Research publications

Contents

• 1 Background
  • 1.1 Sanctions Regimes In Canada
    • 1.1.1 Sanctions in Response to Russia’s Invasion of Ukraine
    • 1.1.2 Recourses to Remove Sanctions
  • 1.2 Inadmissibility to Canada
    • 1.2.1 Removal Orders for Inadmissible Individuals
• 2 Description and Analysis
  • 2.1 Amendments to the Immigration and Refugee Protection Act
    • 2.1.1 New Distinct Ground of Inadmissibility Based on Sanctions (Clauses 5 and 6)
    • 2.1.2 Application of the New Sanctions Inadmissibility Provisions Under the Immigration and Refugee Protection Act (Clauses 1 to 4 and 7 to 11)
    • 2.1.3 Other Amendments to the Immigration and Refugee Protection Act (Clauses 8 and 12)
    • 2.1.4 Sanctions Imposed Before the Coming into Force of Bill S-8 (Clause 13)
  • 2.2 Amendments to the Immigration and Refugee Protection Regulations
    • 2.2.1 Declarations of Relief (Clauses 16 and 17)
    • 2.2.2 Exception from Permit Holder Class (Clause 18)
    • 2.2.3 Removal Orders (Clauses 19 and 20)
    • 2.2.4 Stays of Removal (Clause 21)
    • 2.2.5 Transitional Provision (Clause 22)
  • 2.3 Amendments to the Citizenship Act (Clause 14)
  • 2.4 Amendments to the Emergencies Act (Clause 15)
  • 2.5 Coordinating Amendments (Clause 15.1)
  • 2.6 Review of the Act (Clause 23)
• Notes

1 Background

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,1 was introduced in the Senate on 17 May 2022 by the Honourable Marc Gold, Government Representative in the Senate. After second reading, the Standing Senate Committee on Foreign Affairs and International Trade studied the bill on 3 and 9 June 2022 and reported it back to the Senate on 14 June 2022 with one amendment. The bill, as amended, passed the Senate on 16 June 2022. Further amendments were introduced by the House of Commons Standing Committee on Foreign Affairs and International Development, which studied the bill between 9 and 16 May 2023. The bill, as amended, was adopted at third reading on 21 June 2023 and the Senate agreed to the House of Commons amendments the same day. Bill S-8 received Royal Assent and came into force on 22 June 2023.

The bill amends the Immigration, Refugee and Protection Act2 (IRPA) and the Immigration and Refugee Protection Regulations3 (IRPR) to broaden the scope of inadmissibility, which refers to the denial of permission to enter or stay in Canada based on sanctions. It also makes consequential amendments to the Citizenship Act and the Emergencies Act to ensure coherence throughout the various pieces of legislation.4

Bill S-8 arises within the context of the Government of Canada’s response to Russia’s further invasion of Ukraine in February 2022, for which the federal government has imposed economic sanctions against entities and individuals waging, and enabling, Russia’s aggression. When the bill was tabled, the Minister of Public Safety, the Honourable Marco Mendicino, stated that

[b]anning close associates and key supporters of Putin’s regime, including those responsible for this unprovoked aggression from entering our country is one of the many ways in which we’re holding Russia accountable for its crimes.5

1.1 Sanctions Regimes In Canada

Sanctions are a foreign policy tool that “allow governments to respond to international behaviour that is determined to be adverse to their national interests, including violations of international law and norms.”6 Overall,

[t]he term “sanctions,” or economic sanctions, is used to describe a range of measures that can be implemented by governments to restrict or prohibit certain types of interactions with a foreign state, individual or entity. Possible measures range from sanctions targeted against specific individuals to broad economic embargoes. Sanctions are intended to be temporary, implemented to achieve a specific foreign policy objective, yet they often remain in place for many years.7

The Minister of Foreign Affairs is responsible for applying sanctions under the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (JVCFOA).8 The Minister of Foreign Affairs is also responsible for implementing sanctions in Canada imposed by the United Nations (UN) Security Council through the United Nations Act (UNA).9 Acting on advice from the Minister of Foreign Affairs, Canada imposes sanctions by means of orders or regulations made by the Governor in Council pursuant to enabling legislation.10 The process of determining whether to apply sanctions and the creation and publishing of the regulations enforcing sanctions are similar for the three Acts. However, the underlying reasons to invoke sanctions and the selected individuals or entities differ between the three regimes.

