Bill C-43

1st Session, 41st Parliament,

60-61-62 Elizabeth II, 2011-2012-2013

house of commons of canada

BILL C-43

An Act to amend the Immigration and Refugee Protection Act

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Faster Removal of Foreign Criminals Act.

IMMIGRATION AND REFUGEE PROTECTION ACT

2. Paragraph 4(2)(d) of the Immigration and Refugee Protection Act is replaced by the following:

(d) declarations referred to in section 42.1.

3. Subsection 6(3) of the Act is replaced by the following:

(3) Despite subsection (2), the Minister may not delegate the power conferred by section 22.1 or subsection 42.1(1) or (2) or 77(1).

4. Subsection 14(2) of the Act is amended by striking out “and” at the end of paragraph (f) and by adding the following after paragraph (f):

(f.1) the power to inspect, including the power to require documents to be provided for inspection, for the purpose of verifying compliance with undertakings; and

5. (1) Section 16 of the Act is amended by adding the following after subsection (1):

(1.1) A person who makes an application must, on request of an officer, appear for an examination.

(2) Section 16 of the Act is amended by adding the following after subsection (2):

(2.1) A foreign national who makes an application must, on request of an officer, appear for an interview for the purpose of an investigation conducted by the Canadian Secu- rity Intelligence Service under section 15 of the Canadian Security Intelligence Service Act for the purpose of providing advice or information to the Minister under section 14 of that Act and must answer truthfully all questions put to them during the interview.

6. Section 20 of the Act is amended by adding the following after subsection (1):

(1.1) A foreign national who is the subject of a declaration made under subsection 22.1(1) must not seek to enter or remain in Canada as a temporary resident.

7. Subsection 22(1) of the Act is replaced by the following:

22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).

8. The Act is amended by adding the following after section 22:

22.1 (1) The Minister may, on the Minister’s own initiative, declare that a foreign national, other than a foreign national referred to in section 19, may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations.

(2) A declaration has effect for the period specified by the Minister, which is not to exceed 36 months.

(3) The Minister may, at any time, revoke a declaration or shorten its effective period.

(4) The report required under section 94 must include the number of declarations made under subsection (1) and set out the public policy considerations that led to the making of the declarations.

9. Subsection 25(1) of the Act is replaced by the following:

25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 —, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

10. Subsection 25.1(1) of the Act is replaced by the following:

25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

11. Section 26 of the Act is amended by adding the following after paragraph (b):

(b.1) declarations referred to in subsection 22.1(1);

12. Section 32 of the Act is amended by adding the following after paragraph (d):

(d.1) the conditions that must or may be imposed, individually or by class, on individ- uals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be varied or cancelled;

(d.2) the power to inspect, including the power to require documents to be provided for inspection, for the purpose of verifying compliance with the conditions imposed under paragraphs (d) and (d.1);

(d.3) the consequences of a failure to comply with the conditions referred to in paragraphs (d) and (d.1);

13. (1) Paragraph 34(1)(a) of the Act is replaced by the following:

(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(2) Subsection 34(1) of the Act is amended by adding the following after paragraph (b):

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(2.1) Paragraph 34(1)(f) of the Act is replaced by the following:

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

(3) Subsection 34(2) of the Act is repealed.

14. Subsection 35(2) of the Act is repealed.

15. Subsection 37(2) of the Act is replaced by the following:

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

16. (1) Paragraph 40(2)(a) of the Act is replaced by the following:

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

(2) Section 40 of the Act is amended by adding the following after subsection (2):

(3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

17. Section 42 of the Act is renumbered as subsection 42(1) and is amended by adding the following:

(2) In the case of a foreign national referred to in subsection (1) who is a temporary resident or who has made an application for temporary resident status or an application to remain in Canada as a temporary resident,

(a) the matters referred to in paragraph (1)(a) constitute inadmissibility only if the family member is inadmissible under section 34, 35 or 37; and

(b) the matters referred to in paragraph (1)(b) constitute inadmissibility only if the foreign national is an accompanying family member of a person who is inadmissible under section 34, 35 or 37.

18. The Act is amended by adding the following after section 42:

42.1 (1) The Minister may, on application by a foreign national, declare that the matters referred to in section 34, paragraphs 35(1)(b) and (c) and subsection 37(1) do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest.

(2) The Minister may, on the Minister’s own initiative, declare that the matters referred to in section 34, paragraphs 35(1)(b) and (c) and subsection 37(1) do not constitute inadmissibility in respect of a foreign national if the Minister is satisfied that it is not contrary to the national interest.

(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.

19. Section 44 of the Act is amended by adding the following after subsection (3):

(4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person.

(5) The prescribed conditions imposed under subsection (4) cease to apply only when

(a) the person is detained;

(b) the report on inadmissibility on grounds of security is withdrawn;

(c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security;

(d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or

(e) a removal order is enforced against the person in accordance with the regulations.

20. (1) Subsection 46(1) of the Act is amended by striking out “or” at the end of paragraph (c), by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) on approval by an officer of their application to renounce their permanent resident status.

