Regulations Amending the Citizenship Regulations: SOR/2018-264
Canada Gazette, Part II, Volume 152, Number 25
SOR/2018-264 November 30, 2018
P.C. 2018-1485 November 29, 2018
Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to section 27 footnote a of the Citizenship Act footnote b, makes the annexed Regulations Amending the Citizenship Regulations.
Regulations Amending the Citizenship Regulations
1 The definition foreign service officer in section 2 of the Citizenship Regulations footnote 1 is replaced by the following:
foreign service officer means a Canadian diplomatic or consular officer who is accredited to carry out or is carrying out official duties in the country in which a person making an application or giving a notice pursuant to the Act resides or, if there is no such officer in that country, such an officer who is accredited to carry out or is carrying out official duties in another country; (agent du service extérieur)
2 Paragraph 7.2(c) of the Regulations is repealed.
3 (1) Subsection 12(1) of the Regulations is repealed.
(2) The portion of subsection 12(2) of the Regulations before paragraph (a) is replaced by the following:
(2) When an applicant appears before a citizenship judge, the judge may permit the applicant to be accompanied by
4 The Regulations are amended by adding the following after section 26.7:
Seizure of Documents
27 If the Minister seizes a document under section 23.2 of the Act, the Minister must provide to the person who provided the document written notice of the seizure that includes the grounds for the seizure and that states that the person may provide additional information with respect to the document.
28 The Minister may, for the purpose of the administration and enforcement of the Immigration and Refugee Protection Act, disclose to the Canada Border Services Agency, information with respect to the seized document and may provide the seized document to the Agency. The Agency may keep the seized document for the period necessary to determine whether it appears to be genuine or to have been unlawfully altered.
29 If the Minister determines that the seized document was not fraudulently or improperly obtained or used, or that its seizure is not necessary to prevent its fraudulent or improper use, the Minister must return the document to the person who provided it.
30 If the Minister determines that the seized document was obtained or used fraudulently or improperly or that the seizure is necessary to prevent its fraudulent or improper use, the document must be detained for as long as is necessary for the administration of the laws of Canada, after which it will be returned to the authority that issued it or disposed of in accordance with the laws of Canada.
Coming into Force
5 (1) These Regulations, except section 4, come into force on the day on which they are registered.
(2) Section 4 comes into force on the day on which section 11 of An Act to amend the Citizenship Act and to make consequential amendments to another Act, chapter 14 of the Statutes of Canada, 2017, comes into force, but if these Regulations are registered after that day, section 4 comes into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Document seizure provisions
On June 19, 2017, Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act (AACA), received royal assent. Among other changes, the AACA provided a new authority for the Minister of Immigration, Refugees and Citizenship to seize and detain documents provided for the purposes of the Citizenship Act if the Minister has reasonable grounds to believe that they were fraudulently or improperly obtained or used, or that the measure is necessary to prevent their fraudulent or improper use. Amendments to the Citizenship Regulations (the Regulations) are required to support the coming into force of this new legislative authority by providing clarity and consistency in establishing the processes to be followed in relation to the seizure and detention of documents believed to be fraudulent.
The AACA also repealed provisions in the Citizenship Act that allowed the Minister to revoke an individual’s citizenship if the individual had been convicted of an offence abroad that, if committed in Canada, would constitute a terrorism offence in Canada. Amendments to the Regulations are required to remove this now obsolete ground for revocation from a list of factors on which basis a revocation hearing may be held.
Amendments identified by the Standing Joint Committee for the Scrutiny of Regulations and technical amendments
The regulatory amendments also include technical revisions and amendments that address recommendations by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) in its 2012 review of the Regulations and other technical revisions.
The new authorities created by the AACA regarding the seizure and detention of documents respond to the findings of the 2016 Auditor General’s report, Detecting and Preventing Fraud in the Citizenship Program, which found inconsistent practices for dealing with documents believed to be fraudulent in the Citizenship Program, and therefore recommended that Immigration, Refugees and Citizenship Canada (IRCC) clarify seizure authorities; provide officers with more detailed guidance and training; and ensure that officers implement this guidance. These authorities are expected to come into force at the same time as the amendments to the Regulations described herein.