In general, sanctions may be imposed under SEMA against an individual or an entity for any of the following reasons:

• An international organization or association of which Canada is a member has called for economic measures to be taken against a foreign state.
• A grave breach of international peace and security has occurred that has resulted in or is likely to result in a serious international crisis.
• Gross and systematic human rights violations have been committed.
• Acts of significant corruption have been committed by public officials or their associates.11

As to the JVCFOA, sanctions may be imposed on a foreign national responsible for, or complicit in any of the following:

• extrajudicial killings, torture, or gross violations of human rights against individuals in any foreign state who seek to defend or promote internationally recognized human rights or who seek to expose illegal activities carried out by a foreign public official;
• ordering, controlling, or otherwise directing acts of significant corruption; or
• materially assisting, sponsoring, or providing financial, material or technological support for, or goods or services in support of, an act of significant corruption by a foreign public official or their associate.12

Finally, the sanctions imposed under the UNA are in fulfilment of Canada’s obligations to implement the decisions of the UN Security Council.

All three pieces of legislation make it “a criminal offence for contravening or failing to comply with sanctions regulations, which in all three cases is a hybrid offence, allowing violators to be charged with either a summary conviction or an indictable offence.”13

Individuals subject to sanctions under these Acts may be rendered inadmissible to Canada and denied entry, as set out in IRPA (further explained below in section 1.2 of this legislative summary). Bill S-8 aims to close a gap in Canada’s sanctions regime by increasing the number of scenarios in which sanctions lead to inadmissibility to enter or to stay in Canada.

1.1.1 Sanctions in Response to Russia’s Invasion of Ukraine

Canada responded to Russia’s violation of Ukraine’s sovereignty and territorial integrity by imposing sanctions under SEMA. The Special Economic Measures (Ukraine) Regulations and Special Economic Measures (Russia) Regulations first came into force on 17 March 2014 during the invasion and occupation of Crimea by Russia. Subsequently, the Special Economic Measures (Belarus) Regulations and Special Economic Measures (Moldova) Regulations came into force on 28 September 2020 and 30 May 2023, respectively. The regulations have been frequently updated, most recently in February 2024.14

The SEMA regulations pertaining to Ukraine, Russia, Belarus and Moldova, in particular, prohibit persons in Canada and Canadians abroad from the following actions:

• dealing in any property, wherever situated, held by or on behalf of a designated person;
• entering into or facilitating, directly or indirectly, any transaction related to such a dealing;
• providing any financial or related service in respect of such a dealing;
• making goods, wherever situated, available to a designated person; and
• providing any financial or related service to or for the benefit of a designated person.15

Under these regulations, Canada has issued sanctions against more than 1,000 individuals and hundreds of entities linked to Russia’s ongoing violations of Ukraine’s sovereignty and territorial integrity.16

1.1.2 Recourses to Remove Sanctions

The JVCFOA and regulations under SEMA contain provisions that allow

persons targeted by sanctions to challenge their inclusion in the relevant schedule, or list. Listed persons may apply to the Minister of Foreign Affairs for removal. Once an application has been received, the Minister must then determine if reasonable grounds exist to recommend delisting. The UNA does not include a similar provision, as the lists of individuals and entities are established by the UN, which has its own delisting process.17

Individuals or entities who wish to have a UN Security Council listing reversed must apply directly to either the UN Security Council Focal Point for Delisting or, in the case of sanctions related to the Islamic State in Iraq and the Levant (ISIL), to the Ombudsperson to the ISIL (Da’esh) and al Qaida Sanctions Committee.18

Individuals or entities claiming not to be the person or entity in a SEMA or JVCFOA schedule or sanctions list may also apply to the Minister of Foreign Affairs for a certificate of mistaken identity. Whether an application is being made for delisting or for a certificate of mistaken identity, the relevant regulation and section number under which the application is being made must be identified, applicants must also provide, among other things, “a detailed description of the relevant circumstances and reasons supporting the application”19 and any further information requested by the Minister of Foreign Affairs in support of the application.