(2) Section 46 of the Act is amended by adding the following after subsection (1):

(1.1) A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved.

21. Section 53 of the Act is amended by adding the following after paragraph (a):

(a.1) the form and manner in which an application to renounce permanent resident status must be made and the conditions that must be met before such an application may be approved;

22. Section 56 of the Act is renumbered as subsection 56(1) and is amended by adding the following:

(2) If an officer orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the officer must also impose the prescribed conditions on the person.

(3) The prescribed conditions imposed under subsection (2) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

23. Section 58 of the Act is amended by adding the following after subsection (3):

(4) If the Immigration Division orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, it shall also impose the prescribed conditions on the person.

(5) The prescribed conditions imposed under subsection (4) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

24. Subsection 64(2) of the Act is replaced by the following:

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

25. The Act is amended by adding the following after section 77:

77.1 (1) If a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security is referred to the Federal Court and no warrant for the person’s arrest and detention is issued under section 81, the Minister of Public Safety and Emergency Preparedness shall impose the prescribed conditions on the person who is named in the certificate.

(2) The prescribed conditions imposed under subsection (1) cease to apply only when

(a) the person is detained;

(b) the certificate stating that the person is inadmissible on grounds of security is withdrawn;

(c) a final determination is made that the certificate is not reasonable;

(d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or

(e) a removal order is enforced against the person in accordance with the regulations.

26. Section 82 of the Act is amended by adding the following after subsection (5):

(6) If the judge orders the release, under paragraph (5)(b), of a person who is named in a certificate stating that they are inadmissible on grounds of security, the judge shall also impose the prescribed conditions on the person.

(7) The prescribed conditions imposed under subsection (6) are not subject to review under subsection (4).

(8) If a person is subject to the prescribed conditions imposed under subsection (6), any variation of conditions under subsection 82.1(1) or paragraph 82.2(3)(c) is not to result in the person being subject to conditions that do not include those prescribed conditions.

(9) The prescribed conditions imposed under subsection (6) cease to apply only when one of the events described in paragraphs 77.1(2)(a) to (e) occurs.

27. Subsection 87.2(1) of the Act is replaced by the following:

87.2 (1) The regulations may provide for any matter relating to the application of this Division and may include provisions respecting

(a) the conditions that must be imposed under subsection 77.1(1) or 82(6); and

(b) the conditions and qualifications that persons must meet to be included in the list referred to in subsection 85(1) and the additional qualifications that are assets that may be taken into account for that purpose.

TRANSITIONAL PROVISIONS

28. In sections 29 to 35, “the Act” means the Immigration and Refugee Protection Act.

29. Subsection 25(1) of the Act, as it read immediately before the day on which section 9 comes into force, continues to apply in respect of a request made under that subsection 25(1) if, before the day on which section 9 comes into force, no decision has been made in respect of the request.

30. (1) When circumstances permit the officer to do so, an officer referred to in subsection 44(4) of the Act must impose the conditions referred to in that subsection on a permanent resident or foreign national who, on the day on which this section comes into force,

(a) is the subject of either a report on inadmissibility on grounds of security that was referred to the Immigration Division before the day on which this section comes into force or a removal order for inadmissibility on grounds of security that was made before the day on which this section comes into force;

(b) is not detained; and

(c) is not subject to a release order with conditions that was made under section 58 of the Act.

(2) The conditions imposed under subsection (1) are deemed to have been imposed under subsection 44(4) of the Act.

31. (1) On application by the Minister of Public Safety and Emergency Preparedness, the Immigration Division must vary a release order with conditions that was made under section 58 of the Act before the day on which this section comes into force in order to impose the conditions referred to in subsection 58(4) of the Act on a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security or a removal order for inadmissibility on grounds of security.

(2) The conditions imposed under subsection (1) are deemed to have been imposed under subsection 58(4) of the Act.

32. Subsection 64(2) of the Act, as it read immediately before the day on which section 24 comes into force, continues to apply in respect of a person who had a right of appeal under subsection 63(1) of the Act before the day on which section 24 comes into force.

33. Subsection 64(2) of the Act, as it read immediately before the day on which section 24 comes into force, continues to apply in respect of a person who is the subject of a report that is referred to the Immigration Division under subsection 44(2) of the Act before the day on which section 24 comes into force.

34. Section 77.1 of the Act applies with respect to a certificate that was referred to the Federal Court before the day on which this section comes into force.

35. (1) On application by the Minister of Public Safety and Emergency Preparedness, a judge, as defined in section 76 of the Act, must vary an order that was made under paragraph 82(5)(b) of the Act before the day on which this section comes into force in order to impose the conditions referred to in subsection 82(6) of the Act on a permanent resident or foreign national who is named in a certificate stating that they are inadmissible on grounds of security.

(2) The conditions imposed under subsection (1) are deemed to have been imposed under subsection 82(6) of the Act.

COORDINATING AMENDMENTS

36. (1) Subsections (2) to (11) apply if Bill C-31, introduced in the 1st session of the 41st Parliament and entitled the Protecting Canada’s Immigration System Act (referred to in this section as the “other Act”), receives royal assent.

