Crimes Against Humanity and War Crimes Program Evaluation

Denial of Visa to Persons Outside Canada

Denial of Visa to Persons Outside Canada, described below

Notes:

1. In cases where a person is denied status because they are a senior official from a government that engaged in terrorism, systematic or gross human rights violations, war crimes or crimes against humanity, that person may seek ministerial relief.

2. In exceptional cases, a client may submit an application for a temporary residence permit to overcome an inadmissibility.

Denial of Visa to Persons Outside Canada - Text Version

Visa application is received and reviewed by IRCC Visa Officer.  Application raises CAHWC concerns.

RCMP Liaison Officers may be contacted by the local police, in which case they would link to the IRCC Visa Officer.

CBSA Liaison Officer may be called upon to provide support or advice to the IRCC Visa Officer.

The IRCC Visa Officer may send the file to CBSA HQ.  The CBSA NHQ Analyst(s) conducts research and may request information from INTERPOL Ottawa.  The CBSA NHQ Analyst may ask IRCC officer for more information.

The CBSA NHQ Analyst provides a recommendation to the IRCC Visa Officer.  The IRCC Visa Officer renders a decision and notifies the applicant.  Either a visa is issued or refused.  If the visa is refused, the applicant may seek leave to judicial review.

Note that an applicant may supply new information to the IRCC Visa Officer, which may require CBSA to become involved again.

Admissibility/Eligibility Refugee Claim Determination

Admissibility/Eligibility Refugee Claim Determination, described below

Notes:

PRRA: Pre-Removal Risk Assessment

1. Indicates option to seek a judicial review

2. Person can be removed if no judicial stay (This is the same in the case of a JR or a PRRA decision).

3. In cases where a person is denied status because they are a senior official from a government that engaged in terrorism, systematic or gross human rights violations, war crimes or crimes against humanity, that person may seek ministerial relief. However, the application in and of itself does not stay the removal.

4. In exceptional cases, a client may submit an application for a temporary residence permit to overcome an inadmissibility.

5. Process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court of Canada.

6. Danger Opinion Process: if person had Convention Refugee or protected person status, CBSA would need to seek danger opinion from IRCC Minister before removal process may begin.

Admissibility/Eligibility Refugee Claim Determination - Text Version

Scenario 1: Person arrives at Canadian port of entry or is encountered by CBSA Inland Enforcement in Canada

CBSA Officer has claimant complete form, conducts interview, assesses their admissibility to Canada and eligibility for referral to IRB and refers to screening.

Branch 1: If there are no CAHWC inadmissibility detected, the claim is referred to the Refugee Protection Division of the IRB

1a) If the claim is approved, and the person is found to be a Convention Refugee or person in need of protection, the person may apply for permanent residence. Minister may appeal to RAD.  RAD decision.  Note, there is an option to seek a judicial review of the RAD decision.

1b) If the claim is rejected or excluded and the claimant does not contest the decision and waives the PRRA, CBSA initiates removal proceedings.

1c) If the claim is rejected or excluded and the claimant is barred from RAD, CBSA initiates the PRRA if the person is eligible and applies.  IRCC conducts PRRA. Note there is an option to seek a judicial review. If the PRRA is negative, CBSA initiates removal proceedings.  If the PRRA is positive, the person may remain in Canada and the case is to be re-examined at a later date due to change in circumstances.

1d) If the claim is rejected or excluded, the claimant may appeal to IRB’s RAD.  The claimant seeks a judicial review to Federal Court.  Justice represents CBSA in Federal Court.  The person can be removed if no judicial stay (this is the same in the case of a JR or a PRRA decision).

If the JR is dismissed and the claimant does not contest the decision and waives the PRRA, CBSA initiates removal proceedings.

If the JR is dismissed, CBSA initiates the PRRA if the person is eligible and applies.  IRCC conducts the PRRA. Note that there is an option for judicial review.  If the PRRA is negative, CBSA initiates removal proceedings.  If the PRRA is positive, the person may remain in Canada and the case is to be re-examined at a later date due to change in circumstances.

If the JR is allowed, the person is found to be a Convention Refugee or person in need of protection, then the person may apply for permanent residence. Minister may appeal to RAD, resulting in a RAD decision.  Note, that the JR process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court of Canada and there is an option to seek a judicial review of the RAD decision.

Branch 2: CAHWC inadmissibility report prepared and referred to IRB’s Immigration Division.

CBSA Hearings officer represents Minister at admissibility hearing.

2a) If there is no finding of inadmissibility, the claim is referred to the Refugee Protection Division of the IRB and follows the process outlined in Branch 1.

2b) If the person is determined inadmissible and subject to be removed, if the claimant is not eligible for a PRRA, nor seeks JR, CBSA initiates removal proceedings. Note that if the person had Convention Refugee or protected person status, CBSA would need to seek danger opinion from IRCC Minister before removal process may begin.

2c) If the person is determined inadmissible and subject to be removed, CBSA initiates the PRRA if the person is eligible and applies.  IRCC conducts the PRRA. Note that there is an option for judicial review.  If the PRRA is negative, CBSA initiates removal proceedings.  If the PRRA is positive, the person may remain in Canada and the case is to be re-examined at a later date due to change in circumstances.

2d) If the person is determined inadmissible and subject to be removed, the claimant can seek a JR to Federal Court. Justice represents CBSA in Federal Court.  The person can be removed if no judicial stay (this is the same in the case of a JR or a PRRA decision).

If the JR is dismissed and the claimant does not contest the decision and waives the PRRA, CBSA initiates removal proceedings.