Entities wishing to contest a listing face a more onerous process than do individuals. In addition to the requirements imposed on both individuals and entities, an entity must provide the following:

• a list of its owners and shareholders;
• a description of the products it produces and the ingredients, components, and raw materials acquired in order to make the products;
• a detailed description of the services it provides;
• a list of its customers; and
• a list of companies from which it procures ingredients, components, or raw materials.20

1.2 Inadmissibility to Canada

Part 1, Division 4 of IRPA prohibits foreign nationals or permanent residents from entering or remaining in Canada if they are found inadmissible on one of the grounds set out in sections 34 to 42. Prior to Bill S-8’s amendments, those grounds were as follows:

• security (section 34(1));
• violation of human or international rights (section 35(1));
• serious criminality (section 36(1));
• criminality (section 36(2));
• organized criminality (section 37(1));
• health grounds (section 38(1));
• financial reasons (section 39);
• misrepresentation (section 40(1));
• cessation of refugee protection (section 40.1);
• non-compliance with the Act (section 41); and
• inadmissible family member (section 42(1)).

Section 33 of IRPA clarifies that

[t]he facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.21

Prior to the coming into force of Bill S-8, sanctions were a ground for inadmissibility under sections 35(1)(c), 35(1)(d) and 35(1)(e) of IRPA. For example, sanctions imposed on senior officials of a regime that committed gross human rights violations under SEMA or the JVCFOA would have rendered those individuals inadmissible to Canada under sections 35(1)(d) or 35(1)(e). While not all the grounds for sanctions under SEMA triggered inadmissibility under section 35(1)(d) of IRPA, individuals sanctioned for other reasons may be considered inadmissible under other provisions of IRPA when their immigration application is processed.22

However, SEMA sanctions for a grave breach of international peace and security that has occurred and resulted in or is likely to result in a serious international crisis, like Russia’s war on Ukraine, were not covered under section 35(1). To remedy this, Bill S-8 established new, broader grounds for inadmissibility based on sanctions imposed on a country, an entity or a person.  

1.2.1 Removal Orders for Inadmissible Individuals

Currently, individuals who are in Canada and are found inadmissible cannot stay in the country unless they obtain a temporary resident permit.23 Officials from the Canada Border Services Agency (CBSA) will write a report that explains why it believes that the person should not be allowed to enter or remain in Canada.24 CBSA officials will then refer the report to the minister’s delegate, who is a CBSA officer, supervisor or high-ranking official acting on behalf of the minister. The minister’s delegate must review the facts of the inadmissibility and, if the allegations outlined in the report are well founded, refers the case to the Immigration Division at the Immigration and Refugee Board of Canada (IRB) for an admissibility hearing in order for a removal order to be issued.25

After a hearing, the Immigration Division can issue a removal order if there are grounds for inadmissibility.26 CBSA is then responsible for enforcing removal orders.27 It is possible to appeal removal orders at the Immigration Appeal Division.

For individuals who were inadmissible only because of sanctions under sections 35(1)(d) and 35(1)(e), the process was streamlined in 2019. The minister’s delegate only needed to review the report on removal and give its approval to begin removal proceedings.28

Once CBSA is ready to remove an individual,29 it issues a Notification Regarding a Pre-Removal Risk Assessment (PRRA)30 that advises the individual that they are entitled to apply for PRRA.

[This] is an opportunity for people who are facing removal from Canada to seek protection by describing, in writing, the risks they believe they would face if removed. Persons whose PRRA applications are approved may stay in Canada.31

Immigration, Refugees and Citizenship Canada is responsible for conducting the PRRA.