Document seizure provisions
The first objective of the regulatory amendments is to support implementation of the new legislative authority to seize documents by establishing
- the procedures that must be followed once a decision is made to seize a document believed to be fraudulent under the new authority of the Citizenship Act (i.e. written notice, return, disposal); and
- the authority to share, where necessary, the seized document; to disclose to the Canada Border Services Agency (CBSA) information with respect to the seized document; and to allow the CBSA to keep the seized document for the period necessary to determine whether it appears to be genuine or to have been unlawfully altered.
The second objective of the regulatory amendments is to align the Citizenship Regulations with the changes to the Citizenship Act by repealing the obsolete provision stating that a conviction for a terrorism offence committed outside Canada is a factor in determining whether a revocation hearing should be held.
Amendments identified by the SJCSR and technical amendments
The third objective of the regulatory amendments is to correct technical errors and inconsistencies identified by the SJCSR and make technical revisions.
Document seizure provisions
The regulatory amendments establish the requirement for the Minister to notify the person who provided the document of the seizure. The amendments also provide that a document seized will be returned to the person from whom it was seized if it is determined that the document was not fraudulently or improperly obtained or used, or that the seizure is not necessary to prevent its fraudulent or improper use.
The amendments also provide that documents determined to have been fraudulently or improperly obtained or used will not be returned to persons from whom they were seized. Fraudulent documents will remain detained for as long as is necessary for the administration of the laws of Canada, after which they will be returned to the authority that issued them or disposed of in accordance with the laws of Canada.
Finally, the regulatory amendments provide that the Minister may, for the purpose of the administration and enforcement of the Immigration and Refugee Protection Act, disclose to the CBSA information with respect to any seized document; provide any document to the CBSA; and allow the CBSA to keep any seized document for the period necessary to determine whether it appears to be genuine or to have been unlawfully altered. As for the process for sharing seized documents and information with the CBSA, it will be outlined in program delivery instructions.
Applicants whose documents are seized will be provided with written notice of the seizure and given an opportunity to respond in writing and, if applicable, to provide additional information with respect to the documents in question.
To align with changes to the Citizenship Act, which repealed the national interest grounds for revocation, the regulatory amendments repeal paragraph 7.2(c) of the Citizenship Regulations, which provides that one of the factors for consideration by the Minister in deciding whether to hold a hearing in respect of citizenship revocation is whether the ground for revocation is related to a conviction and sentence imposed outside Canada for an offence that, if committed in Canada, would constitute a terrorism offence as defined in section 2 of the Criminal Code. The Minister will continue to take into account the factors set out under paragraphs 7.2(a) and (b), namely, the existence of evidence that raises a serious issue of the person’s credibility, and the person’s inability to provide written submissions, in determining whether a hearing is required in connection with a revocation decision.
Amendments identified by the SJCSR and technical amendments
The amendments address technical errors and inconsistencies identified by the SJCSR as follows:
- Subsection 12(1) of the Citizenship Regulations, which establishes that a judge may require a citizenship applicant to give evidence under oath, is repealed. This provision does not prescribe a procedure to be followed by citizenship judges in the performance of their duties, and, is therefore, unnecessary. Likewise, this provision is redundant because it reflects an authority to require someone to give evidence under oath that is already established in section 13 of the Canada Evidence Act.
- The definitions of “foreign service officer” and “agent du service extérieur” in section 2 of the Citizenship Regulations would be amended by changing the terms “nearby country” to “another country” and “pays voisin” to “autre pays” for clarity. This change allows applicants to obtain services from another office, rather than requiring applicants to seek consular services at the closest possible office. In addition, the references to “or a registration” and to “fait faire une immatriculation” have been removed from the definition, as they refer to the repealed section 8 of the Citizenship Act and are therefore obsolete.
