Second reading of Bill S-8, An Act to amend the Immigration and Refugee Protection Act

By: The Hon. Peter Harder

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Centennial flame, Ottawa

Hon. Peter Harder moved second reading of Bill 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.

He said: Honourable senators, for almost three months, Canadians have watched in shock and horror Russia’s unjustifiable invasion of Ukraine. As we are all aware, on February 24, 2022, without provocation, Russian forces initiated a comprehensive invasion of Ukraine. This egregious step was a blatant violation of international law, the Charter of the United Nations and the rules-based international order.

Those attacks have caused widespread devastation of Ukrainian infrastructure and property and unnecessary deaths of Ukrainians, particularly civilians. Those actions are a continuation and an acceleration of the violent steps taken by Russia since early 2014 to undermine Ukrainian security, sovereignty and independence.

In the face of such brazen disregard for the international order, the Government of Canada, together with our allies, has responded to the Russian invasion of Ukraine through the use of economic measures, including sanctions, to send a clear message that the aggression displayed by the Russian regime will not be tolerated. Since the invasion of Ukraine commenced in February, the Government of Canada has imposed sanctions under the Special Economic Measures Act, so-called SEMA, on over 1,000 individuals in Russia, Ukraine and Belarus. More targeted sanctions are planned in response to Russian aggression and to contribute to the growing international consensus to censure President Putin and those who support him for this violent, unprovoked attack on Ukraine.

The basis for issuing those sanctions pursuant to the SEMA is that a grave breach of international peace and security has occurred, which has resulted in the serious situation we see today.

The legislative amendments I am introducing today are amendments to the Immigration and Refugee Protection Act, IRPA. They will provide Canada with much needed abilities to better link government sanctions with authorities related to immigration enforcement and access to Canada.

The IRPA defines when a person is inadmissible to Canada and establishes the applicable criteria for all foreign nationals and permanent residents who seek to enter or remain in Canada. However, as the IRPA is currently written, its inadmissibility provisions do not align with the basis for imposing the majority of SEMA sanctions issued against Russia. This means that most individuals sanctioned pursuant to SEMA may nevertheless have unfettered access to travel to, enter or remain in Canada if they are not otherwise inadmissible. This runs counter to Canada’s policy objectives with respect to the measured, yet firm, application of sanctions and restrictions on foreign nationals who are part of the Russian regime or are key supporters of the regime. Legislative measures are required on an urgent basis to align the IRPA sanctions inadmissibility regime with that of SEMA.

Your Honour, that is why I am here today: to propose Bill S-8, An Act to amend the Immigration and Refugee Protection Act — IRPA — that will, among other things, align IRPA with SEMA to ensure all foreign nationals subject to sanctions under SEMA will also be inadmissible to Canada. If passed, the current inadmissibility grounds relating to sanctions will be expanded to ensure that foreign nationals subject to sanctions for any reason under the SEMA will be inadmissible to Canada. This includes foreign nationals sanctioned not only in Russia, Belarus and Ukraine, but also sanctioned individuals from Iran, Myanmar, South Sudan, Syria, Venezuela, Zimbabwe and North Korea. In addition, these amendments will also modernize the current sanctions inadmissibility framework set out in the IRPA.

Allow me to explain the importance of this legislation and why I am seeking to pass it as quickly as possible into law. The amendments of this bill will allow for all sanctions-related inadmissibility grounds to be treated in a cohesive and coherent manner. It will strengthen inadmissibility legislation that we already have in place, rendering designated persons subject to sanctions inadmissible to Canada. It will ensure that sanctions imposed by the Government of Canada will have direct consequences in terms of immigration to and access to Canada, and it will allow Immigration, Refugees and Citizenship Canada — IRCC — and its officials to deny temporary or permanent resident visas overseas and authorize the Canada Border Services Agency — CBSA — and its officials to deny entry to and remove from Canada sanctioned individuals.

Once in force, these amendments will apply to all foreign nationals who are subject to sanctions issued unilaterally by Canada and to their immediate family members. These changes would ensure that all Russian officials sanctioned under SEMA and their sanctioned supporters are inadmissible to Canada.

As honourable members of the Senate will remember, this approach also aligns with and builds upon recent legislative activity that was strongly supported in this chamber.

In the 2017 report by the House of Commons Standing Committee on Foreign Affairs and International Development, entitled A Coherent and Effective Approach to Canada’s Sanctions Regimes: Sergei Magnitsky and Beyond, the committee recommended that the IRPA ought to be amended to designate all individuals sanctioned under SEMA as inadmissible to Canada.

Subsequently, also in 2017, the Justice for Victims of Corrupt Foreign Officials Act, known as the Sergei Magnitsky Law, or Bill S-226 under the sponsorship of our former colleague Senator Andreychuk, came into force.

This act created two new inadmissibility grounds which aligned with certain sanctions provisions related to international human rights violations and significant corruption.

Subsequent amendments to the Immigration and Refugee Protection Regulations were also made so that delegated CBSA officers, as opposed to the Immigration Division of the Immigration and Refugee Board, were empowered to issue deportation orders directly at the ports of entry for individuals inadmissible, pursuant to the newly created sanctions inadmissibility provisions. This ensured that these individuals would not have to be physically referred into Canada for admissibility hearings before the Immigration Division with the attendant costs and pressing delays.

Finally, Budget 2018 provided CBSA with the necessary funding to, among other things, ensure that the agency works with Global Affairs Canada and Immigration, Refugees and Citizenship Canada to ensure that inadmissible sanction cases are identified as early as possible in the travel continuum to prevent them from gaining access to our country entirely.

These investments and the effective work of border management and immigration officials in Canada and abroad support the proposed legislative amendments that I am seeking your support for today.