Section 42.1 of IRPA also provides the opportunity to individuals to apply to the minister to ask that the matters referred to in section 35(1) be reviewed with respect to determining inadmissibility. Individuals are required to satisfy the minister that those grounds for inadmissibility are not contrary to Canada’s national interest and are not a threat to the security of Canada.32

2 Description and Analysis

2.1 Amendments to the Immigration and Refugee Protection Act

Bill S-8 amends IRPA to establish a distinct ground of inadmissibility to Canada based on sanctions. It expands the scope of inadmissibility based on sanctions to include not only sanctions imposed on a country but also those imposed on an entity or a person. It also ensures that all orders and regulations made under SEMA are recognized in IRPA.

2.1.1 New Distinct Ground of Inadmissibility Based on Sanctions (Clauses 5 and 6)

Together, clauses 5 and 6 create a distinct new provision setting out a specific ground of inadmissibility based on sanctions and broaden the references to sanctions contained in IRPA.

Clause 5 repeals sections 35(1)(c), 35(1)(d) and 35(1)(e), which, prior to the coming into force of Bill S-8, set out grounds for inadmissibility with respect to the following types of sanctions regarding human or international rights violations:

• sanctions on a country based on decisions, resolutions or measures of an international organization of states or association of states, of which Canada is a member (section 35(1)(c));
• sanctions imposed under SEMA on the grounds of gross and systematic human rights violations or significant acts of corruption of a foreign public official or an associate (section 35(1)(d)); and
• sanctions imposed under the JVCFOA (section 35(1)(e)).

Clause 6 creates a new, distinct, inadmissibility ground based on sanctions in new section 35.1 of IRPA. While the foundation of the new sanctions regime mirrors that of the previous regimes, inadmissibility is applied to an expanded range of sanction scenarios.

Inadmissibility on the ground of sanctions based on decisions by international organizations of which Canada is a member is broadened by new section 35.1(1)(a). The ground now adds sanctions on entities, foreign nationals and foreign states, as defined in section 2 of SEMA, to the existing sanctions against a country.  

Under new section 35.1(1)(b), inadmissibility due to sanctions pursuant to SEMA is expanded beyond repealed section 35(1)(d) to include sections 4(1.1)(a) and 4(1.1)(b) of SEMA, respectively:

• sanctions in response to decisions by an international organization of states and or association of states, of which Canada is a member, to adopt economic sanctions against a foreign state; and
• sanctions in response to a grave breach of international peace and security that has resulted in or is likely to result in a serious international crisis.

These are in addition to the existing criteria contained in sections 4(1.1)(c) and 4(1.1)(d) of SEMA, respectively:

• sanctions in response to gross and systematic human rights violations committed in a foreign state; and
• sanctions in response to significant acts of corruption of a foreign public official or an associate.

The final sanctions regime, the JVCFOA, previously referred to in repealed section 35(1)(e), remains unchanged under new section 35.1(c) of IRPA.

2.1.2 Application of the New Sanctions Inadmissibility Provisions Under the Immigration and Refugee Protection Act (Clauses 1 to 4 and 7 to 11)

Bill S-8 adds the distinct sanctions ground for inadmissibility under new section 35.1 to its broader sanctions regime as described below. While sanctions were not absent from previous IRPA provisions regarding inadmissibility, they took a more limited form under the inadmissibility ground of violating human or international rights.

