Immigration and Refugee Protection Regulations (SOR/2002-227)

Marginal note:Application of par. 50(a) of the Act

234 For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if

• (a) there is an agreement between the Canada Border Services Agency and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or

• (b) there is an agreement between the Canada Border Services Agency and the Attorney General of Canada or the attorney general of a province to withdraw or cancel any summons or subpoena on the removal of the person from Canada.

DIVISION 4Enforcement of Removal Orders

Marginal note:Not void

235 For greater certainty, and subject to section 51 of the Act, a removal order does not become void by reason of any lapse of time.

Marginal note:Providing copies

236 A person against whom a removal order is made shall be provided with a copy of the order when it is made.

Marginal note:Modality of enforcement

237 A removal order is enforced by the voluntary compliance of a foreign national with the removal order or by the removal of the foreign national by the Minister.

Marginal note:Voluntary compliance

• 238 (1) A foreign national who wants to voluntarily comply with a removal order must appear before an officer who shall determine if

  • (a) the foreign national has sufficient means to effect their departure to a country that they will be authorized to enter; and

  • (b) the foreign national intends to voluntarily comply with the requirements set out in paragraphs 240(1)(a) to (c) and will be able to act on that intention.

• Marginal note:Choice of country

  (2) Following the appearance referred to in subsection (1), the foreign national must submit their choice of destination to the officer who shall approve the choice unless the foreign national is

  • (a) a danger to the public;

  • (b) a fugitive from justice in Canada or another country; or

  • (c) seeking to evade or frustrate the cause of justice in Canada or another country.

Marginal note:Removal by Minister

239 If a foreign national does not voluntarily comply with a removal order, a negative determination is made under subsection 238(1) or the foreign national’s choice of destination is not approved under subsection 238(2), the removal order shall be enforced by the Minister.

Marginal note:When removal order is enforced

• 240 (1) A removal order against a foreign national, whether it is enforced by voluntary compliance or by the Minister, is enforced when the foreign national

  • (a) appears before an officer at a port of entry to verify their departure from Canada;

  • (b) obtains a certificate of departure from the Canada Border Services Agency;

  • (c) departs from Canada; and

  • (d) is authorized to enter, other than for purposes of transit, their country of destination.

• Marginal note:When removal order is enforced by officer outside Canada

  (2) If a foreign national against whom a removal order has not been enforced has departed from Canada and applies outside Canada for a visa, an electronic travel authorization or an authorization to return to Canada, an officer shall enforce the order if, following an examination, the foreign national establishes that they are the person described in the order.

• Marginal note:When removal order is enforced by officer in Canada

  (3) A removal order against a foreign national is enforced by an officer in Canada when the officer confirms that the foreign national has departed from Canada.

• Marginal note:Application of subsections (2) and (3)

  (4) For greater certainty, subsections (2) and (3) apply in respect of any removal order made before the day on which those subsections come into force.

Marginal note:Country of removal

• 241 (1) If a removal order is enforced under section 239, the foreign national shall be removed to

  • (a) the country from which they came to Canada;

  • (b) the country in which they last permanently resided before coming to Canada;

  • (c) a country of which they are a national or citizen; or

  • (d) the country of their birth.

• Marginal note:Removal to another country

  (2) If none of the countries referred to in subsection (1) is willing to authorize the foreign national to enter, the Minister shall select any country that will authorize entry within a reasonable time and shall remove the foreign national to that country.

• Marginal note:Exception

  (3) Despite section 238 and subsection (1), the Minister shall remove a person who is subject to a removal order on the grounds of inadmissibility referred to in paragraph 35(1)(a) of the Act to a country that the Minister determines will authorize the person to enter.

Marginal note:Mutual Legal Assistance in Criminal Matters Act

242 A person transferred under an order made under the Mutual Legal Assistance in Criminal Matters Act is not, for the purposes of paragraph 240(1)(d), a person who has been authorized to enter their country of destination.

