Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note:Consideration of application

113 Consideration of an application for protection shall be as follows:

• (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

• (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;

• (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;

• (d) in the case of an applicant described in subsection 112(3) — other than one described in subparagraph (e)(i) or (ii) — consideration shall be on the basis of the factors set out in section 97 and

  • (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or

  • (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada; and

• (e) in the case of the following applicants, consideration shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or (ii), as the case may be:

  • (i) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punishable by a maximum term of imprisonment of at least 10 years for which a term of imprisonment of less than two years — or no term of imprisonment — was imposed, and

  • (ii) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, unless they are found to be a person referred to in section F of Article 1 of the Refugee Convention.

Marginal note:Mandatory hearing

113.01 Unless the application is allowed without a hearing, a hearing must, despite paragraph 113(b), be held in the case of an applicant for protection whose claim for refugee protection has been determined to be ineligible solely under paragraph 101(1)(c.1).

Marginal note:Effect of decision

• 114 (1) A decision to allow the application for protection has

  • (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and

  • (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.

• Marginal note:Cancellation of stay

  (2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.

• Marginal note:Vacation of determination

  (3) If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or withholding material facts on a relevant matter, the Minister may vacate the decision.

• Marginal note:Effect of vacation

  (4) If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected.

Principle of Non-refoulement

Marginal note:Protection

• 115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply in the case of a person

  • (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or

  • (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

• Marginal note:Removal of refugee

  (3) A person, after a determination under paragraph 101(1)(e) that the person’s claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.

Marginal note:Regulations

116 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under section 115, including the establishment of factors to determine whether a hearing is required.

PART 3Enforcement

Human Smuggling and Trafficking

Marginal note:Organizing entry into Canada

• 117 (1) No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.

• Marginal note:Penalties — fewer than 10 persons

  (2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

  • (a) on conviction on indictment

    • (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

    • (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

  • (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

• Marginal note:Penalty — 10 persons or more

  (3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

• Marginal note:Minimum penalty — fewer than 50 persons

  (3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of

  • (a) three years, if either

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

  • (b) five years, if both

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• Marginal note:Minimum penalty — 50 persons or more

  (3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of

  • (a) five years, if either

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

  • (b) 10 years, if both

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• Marginal note:No proceedings without consent

  (4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

Marginal note:Offence — trafficking in persons

• 118 (1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

• Marginal note:Definition of organize

  (2) For the purpose of subsection (1), organize, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

Marginal note:Disembarking persons at sea

119 A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act.

Marginal note:Penalties

120 A person who contravenes section 118 or 119 is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

Marginal note:Aggravating factors

121 The court, in determining the penalty to be imposed under section 120, shall take into account whether

• (a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence;

• (b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;

• (c) the commission of the offence was for profit, whether or not any profit was realized; and

• (d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.

Marginal note:Definition of criminal organization

• 121.1 (1) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii) and paragraph 121(b), criminal organization means a criminal organization as defined in subsection 467.1(1) of the Criminal Code.

• Marginal note:Definition of terrorist group

  (2) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii), terrorist group means a terrorist group as defined in subsection 83.01(1) of the Criminal Code.

Offences Related to Documents

Marginal note:Documents

• 122 (1) No person shall, in order to contravene this Act,

  • (a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity;

  • (b) use such a document, including for the purpose of entering or remaining in Canada; or

  • (c) import, export or deal in such a document.

• Marginal note:Proof of offence

  (2) Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act.

Marginal note:Penalty

• 123 (1) Every person who contravenes

  • (a) paragraph 122(1)(a) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to five years; and

  • (b) paragraph 122(1)(b) or (c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years.

• Marginal note:Aggravating factors

  (2) The court, in determining the penalty to be imposed, shall take into account whether

  • (a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121.1(1); and

  • (b) the commission of the offence was for profit, whether or not any profit was realized.

General Offences

Marginal note:Contravention of Act

• 124 (1) Every person commits an offence who

  • (a) contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act;

  • (b) escapes or attempts to escape from lawful custody or detention under this Act; or

  • (c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.

• Marginal note:Deemed knowledge

  (2) For the purposes of paragraph (1)(c), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized.

• Marginal note:Due diligence defence

  (3) A person referred to in subsection 148(1) shall not be found guilty of an offence under paragraph (1)(a) if it is established that they exercised all due diligence to prevent the commission of the offence.

Marginal note:Penalties

125 A person who commits an offence under subsection 124(1) is liable

• (a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; or

• (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.

Marginal note:Counselling misrepresentation

126 Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.