(2) On the first day on which both section 3 of the other Act and section 3 of this Act are in force, subsection 6(3) of the Immigration and Refugee Protection Act is replaced by the following:

(3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1), section 22.1 or subsection 42.1(1) or (2) or 77(1).

(3) On the first day on which both section 13 of the other Act and section 9 of this Act are in force, subsection 25(1) of the Immigration and Refugee Protection Act is replaced by the following:

25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

(4) If section 24 of the other Act comes into force before section 22 of this Act, then that section 22 is replaced by the following:

22. Section 56 of the Act is amended by adding the following after subsection (2):

(3) If an officer orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the officer must also impose the prescribed conditions on the person.

(4) The prescribed conditions imposed under subsection (3) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

(5) If section 22 of this Act comes into force before section 24 of the other Act, then

(a) that section 24 is deemed never to have come into force and is repealed; and

(b) section 56 of the Immigration and Refugee Protection Act is amended by adding the following after subsection (1):

(1.1) Despite subsection (1), a designated foreign national who is detained under this Division and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question must be detained until

(a) a final determination is made to allow their claim for refugee protection or application for protection;

(b) they are released as a result of the Immigration Division ordering their release under section 58; or

(c) they are released as a result of the Minister ordering their release under section 58.1.

(6) If section 24 of the other Act comes into force on the same day as section 22 of this Act, then that section 24 is deemed to have come into force before that section 22 and subsection (4) applies as a consequence.

(7) If subsection 26(2) of the other Act comes into force before section 23 of this Act,

(a) that section 23 is replaced by the following:

23. Section 58 of the Act is amended by adding the following after subsection (4):

(5) If the Immigration Division orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, it shall also impose the prescribed conditions on the person.

(6) The prescribed conditions imposed under subsection (5) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

(b) every reference to subsection 58(4) in section 31 of this Act is replaced by a reference to subsection 58(5).

(8) If section 23 of this Act comes into force before subsection 26(2) of the other Act, then

(a) that subsection 26(2) is deemed never to have come into force and is repealed;

(b) section 58 of the Immigration and Refugee Protection Act is amended by adding the following after subsection (3):

(3.1) If the Immigration Division orders the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, it shall also impose any condition that is prescribed.

(c) every reference to subsection 58(4) in the following provisions of the Immigration and Refugee Protection Act is replaced by a reference to subsection 58(3.1):

(i) paragraph 11(1.3)(a), as enacted by section 5 of the other Act,

(ii) paragraph 20.2(3)(a), as enacted by section 10 of the other Act,

(iii) paragraph 24(7)(a), as enacted by section 12 of the other Act, and

(iv) paragraph 25(1.03)(a), as enacted by subsection 13(1) of the other Act.

(9) If subsection 26(2) of the other Act comes into force on the same day as section 23 of this Act, then that subsection 26(2) is deemed to have come into force before that section 23 and subsection (7) applies as a consequence.

(10) On the first day on which both section 27 of the other Act and section 23 of this Act are in force, section 58.1 of the Immigration and Refugee Protection Act is amended by adding the following after subsection (3):

(4) If the Minister orders the release of a designated foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the Minister must also impose the prescribed conditions on the person.

(5) The prescribed conditions imposed under subsection (4) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

(11) On the first day on which both section 28 of the other Act and section 23 of this Act are in force, section 61 of the Immigration and Refugee Protection Act is amended by adding the following after paragraph (a.2):

(a.3) the conditions that an officer, the Immigration Division or the Minister must impose with respect to the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security or a removal order for inadmissibility on grounds of security;

37. (1) Subsections (2) to (4) apply if Bill C-38, introduced in the 1st session of the 41st Parliament and entitled the Jobs, Growth and Long-term Prosperity Act (referred to in this section as the “other Act”), receives royal assent.

(2) If section 705 of the other Act comes into force before section 12 of this Act, then

(a) that section 12 is deemed never to have come into force and is repealed; and

(b) paragraphs 32(d.1) to (d.3) of the Immigration and Refugee Protection Act are replaced by the following:

(d.1) the conditions that must or may be imposed, individually or by class, on individ- uals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be varied or cancelled;

(d.2) the power to inspect, including the power to require documents to be provided for inspection, for the purpose of verifying compliance with the conditions imposed under paragraphs (d) and (d.1);

(d.3) the consequences of a failure to comply with the conditions referred to in paragraphs (d) and (d.1);

(3) If section 12 of this Act comes into force before section 705 of the other Act, that section 705 is deemed never to have come into force and is repealed.

(4) If section 705 of the other Act and section 12 of this Act come into force on the same day, then that section 12 is deemed to have come into force before that section 705 and subsection (3) applies as a consequence.

COMING INTO FORCE

38. (1) Sections 6 to 8, 16, 17 and 20 come into force on a day or days to be fixed by order of the Governor in Council.

(2) Sections 19, 22, 23, 25 to 27, 30, 31, 34 and 35 come into force on a day to be fixed by order of the Governor in Council.