Bill C-4

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First Reading

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1st Session, 41st Parliament,

60 Elizabeth II, 2011

house of commons of canada

BILL C-4

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act

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

SHORT TITLE

Short title

1. This Act may be cited as the Preventing Human Smugglers from Abusing Canada’s Immigration System Act.

2001, c. 27

IMMIGRATION AND REFUGEE PROTECTION ACT

2. Subsection 2(1) of the Immigration and Refugee Protection Act is amended by adding the following in alphabetical order:

“designated foreign national”
« étranger désigné »

“designated foreign national” has the meaning assigned by subsection 20.1(2).

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

Exception

(3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1) or 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).

4. Section 11 of the Act is amended by adding the following after subsection (1):

Restriction

(1.1) A designated foreign national may not make an application for permanent residence under subsection (1)

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

Suspension of application

(1.2) The processing of an application for permanent residence under subsection (1) of a foreign national who, after the application is made, becomes a designated foreign national is suspended

(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

Refusal to consider application

(1.3) The officer may refuse to consider an application for permanent residence made under subsection (1) if

(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.1) or (1.2).

5. The Act is amended by adding the following after section 20:

Designation — human smuggling or other irregular arrival

20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she

(a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or

(b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

Effect of designation

(2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the subject of the designation becomes a designated foreign national unless, on arrival, they hold the visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.

Statutory Instruments Act

(3) An order made under subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

Application for permanent residence — restriction

20.2 (1) A designated foreign national may not apply to become a permanent resident

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

Suspension of application for permanent residence

(2) The processing of an application for permanent residence of a foreign national who, after the application is made, becomes a designated foreign national is suspended

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

Refusal to consider application

(3) The officer may refuse to consider an application for permanent residence if

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1) or (2).

6. Section 21 of the Act is amended by adding the following after subsection (2):

Pending application — subsection 108(2)

(3) A person in respect of whom the Minister has made an application under subsection 108(2) may not become a permanent resident under subsection (2) while the application is pending.

7. Section 24 of the Act is amended by adding the following after subsection (4):

Restriction — designated foreign national

(5) A designated foreign national may not request a temporary resident permit

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

Suspension of request

(6) The processing of a request for a temporary resident permit of a foreign national who, after the request is made, becomes a designated foreign national is suspended

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

Refusal to consider request

(7) The officer may refuse to consider a request for a temporary resident permit if

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6).

8. Section 25 of the Act is amended by adding the following after subsection (1):

Restriction — designated foreign national

(1.01) A designated foreign national may not make a request under subsection (1)

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

Suspension of request

(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

Refusal to consider request

(1.03) The Minister may refuse to consider a request under subsection (1) if

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).

9. The Act is amended by adding the following after section 31:

Refugee Travel Document

Designated foreign national

31.1 For the purposes of Article 28 of the Refugee Convention, a designated foreign national whose claim for refugee protection or application for protection is accepted is lawfully staying in Canada only if they become a permanent resident or are issued a temporary resident permit under section 24.

10. (1) Paragraph 55(3)(b) of the Act is replaced by the following:

(b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality.

(2) Section 55 of the Act is amended by adding the following after subsection (3):

Mandatory arrest and detention — designated foreign national

(3.1) If a designation is made under subsection 20.1(1), an officer must

(a) detain, on their entry into Canada, a foreign national who, as a result of the designation, is a designated foreign national; or

(b) arrest and detain without a warrant a foreign national who, after their entry into Canada, becomes a designated foreign national as a result of the designation, or issue a warrant for their arrest and detention.

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

Period of detention — designated foreign national

(2) Despite subsection (1), a designated foreign national who is detained under this Division 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

12. The Act is amended by adding the following after section 57:

Initial review — designated foreign national

57.1 (1) Despite subsections 57(1) and (2), in the case of a designated foreign national who is in detention, the Immigration Division must review the reasons for their continued detention on the expiry of 12 months after the day on which that person is taken into detention and may not do so before the expiry of that period.