Marginal note:Payment of removal costs

243 Unless expenses incurred by Her Majesty in right of Canada have been recovered from a transporter, a foreign national who is removed from Canada at Her Majesty’s expense shall not return to Canada if the foreign national has not paid to Her Majesty the removal costs of

• (a) $750 for removal to the United States or St. Pierre and Miquelon; and

• (b) $1,500 for removal to any other country.

PART 14Detention and Release

Marginal note:Factors to be considered

244 For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person

• (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;

• (b) is a danger to the public; or

• (c) is a foreign national whose identity has not been established.

Marginal note:Flight risk

245 For the purposes of paragraph 244(a), the factors are the following:

• (a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;

• (b) voluntary compliance with any previous departure order;

• (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;

• (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;

• (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;

• (f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and

• (g) the existence of strong ties to a community in Canada.

Marginal note:Danger to the public

246 For the purposes of paragraph 244(b), the factors are the following:

• (a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;

• (b) association with a criminal organization within the meaning of subsection 121(2) of the Act;

• (c) engagement in people smuggling or trafficking in persons;

• (d) conviction in Canada under an Act of Parliament for

  • (i) a sexual offence, or

  • (ii) an offence involving violence or weapons;

• (e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,

  • (i) section 5 (trafficking),

  • (ii) section 6 (importing and exporting), and

  • (iii) section 7 (production);

• (f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for

  • (i) a sexual offence, or

  • (ii) an offence involving violence or weapons;

• (g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,

  • (i) section 5 (trafficking),

  • (ii) section 6 (importing and exporting), and

  • (iii) section 7 (production);

• (h) conviction for an offence in Canada under any of the following provisions of the Cannabis Act, namely,

  • (i) section 9 (distribution),

  • (ii) section 10 (selling),

  • (iii) section 11 (importing and exporting), and

  • (iv) section 12 (production); and

• (i) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Cannabis Act, namely,

  • (i) section 9 (distribution),

  • (ii) section 10 (selling),

  • (iii) section 11 (importing and exporting), and

  • (iv) section 12 (production).

Marginal note:Identity not established

• 247 (1) For the purposes of paragraph 244(c), the factors are the following:

  • (a) the foreign national’s cooperation in providing evidence of their identity or assisting the Department or the Canada Border Services Agency in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father, in providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document;

  • (b) in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence;

  • (c) the foreign national’s destruction of their identity or travel documents, or the use of fraudulent documents by the foreign national in order to mislead the Department or the Canada Border Services Agency, and the circumstances under which the foreign national acted;

  • (d) the provision of contradictory information by the foreign national with respect to their identity during the processing of an application by the Department or the Canada Border Services Agency; and

  • (e) the existence of documents that contradict information provided by the foreign national with respect to their identity.

• Marginal note:Non-application to minors

  (2) Consideration of the factors set out in paragraph (1)(a) shall not have an adverse impact with respect to minor children referred to in section 249.

Marginal note:Other factors

248 If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:

• (a) the reason for detention;

• (b) the length of time in detention;

• (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;

• (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned;

• (e) the existence of alternatives to detention; and

• (f) the best interests of a directly affected child who is under 18 years of age.

Marginal note:Best interests of the child

• 248.1 (1) For the purpose of paragraph 248(f) and for the application, in respect of children who are under 18 years of age, of the principle affirmed in section 60 of the Act, that a minor child shall be detained only as a measure of last resort, the following factors must be considered when determining the best interests of the child:

  • (a) the child’s physical, emotional and psychological well-being;

  • (b) the child’s healthcare and educational needs;

  • (c) the importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability;

  • (d) the care, protection and safety needs of the child; and

  • (e) the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity.

• Marginal note:Degree of dependence

  (2) For the purpose of paragraph 248(f), the level of dependency of the child on the person for whom there are grounds to detain shall also be considered when determining the best interests of the child.