The Mechanics of Enforcement

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 532-591

532

CH AP TER 15

THE MECHANICS OF

ENFORCEMENT

A. INT RODUCTION

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

B. R EMOVAL FROM CANADA

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).

IMM IGR ATION L AW534

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-

lations].

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.

17 2004 FC 1542.