Further review — designated foreign national

(2) Despite subsection 57(2), in the case of a designated foreign national who is in detention, the Immigration Division must review again the reasons for their continued detention on the expiry of six months after the day on which the previous review was conducted — under this subsection or subsection (1) — and may not do so before the expiry of that period.

Presence

(3) In a review under subsection (1) or (2), the officer must bring the designated foreign national before the Immigration Division or to a place specified by it.

13. (1) Paragraphs 58(1)(c) and (d) of the Act are replaced by the following:

(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;

(d) the Minister is of the opinion that the identity of the foreign national who is not a designated foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or

(e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national has not been established.

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

Conditions — designated foreign national

(4) If the Immigration Division orders the release of a designated foreign national, it shall also impose any condition that is prescribed.

14. The Act is amended by adding the following after section 58:

Release — Minister

58.1 The Minister may, on request of a designated foreign national, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release. The Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.

15. Paragraph 61(a) of the Act is replaced by the following:

(a) grounds for and criteria with respect to the release of persons from detention;

(a.1) the type of conditions that an officer, the Immigration Division or the Minister may impose with respect to the release of a person from detention;

(a.2) the type of conditions that the Immigration Division must impose with respect to the release of a designated foreign national;

16. The Act is amended by adding the following after section 98:

Requirement to report

98.1 (1) A designated foreign national on whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.

Obligation when reporting

(2) A designated foreign national who is required to report to an officer must answer truthfully all questions put to him or her and must provide any information and documents that the officer requests.

Regulations

98.2 The regulations may provide for any matter relating to the application of section 98.1 and may include provisions respecting the requirement to report to an officer.

2010, c. 8, s. 13(1)

17. Subsections 110(1) and (2) of the Act are replaced by the following:

Appeal

110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.

Restriction on appeals

(2) Despite subsection (1), no appeal may be made in respect of the following:

(a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national;

(b) a determination that a refugee protection claim has been withdrawn or abandoned;

(c) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; or

(d) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection.

18. (1) Subsection 117(1) of the Act is replaced by the following:

Organizing entry into Canada

117. (1) No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.

(2) The portion of subsection 117(2) of the French version of the Act before paragraph (a) is replaced by the following:

Peines

(2) Quiconque contrevient au paragraphe (1) relativement à moins de dix personnes commet une infraction et est passible, sur déclaration de culpabilité :

(3) Subsection 117(3) of the French version of the Act is replaced by the following:

Peines

(3) Quiconque contrevient au paragraphe (1) relativement à un groupe de dix personnes et plus commet une infraction et est passible, sur déclaration de culpabilité par mise en accusation, d’une amende maximale de un million de dollars et de l’emprisonnement à perpétuité, ou de l’une de ces peines.

(4) Section 117 of the Act is amended by adding the following after subsection (3):

Minimum penalty — fewer than 50 persons

(3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of

(a) three years, if either

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

(b) five years, if both

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

Minimum penalty — 50 persons or more

(3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of

(a) five years, if either

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

(b) 10 years, if both

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

19. (1) The portion of subsection 121(1) of the Act before paragraph (b) is replaced by the following:

Aggravating factors

121. The court, in determining the penalty to be imposed under section 120, shall take into account whether

(a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence;

(2) Paragraph 121(d) of the French version of the Act is replaced by the following:

d) par suite de la perpétration de l’infraction, une personne a été soumise à un traitement dégradant ou attentatoire à la dignité humaine, notamment en ce qui touche les activités professionnelles, la santé ou l’exploitation sexuelle.

(3) Subsection 121(2) of the Act is repealed.

20. The Act is amended by adding the following after section 121:

Definition of “criminal organization”

121.1 (1) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii) and paragraph 121(b), “criminal organization” means a criminal organization as defined in subsection 467.1(1) of the Criminal Code.

Definition of “terrorist group”

(2) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii), “terrorist group” means a terrorist group as defined in subsection 83.01(1) of the Criminal Code.