Further to the work already done, there are additional complementary and coordinating amendments introduced in the bill, which are required to align inadmissibility provisions with sanctions provisions while maintaining the integrity of both frameworks.

First, as previously mentioned, all the sanctions inadmissibility provisions will be treated in a cohesive and coherent manner. This includes, for instance, adding a temporal element to all of the sanctions inadmissibility provisions, which means that a person is only inadmissible for as long as they remain on the sanctions list.

In addition, as is the case today with IRPA, immediate family members of foreign nationals inadmissible for sanctions are also inadmissible. Similarly, existing provisions of IRPA with respect to immigration detention and sanctioned individuals would apply to the new sanctions grounds.

Second, further legislative amendments in this bill will ensure that the inadmissibility framework related to multilateral sanctions, such as the sanctions issued in concert with the United Nations, will be expanded to include groups or non-state entities as opposed to only when states are sanctioned, as is the case today.

Currently, sanctions issued against groups and non-state entities, such as al Qaeda or ISIL, do not automatically trigger a sanctions-related inadmissibility ground. The proposed amendments will further facilitate interdiction and enforcement efforts for sanctions issued multilaterally. Make no mistake: these proposed amendments will improve Canada’s ability to identify and stop sanctioned foreign nationals before they travel to Canada.

In the event that some do, nevertheless, arrive at our borders, delegated CBSA officers will have the authority to issue removal orders immediately at the ports of entry for all those inadmissible on the grounds of sanctions.

It is important to note that sanctions inadmissibility is the most efficient and effective mechanism to swiftly identify inadmissible persons as early as possible, as I said earlier, in the travel continuum and to deny their ability to acquire a visa to Canada in the first place.

While other inadmissibility provisions may be applicable to some sanctioned individuals, it should not be assumed that all sanctioned individuals are also inadmissible for other grounds. Moreover, other potentially relevant inadmissibility grounds, such as those related to engaging in war crimes, require extensive investigation, case-by-case analysis and hearings before the Immigration and Refugee Board before they can be applied and yield consequences.

It is not expected to be the case that all individuals who are sanctioned can, in fact, also be found inadmissible for some other grounds under the IRPA. Unless there is a clear and specific ground for inadmissibility in the IRPA against a given individual, immigration and border officers do not have discretion to deny access to Canada. These amendments are, therefore, vital to ensuring consistent alignment between inadmissibility and sanctions.

Other refinements are included in the proposed amendments as well. For instance, we will correct an inconsistency with respect to refugee policy that was created through Bill S-226. The Sergei Magnitsky Law rendered foreign nationals ineligible to make a refugee claim inadmissible. However, multilateral sanctions, such as those issued under the United Nations Act, do not have this same consequence in the IRPA.

Similarly, the UNHCR’s Refugee Convention itself does not identify sanctions in and of themselves as sufficient to warrant exclusion from refugee protection. The proposed amendments in this bill would correct this asymmetry and render all sanctioned individuals eligible to make a claim for refugee protection in line with Canada’s international obligations. However, all foreign nationals inadmissible due to sanctions who are granted refugee or protected person status would not be eligible to become permanent residents while those sanctions are in place.

The people we’re sanctioning and their disregard for international conventions and basic human rights principles will not serve them well.

We have to hold ourselves to a higher standard, but the bottom line is that Bill S-8 will make it easier to keep human rights violators out of Canada. This is a balanced yet firm approach.

In addition, should a person inadmissible due to sanctions be subject to removal proceedings, they would be eligible to apply for a pre-removal risk assessment, ensuring a fair assessment of risks facing the person upon removal from Canada.

In recognition of sanctions being a deliberate statement of government policy, further amendments are proposed to narrow the available pathways to overcome inadmissibility for sanctions within the IRPA.

I believe that lifting of the sanctions in and of itself is a mechanism by which the consequences of a sanction should be avoided. As such, this bill proposes to remove access to Ministerial relief for individuals who are inadmissible for sanctions. Furthermore, individuals inadmissible for sanctions would not have access to an appeal of that inadmissibility decision before the Immigration Appeal Division, nor may they make an application for permanent residence on humanitarian and compassionate grounds under our proposed amendments.

Any request for recourse related to sanctions ought to be made through the sanctions-issuing body. For instance, individuals inadmissible due to the sanctions imposed by Canada could submit an application for delisting to the Minister of Foreign Affairs, as the sanction regime proceeding allows. In addition, as with all decisions under the IRPA, the Federal Court will continue to have jurisdiction to conduct judicial review of inadmissibility determinations on the basis of sanctions.

This bill also includes coordinating amendments to the Emergencies Act and the Citizenship Act to maintain and clarify existing authorities related to sanctions inadmissibility in those acts.

Honourable senators, now, more than ever, we must move to align the IRPA sanctions regime with the regime under the SEMA.

Moving forward with the amendments included in this bill is a firm and necessary measure that Canada must take to further sanction foreign nationals who are either part of the Russian regime, are key supporters of the regime or like-minded human rights abusers.

This bill will provide Canada with much-needed authorities to better link government sanctions as well as the authorities necessary for our immigration officials to deny access to Canada. It is also an act that will better enable us to contribute to concerted action with our international partners.

Colleagues, there are no alternatives to legislative amendments that could seamlessly align the Russia sanctions with inadmissibility.

The bill before the Senate today is a prudent and comprehensive approach that would allow our government to respond to the Russian regime’s aggression with appropriate immigration consequences. It will provide a clear message that the Government of Canada’s comprehensive sanctions framework has meaningful consequences, not only from an economic perspective but from an immigration and access-to-Canada perspective as well.

I urge this chamber to advance this bill as quickly as possible for committee review. Thank you.

 

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