• Clause 1 adds sanctions to the types of inadmissibility that fall within the responsibility of the Minister of Public Safety and Emergency Preparedness for the enforcement of the Act under section 4(2)(c) of IRPA. This responsibility includes the establishment of policies respecting the enforcement of the inadmissibility provisions of IRPA. The other inadmissibility grounds in the section include security, violating human or international rights, and organized criminality.
• Clause 2 adds the expanded range of sanctions to the grounds for which a protected person under IRPA would be inadmissible to become a permanent resident. Under amended section 21(2) of IRPA, sanctions join inadmissibility on the grounds of security, violating human or international rights, serious criminality, organized criminality and health reasons.  
• Clauses 3 and 4 add the expanded range of sanctions to sections 25(1) and 25.1(1) of IRPA. This broadens the list of reasons that exempt a minister from examining whether a foreign national must be granted permanent resident status or an exemption from obligations under IRPA based on humanitarian and compassionate considerations. In this case, sanctions join the inadmissibility grounds of security, human or international rights violations, and organized criminality.
• Clause 7 adds sanctions to the existing limited grounds of security, human or international rights violations, and organized criminality where the exception to section 42(1) of IRPA does not apply. Section 42(1) renders a foreign national, other than a protected person, inadmissible to Canada if their accompanying (and, in some cases, non accompanying) family member is inadmissible or if they are family with and accompanying an inadmissible person. Section 42(2) grants an exception to this provision where the foreign national is a temporary resident, has applied for temporary residency, or has applied to remain in Canada as a temporary resident.
• Clause 9 adds sanctions to a list of grounds in section 55(3)(b) of IRPA that are to be considered by an officer when determining whether a permanent resident or foreign national, upon entering into Canada, is inadmissible and may be detained. In order to justify detention, the officer must have “reasonable grounds to suspect” that the person is inadmissible. Sanctions are added to the grounds of security, violating human or international rights, serious criminality, criminality and organized criminality.
• Clause 10 adds sanctions to a list of inadmissibility grounds in section 58(1)(c) of IRPA that allow the Immigration Division at the IRB to continue to hold a foreign national or permanent resident in detention. The Immigration Division may only continue detention, in this case, if it is satisfied that the minister is taking the necessary steps to inquire into a reasonable suspicion that the person is inadmissible. Sanctions are added to the grounds of security, violating human or international rights, serious criminality, criminality and organized criminality.
• Clause 11 adds sanctions to a list of inadmissibility grounds in section 64(1) of IRPA for which no appeal may be made to the Immigration Appeal Division at the IRB by a foreign national or permanent resident found to be inadmissible. Sanctions are added to the grounds of security, violating human or international rights, serious criminality and organized criminality.

2.1.3 Other Amendments to the Immigration and Refugee Protection Act (Clauses 8 and 12)

Clause 8 amends sections 42.1(1) and 42.1(2) of IRPA to remove the possibility for the minister, on application or by their own initiative, to declare that sanctions pursuant to decisions by international organizations do not constitute inadmissibility. Of note, the minister never had the power to do this for SEMA or JVCFOA sanctions.

Clause 12 is a consequential amendment that removes the inclusion of sanctions pursuant to decisions of international organization as an exception under section 101(1)(f) of IRPA. This means that refugee claimants who are determined to be inadmissible due to sanctions can nevertheless be referred to the Refugee Protection Division at the IRB.

2.1.4 Sanctions Imposed Before the Coming into Force of Bill S-8 (Clause 13)

Clause 13 ensures that individuals sanctioned before the coming into force of Bill S-8 are nevertheless subject to the amendments to IRPA as long as the decision, resolution, measure, order or regulation is in effect on the day that the bill comes into force.

2.2 Amendments to the Immigration and Refugee Protection Regulations

2.2.1 Declarations of Relief (Clauses 16 and 17)

Section 24.1(1) of the IRPR allows foreign nationals to apply for a declaration of relief under IRPA if a decision has been made to refuse their application for permanent or temporary resident status, or if a removal order has been issued against them based on certain determinations of inadmissibility.

Clause 16 removes inadmissibility based on sanctions pursuant to decisions of international organizations as one of the grounds for applying for a declaration of relief under section 24.1(1). Given this removal, clause 17 amends section 24.2(1)(g) to also remove the necessity of declaring such sanctions in an application for a declaration of relief.

2.2.2 Exception from Permit Holder Class (Clause 18)

The permit holder class is a class of foreign nationals who hold temporary resident permits and may become permanent residents based on certain requirements. Under section 65(b)(ii) of the IRPR, a foreign national is deemed a permit holder and a member of the permit holder class if they have continuously resided in Canada as a permit holder for a period of at least five years, minus exceptions. Clause 18 amends section 65(b)(ii) to add sanctions as one of the exceptions, along with inadmissibility due to security, violating human or international rights, serious criminality and organized criminality.