The “One-for-One” Rule does not apply to these regulatory amendments, as there are no changes in administrative costs to businesses.
Small business lens
The small business lens does not apply to these regulatory amendments, as they impose no costs on small businesses.
During the legislative process, parliamentarians raised a number of issues pertaining to the AACA amendments. No issues were raised in relation to the new document seizure authorities. Some opposition members of Parliament commented that the Government should have the ability to revoke the citizenship of a person convicted of terrorism.
During the 30-day public comment period when the draft regulatory text was prepublished in the Canada Gazette, Part I, interest was expressed in establishing fixed timelines for how long seized documents would be detained. IRCC gave due consideration to these suggestions but, for several reasons, concluded that establishing fixed detention timelines would not be feasible. First, document analysis will need to be done on a case-by-case basis. Some documents may require more extensive analysis than others. For example, some documents will need to be referred for analysis to the CBSA. Second, some documents will remain detained for as long as is necessary to prevent their fraudulent use. Such a determination would need to be made on a case-by-case basis, and could not reasonably be subject to a standard timeframe. Finally, seized documents that are confirmed to be fraudulent will not be returned to applicants; the documents will either be disposed of or returned to the issuing authority.
IRCC has taken steps to ensure that the process is fair and transparent for persons whose documents are seized. In any case where the Minister has determined that a document was not fraudulently or improperly obtained or used, or in any case where the Minister has determined that seizure is not necessary to prevent the fraudulent or improper use of a document, the document will be returned to the applicant after such a determination is made. Applicants whose documents are seized will receive written notice upon the seizure and will also be provided the opportunity to respond in writing and, if applicable, provide additional information with respect to the document(s) in question.
No changes were made to the prepublished Regulations.
The document seizure provisions of the AACA, in combination with these regulatory amendments, enhance citizenship program integrity and respond to the recommendations in the 2016 Auditor General’s report on Detecting and Preventing Fraud in the Citizenship Program. In particular, the provisions will help ensure that applicants do not acquire citizenship on the basis of fraudulent documents.
IRCC has been working closely with the Office of the Privacy Commissioner (OPC) to develop a Privacy Impact Assessment, which outlines the privacy impacts associated with the new seizure authorities and which will be submitted to the OPC in fall 2018. Furthermore, IRCC and the CBSA will work together to update the Memorandum of Understanding between the CBSA and IRCC to reflect document seizure authorities within the Citizenship Program. Officers receive the necessary training when dealing with documents believed to be fraudulent.
The repeal of the now-obsolete paragraph of the Citizenship Regulations related to a foreign terrorism conviction aligns with changes made to the revocation provisions in the Citizenship Act and prevents confusion.
The repeal concerning the authority of citizenship judges to require evidence under oath avoids duplication, as judges already have the ability to require an applicant to give evidence under oath, pursuant to section 13 of the Canada Evidence Act. The amendment regarding the definition of “foreign service officer” enables clients to obtain services from another country rather than a nearby country; this provides flexibility, enhances client service and addresses inconsistencies within the Citizenship Program.
The costs associated with the regulatory amendments are expected to be low and are primarily related to implementation activities, including updating manuals and web pages, and providing staff with the necessary training.
IRCC is committed to ensuring that its programs and policies, including its Citizenship Program, are based on an understanding of the diversity that exists in Canadian society and that particular demographic groups are not adversely affected by these programs and policies.
A preliminary scan indicated that no specific segment of the population would be adversely affected by the introduction of document seizure authorities or procedures. Similarly, no adverse impact is anticipated relating to the amendments pertaining to revocation, the amendments identified by the SJCSR or the technical amendments. IRCC will continue monitoring these regulatory provisions for emerging gender and intersectional impacts.
Implementation, enforcement and service standards
Implementation requires updates to program delivery instructions, manuals, and web pages, and updated training for staff.
Legislation and Program Policy
Immigration, Refugees and Citizenship Canada
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