The Mechanics of Enforcement

AuthorJamie Chai Yun Liew; Donald Galloway
While recognizing that enforcement techniques are implemented out-
side our territorial borders to prevent the arrival of unwanted vi sitors
and migrants,1 the focus of this chapter is on the enforcement meas-
ures that are implemented within Canada. The chapter outline s the
processes of decision mak ing that may precede a person’s removal from
Canada. When a person presents himself to a n off‌icer of the Canada
Border Services Agency (CBSA)2 at a port of entry, a decision must be
made regarding whether the indiv idual should be allowed to come into
Canada, whether conditions should be attached to the entry, whether
the individual should be detained while a decision is pending, wheth-
er the person should be removed from Canada, and if removable, what
the terms of possible re-entr y should be. These decisions will be based
on assessments of the person’s status and of any evidence of inadmis-
1 See Francois Crép eau & Delphine Nakache, “Controlli ng Irregular Migr ation in
Canada: Re conciling Security Conce rns with Human Rig hts Concerns” (2006)
12: 1 IRPP Cho ices, online: Socia l Science Research Network ht tp://s srn .com /
abstract=1516626. For example, mig ration integrity off‌icers h ave been stationed
overseas to preve nt undocumented or suspicious ind ividuals boarding pl anes
to Canada; s anctions have been placed on tr ansportation compan ies that have
permitted i mproperly documented passenge rs to load; and security chec ks of
visa applic ants are undertaken.
2 For more information ab out the Canada Border Serv ices Agency, see Chapter 2.
The Mechanics of E nforcement 533
sibility. Similarly, a person already in Canada m ay come to the notice
of a CBSA off‌icer, who may initiate inquiries into their status and into
possible grounds for holding them to be inadmissible, and then may
initiate removal proceedings.3
1) Enforcing the Immigration and Refugee Protection Act
and Its Regulations
The minister of Public Safety and Emergency Preparedness, along with
the Canada Border Ser vices Agency (CBSA), is primarily in charge of
enforcing Canada’s immigration regime. (For more information, see
Chapter 2.)
2) The Removal Order
The primary tool of enforcement withi n the immigrat ion regime is the
removal order. A permanent resident loses her status when a removal
order against her comes into force; she reverts to being a foreign nation-
al.4 As well, temporary residents may be subject to a removal order at
the end of the period for which they are authorized to stay in Canada,
when their temporary resident permit is cancelled, or for other rea-
sons.5 In general, where a removal order is enforceable, the order must
be enforced as soon as possible; the foreign nat ional must leave Canada
immediately.6 Where a removal order has been enforced, the indiv idual
may not return to Canada unless authorized by a n off‌icer “or in other
prescribed circumstances.”7
3 Such persons could inc lude, for example, refugee claima nts who were denied
refugee protection, who h ave exhausted all avenues of app eal and alternative
remedies, and who h ave stayed in Canada beyond t he authorized period, or
visitors who h ad valid status but who have stayed b eyond the authorized perio d
on their vis a.
4 Immigration and Refugee Protec tion Act, SC 2001, c 27, s 46(1)(c) [IR PA].
5 Ibid, s 47. Section 47(b) gives the power to an of f‌icer or the Immigration Div i-
sion to determine t hat temporary resident st atus is lost if a foreign nation al fails
to comply with any I RPA requirements.
6 Ibid, s 48(2). Section 48(1) specif‌ies that a r emoval order is enforceable if it has
come into force and is not staye d. See Section E, below in thi s chapter, on the
discus sion of stays.
7 Ibid, s 52(1).
The Regulations identif y three types of removal order: (1) a depar-
ture order,8 (2) an exclusion order,9 and (3) a deportation order.10 They
also prescribe different circumstances permitti ng a person’s return to
Canada for each ty pe of order that has been made.11
Where a deportation order has been issued a nd enforced, the subject
may not return to Canada without written authoriz ation.12 Where an
excl usi on ord er h as been issued, t he subject requires written authoriza-
tion to return to Canada within a year of the enforcement of the or-
der.13 Where a departure order has been issued, the subject may return
without written authoriz ation, if the other requirements of the I R PA
and its Regulations are met.14 A foreign national who has been is sued
a departure order must meet specif‌ied conditions w ithin thirty days,
failing which, the order becomes a deport ation order.15 Conditions in-
clude appearing before an off‌icer at a port of entry to ver ify departure
from Canada, obtain ing a certif‌icate of departure from Citizenship
and Immigration Canada (CIC), and departing from Can ada.16 Justice
Harrington, in Sahakyan v Canada (Minister of Citizenship and Immigra-
tio n), has described effectively the impact of this rule.17 His reasons
begin as follows:
When you are told to get out of Canada, you better get going! Sergey
Sahakya n was a little slow in leav ing Canad a after his refugee c laim
was turned dow n. Because he should have left t hree months ea rlier,
he may never get back in, even though he now holds t he right papers.
He has been selecte d for permanent residence b y Québec, pursu-
ant to a Federal–Prov incial agre ement. Had he left Canad a when he
8 Immigration and Refugee Protection Regulations, 2002 SOR/2002-227, s 224 [Regu-
9 Ibid, s 225.
10 Ibid, s 226.
11 Ibid, s 223.
12 Ibid, s 226.
13 Ibid, s 225(1). See also ibid, s 225(2): However, where the order has been iss ued
because of mi srepresentation, the releva nt period of time is two yea rs. Under
changes int roduced by the Faster Removal of Foreign Criminal s Act, SC 2013, c
16, s 16(1), not yet in force, the period is incre ased to f‌ive years.
14 Regul ations, above note 8, s 2 24. See s 229(2), which provides that a refugee
claimant i s issued a departure order onc e the claim has been deter mined eli-
gible to be referre d to the Refugee Protection Divi sion.
15 Ibid, s 224(2).
16 Ibid, ss 240(1)(a)–(c). See also s 224 (c): If the individual is det ained during a
thirt y-day period, the time li mit is suspended until t he day of release.

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