2.2.3 Removal Orders (Clauses 19 and 20)

Immigration officers who are of the opinion that a permanent resident or a foreign national in Canada is inadmissible may submit a report on the matter to the minister. If the minister agrees the report is well founded, the minister may refer the report to the Immigration Division for an admissibility hearing or, in certain cases, the minister may directly make a removal order.

Section 228(1) of the IRPR sets out instances in which the report is not referred to the Immigration Division and lists the types of corresponding removal orders. Clause 19 amends section 228(1)(f) by replacing the inadmissibility ground contained in repealed sections 35(1)(d) and 35(1)(e) of IRPA (sanctions on the ground of violating human or international rights) with the distinct sanctions category created by new section 35.1. Accordingly, reports of foreign nationals inadmissible due to sanctions are not to be forwarded to the Immigration Division and their removal orders are deemed to be deportation orders.

Given that clause 19 amends the IRPR to remove sanctions from the jurisdiction of the Immigration Division, clause 20 makes a consequential amendment to section 229(1)(b) by removing sanctions from the list of possible deportation orders to be decided by the Immigration Division.

2.2.4 Stays of Removal (Clause 21)

Under section 230(1) of the IRPR, the minister may impose a stay of removal orders if the circumstances in the country or place of return pose a generalized risk to the entire civilian population due to events listed in the IRPR. Clause 21 amends section 230(3) by adding inadmissibly related to sanctions to a list of exceptions that exclude a person from benefiting from a stay of removal.

2.2.5 Transitional Provision (Clause 22)

Clause 22 ensures that sections 228(1)(f) and 229(1)(b) of the IRPR continue to apply as they read before Bill S-8 receives Royal Assent in respect of a foreign national awaiting the outcome of an admissibility hearing before the Immigration Division that began before Royal Assent.  

2.3 Amendments to the Citizenship Act (Clause 14)

Under sections 10(1) and 10.1(1) of the Citizenship Act,33 a person’s citizenship or renunciation of citizenship may be revoked for reasons of false representation, fraud or knowingly concealing material circumstances only if the minister seeks a declaration from a court that the person has obtained, retained, renounced or resumed their citizenship in a fraudulent manner.

Clause 14 amends section 10.1(4) of the Citizenship Act to add sanctions to a list of inadmissibility grounds that limit the burden of the minister when seeking the declaration from a court. In cases where false representation, fraud or knowingly concealing material circumstances relate to a situation described in new section 35.1 of IRPA (inadmissibility based on sanctions), the minister seeking a declaration will only need to prove that the person obtained, retained, renounced or resumed their citizenship by false representation or fraud or by knowingly concealing material circumstances.

2.4 Amendments to the Emergencies Act (Clause 15)

Section 30(1) of the Emergencies Act34 foresees orders and regulations that may be made by the Governor in Council while an international emergency is in effect. While the removal of persons from Canada figures among the possible measures, section 30(1)(h)(iii)(A) of the Emergencies Act places limits on who may be removed. Clause 15 adds sanctions to section 30(1)(h)(iii)(A) of the Emergencies Act, thus allowing protected persons subject to the sanctions outlined in new section 35.1 of IRPA to be subject to a removal order in cases of an international emergency.

2.5 Coordinating Amendments (Clause 15.1)

Bill S-8 was amended by the Standing Senate Committee on Foreign Affairs and International Trade at the report stage to add clause 15.1.35 The addition ensured that proposed changes to IRPA made by both Bill S-8 and Bill C-21 would be harmonized and do not negate each other. As a result, both sanctions and transborder criminality are included as grounds for inadmissibility or detention under IRPA.36

2.6 Review of the Act (Clause 23)

Bill S-8 was amended by the House of Commons Standing Committee on Foreign Affairs and International Development to add clause 23, which mandates a review of the provisions enacted or amended by this bill three years after receiving Royal Assent. The review is to be undertaken by a committee of the Senate, House of Commons, or both. The designated committee is tasked with reviewing the provisions and submitting a report to the relevant house or houses of Parliament. The committee can also recommend amendments to the provisions.

Notes