21. (1) The portion of subsection 123(2) of the French version of the Act before paragraph (a) is replaced by the following:

Circonstances aggravantes

(2) Le tribunal tient compte dans l’infliction de la peine des circonstances suivantes :

(2) Paragraph 123(2)(a) of the Act is replaced by the following:

(a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in section 121.1; and

2001, c. 32, par. 81(3)(b)

22. Section 131 of the French version of the Act is replaced by the following:

Aide

131. Commet une infraction quiconque, sciemment, incite, aide ou encourage ou tente d’inciter, d’aider ou d’encourager une personne à commettre toute infraction visée aux articles 117, 118, 119, 122, 124 ou 129 ou lui conseille de la commettre ou complote à cette fin ou est un complice après le fait; l’auteur est passible, sur déclaration de culpabilité, de la peine prévue à la disposition en cause.

23. The Act is amended by adding the following after section 133:

Limitation period for summary conviction offences

133.1 (1) A proceeding by way of summary conviction for an offence under section 117, 126 or 127, or section 131 as it relates to section 117, may be instituted at any time within, but not later than, 10 years after the day on which the subject-matter of the proceeding arose, and a proceeding by way of summary conviction for any other offence under this Act may be instituted at any time within, but not later than, five years after the day on which the subject-matter of the proceeding arose.

Application

(2) Subsection (1) does not apply if the subject-matter of the proceeding arose before the day on which this section comes into force.

2010, c. 8

BALANCED REFUGEE REFORM ACT

24. Subsection 15(3) of the Balanced Refugee Reform Act is amended by replacing the paragraph 112(2)(b.1) that it enacts with the following:

(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;

1994, c. 40

MARINE TRANSPORTATION SECURITY ACT

2001, c. 29, s. 56

25. (1) The portion of subsection 5(2) of the Marine Transportation Security Act before paragraph (a) is replaced by the following:

Offences relating to regulations — general

(2) Every person who contravenes a regulation made under subsection (1), other than a provision that sets out an obligation described in subsection (3), is guilty of an offence punishable on summary conviction and liable

(2) Section 5 of the Act is amended by adding the following after subsection (2):

Offences — information to be reported before vessel enters Canadian waters

(3) Every individual who contravenes, in a regulation made under subsection (1), a provision that sets out an obligation to provide information required to be reported before a vessel enters Canadian waters, is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $75,000 or to imprisonment for a term of not more than one year or to both; or

(b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months or to both.

26. The Act is amended by adding the following after section 5:

Regulations — disclosure of information

5.1 (1) The Governor in Council may make regulations respecting the disclosure by the Minister to departments or agencies of the Government of Canada or members or agents of such departments or agencies, for the purpose of protecting the safety or security of Canada or Canadians, of information collected for the purposes of this Act in respect of any vessel referred to in subsection (2).

Vessels

(2) The vessels in respect of which the information may be disclosed are those that, in the Minister’s opinion, may pose a threat to the safety or security of Canada or Canadians.

27. Section 17 of the Act is replaced by the following:

Offences relating to directions — operator

17. (1) An operator of a vessel that contravenes a direction is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and for any subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than two years or to both, or

(ii) in the case of a corporation, for a first offence, to a fine of not more than $500,000, and for any subsequent offence, to a fine of not more than $1,000,000; or

(b) on summary conviction

(i) in the case of an individual, for a first offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months or to both, and for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, or

(ii) in the case of a corporation, for a first offence, to a fine of not more than $250,000, and for any subsequent offence, to a fine of not more than $500,000.

Offences relating to directions — vessel

(2) A vessel that contravenes a direction is guilty of an offence and liable on summary conviction, for a first offence, to a fine of not more than $100,000, and for any subsequent offence, to a fine of not more than $200,000.

