. Will the proposed amendments result in a reduction in fairness or transparency in the inadmissibility decision-making process?

No. A foreign national will be considered inadmissible as a result of being subjected to a unilateral or multilateral sanction. All that is required for a finding of inadmissibility is proof of identity, and proof that a person is on a sanctions list. As mentioned, sanctioned individuals will still have the ability to submit an application for delisting to the Minister of Foreign Affairs, and will also be able to submit an application to the Federal Court for leave and judicial review of any inadmissibility decision.

Question 11. What kind of immigration enforcement activities will be carried out against sanctioned individuals?

CBSA officials serving as the Minister’s Delegate will have the authority to issue the applicable removal order (i.e. deportation order) for individuals who are inadmissible for the sanction-related inadmissibility provisions. Sanctioned individuals under removal orders would have access to a pre-removal risk assessment assessed by officials of the Department of Immigration, Refugees and Citizenship Canada.

Question 12. What is IRCC’s role in ensuring that an individual, inadmissible under this new amendment, is unable to enter Canada?

The legislative changes introduced will ensure that all foreign nationals subjected to unilateral sanctions will be considered inadmissible to Canada. IRCC will apply this inadmissibility when making determinations on applications made under Canada’s immigration system.

Screening is an important part of the overall assessment of whether a person is admissible to Canada and IRCC’s highly trained and professional migration officers conduct screening of applications against departmental databases and risk indices. If the officer determines that the individual has been sanctioned, they would be considered inadmissible to Canada and their application could be refused.