28. (1) The portion of subsection 25(4) of the Act before paragraph (a) is replaced by the following:

Offence

(4) Every person who contravenes subsection (1) or (2) or any of paragraphs (3)(b) to (e) is guilty of an offence and liable

(2) Section 25 of the Act is amended by adding the following after subsection (4):

Offence

(5) Every person who contravenes paragraph (3)(a) is guilty of an offence and liable

(a) on conviction on indictment

(ii) in the case of a corporation, for a first offence, to a fine of not more than $500,000, and for any subsequent offence, to a fine of not more than $1,000,000; or

(b) on summary conviction

(ii) in the case of a corporation, for a first offence, to a fine of not more than $250,000, and for any subsequent offence, to a fine of not more than $500,000.

29. Section 26 of the English version of the Act is replaced by the following:

Continuing offence

26. If an offence is committed or continued on more than one day, the person or vessel that committed it is liable to be convicted of a separate offence for each day on which the offence is committed or continued.

30. Section 28 of the Act is amended by adding the following after subsection (4):

Vessels — proof related to directions

(5) In a prosecution of a vessel for an offence under subsection 17(2), evidence that a direction was given to the master or to any person on board who is, or appears to be, in command or charge of the vessel, other than the pilot, is, in the absence of evidence to the contrary, proof that it was given to the vessel.

Vessels — proof of offence

(6) In a prosecution of a vessel for an offence under subsection 17(2), the vessel is liable to be convicted of the offence if it is established that the offence was committed by the operator or by any person on board, other than a security inspector, whether or not the person on board has been identified, prosecuted or convicted.

31. Section 29 of the Act is replaced by the following:

Defence

29. A person shall not be convicted of an offence under this Act if they establish that they exercised all due diligence to prevent its commission, and a vessel shall not be convicted of an offence under subsection 17(2) if the person who committed the act or omission that constitutes the offence establishes that they exercised all due diligence to prevent its commission.

32. Subsection 31(1) of the Act is replaced by the following:

Recovery of fines

31. (1) If a fine imposed on a person or vessel convicted of an offence under this Act is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same force and effect, and all proceedings may be taken on it, as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person or vessel for a debt in the amount of the fine.

TRANSITIONAL PROVISIONS

Definition of “the Act”

33. In sections 34 and 35, “the Act” means the Immigration and Refugee Protection Act.

Designation under section 20.1

34. (1) A designation may be made under subsection 20.1(1) of the Act, as enacted by section 5, in respect of an arrival in Canada — after March 31, 2009 but before the day on which this section comes into force — of a group of persons.

Effects of designation to apply

(2) For greater certainty and subject to subsection (3), if a designation that is authorized under subsection (1) is made, then the definition “designated foreign national” in subsection 2(1) of the Act, as enacted by section 2, and any provisions of the Act, as enacted by this Act, that provide for the effects of the designation apply.

Exception — person not in detention

(3) If a designation that is authorized under subsection (1) is made, then paragraph 55(3.1)(b) of the Act, as enacted by subsection 10(2), does not apply in respect of a person who, as a result of that designation, becomes a designated foreign national and who, on the day on which this section comes into force, is not in detention under Division 6 of Part 1 of the Act.

Review of grounds for detention

35. Paragraph 58(1)(c) of the Act, as enacted by subsection 13(1), applies in respect of a person who, on the day on which this section comes into force, is in detention under Division 6 of Part 1 of the Act.

COORDINATING AMENDMENTS

2011, c. 8

36. (1) In this section, “other Act” means An Act to amend the Immigration and Refugee Protection Act, chapter 8 of the Statutes of Canada, 2011.

(2) If section 23 of this Act comes into force before section 3 of the other Act, then that section 3 is repealed.

(3) If section 3 of the other Act comes into force before section 23 of this Act, then that section 23 is replaced by the following:

23. Subsection 133.1(1) of the Act is replaced by the following:

Limitation period for summary conviction offences

(4) If section 23 of this Act comes into force on the same day as section 3 of the other Act, then that section 3 is deemed never to have come into force and is repealed.

COMING INTO FORCE

Order in council

37. Sections 18 to 23 and 25 to 32 come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

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