If the JR is dismissed, CBSA initiates the PRRA if the person is eligible and applies.  IRCC conducts the PRRA. Note that there is an option for judicial review.  If the PRRA is negative, CBSA initiates removal proceedings.  If the PRRA is positive, the person may remain in Canada and the case is to be re-examined at a later date due to change in circumstances.

If the JR is allowed, the person is found to be a Convention Refugee or person in need of protection, then the person may apply for permanent residence. Minister may appeal to RAD, resulting in a RAD decision.  Note, that the JR process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court of Canada and there is an option to seek a judicial review of the RAD decision.

Scenario 2: Person makes a claim to IRCC officer in Canada

IRCC officer has claimant complete form, conducts interview, assesses admissibility to Canada and eligibility for referral to IRB and refers to screening.

If no CAHWC inadmissibility detected, the claim is referred to Refugee Protection Division of IRB and follows the process outlined in Branch 1.

CBSA Officer examines the file and may conduct an interview.  INTERPOL Ottawa may receive a request for information.  The CBSA Officer i) does not write a 44 report or ii) a CBSA Hearings Officer may intervene at an RPD hearing, either leads to the claim being referred to the Refugee Protection Division of IRB and follows the process outlined in Branch 1.

If the CBSA Officer writes a 44 report for CAHWC inadmissibility, the claim is referred to IRB’s Immigration Division for an admissibility hearing and follows the process outlined in Branch 2.

Extradition Request Made to Canada

Extradition Request Made to Canada, described below

Notes:

1) A person may, any time after arrest or appearance, waive extradition in writing and before a judge.

2) IRCC may be consulted or asked to verify information regarding concerned person throughout the process.

Extradition Request Made to Canada - Text Version

The first stage is Provisional Arrest.

An extradition partner makes a request for provisional arrest or extradition.

INTERPOL Ottawa may receive a request for information.  The RCMP may receive a request to locate and identify the individual.  The RCMP may conduct an investigation to determine the citizenship status of the fugitive.  The RCMP may complete an affidavit with Justice to support an application for a warrant.

The Minister of Justice may authorize the Attorney General to seek a warrant for provisional arrest.  A Superior court judge may issue a warrant for provisional arrest.

The RCMP may initiate an operational plan and arrest the fugitive anywhere in Canada and execute the warrant.

A Superior court judge may discharge if no proceedings.

The second stage is the Authority to Proceed.

The Minister of Justice may issue an authority to proceed.  A Superior court judge may issue an arrest warrant or summons following an authority to proceed.

The third stage is the Appearance and Setting a Date for a Hearing.

The RCMP will escort the subject to the initial hearing, and the person arrested appears before a Superior court judge or justice.

The judge may order release or detention.  If detained, the RCMP will escort the subject to all hearings.

The Court of Appeal may review the release or detention.

Appearance of the person arrested or summoned and date is set for hearing before a Superior court judge.

The fourth stage is the Extradition Hearing.

The extradition hearing occurs, and the RCMP may be required to give evidence pertaining to how it established the identity of the subject and on the arrest itself.

The judge may make an order of committal or discharge.  The judge’s report is given to the Minister of Justice.

The Minister of Justice may make a surrender order (including impose conditions on surrender, if appropriate). There are 45 days to remove if there isn’t an appeal or judicial review.  The Minister may also postpone or surrender or order a temporary surrender.  The Minister may also order the discharge of the person.

The next stage is an Appeal or Judicial Review.

There may be an appeal of committal or discharge.  This would be at the Court of Appeal.  There are 45 days to remove after the appeal is dismissed if there isn’t a further appeal.

There may be a judicial review of the Minister’s surrender order.  This would be at the Court of Appeal.  There are 45 days to remove after the judicial review if there isn’t a further appeal.

There may be leave to appeal and an appeal to the Supreme Court of Canada.  There are 45 days to remove after leave or appeal is dismissed.

The final step is to execute the surrender order by the designated persons.  The RCMP may escort or assist in escorting the fugitive to the requesting country as required.

Files sent to PCOC for review and choice of remedy

File Review

File Review, described below

Note:

The partner departments have each been assigned a colour in the process flows: RCMP is red; Justice is yellow; CBSA is blue and IRCC green. Purple boxes indicates all four partners are involved.

File Review - Text Version

An allegation is received by Justice, the CBSA, IRCC or the RCMP.

Partners conduct preliminary assessments as appropriate.

The Review Committee (which includes all partners, IRCC, CBSA, Justice and the RCMP), chooses remedy: criminal investigation, revocation of citizenship, or an admissibility hearing and removal under IRPA.

Criminal Investigation

Criminal Investigation, described below

Note: Inquiry and removal under IRPA and Revocation of Citizenship are options available throughout the above process.

Criminal Investigation - Text Version

A complaint is received by one of the partners (CBSA, IRCC, Justice, RCMP).

RCMP conducts preliminary investigation of the complainant and subject of the complaint. Once all information and documents have been collected, and criteria met, submitted to the File Review Committee.  As part of this step, the RCMP may need to acquire a statement from the complainant, which may necessitate travel to an outside location. RCMP may need to contact Liaison Officers overseas and/or Justice IAG for MLATs for documents. CBSA analyst verifies if the complainant and subject of the complaint are in their databases.

The File Review Committee meets and determines if the file meets criteria. Once it is deemed that criminal prosecution should be pursued, the RCMP Investigators submit an investigational planning and report to secure the resources and complete a major project prioritization matrix for NHQ Federal policing who will establish the file investigational priority.

Once the file is deemed a priority, RCMP conducts further checks with various federal agencies (e.g., Passport Canada, Industry Canada, etc.).

Justice conducts full analysis (legal and factual); considers if there is an MOU with the country/countries involved; researches allegations and travels to country to see archival documents. Justice prepares report for the RCMP providing context, contacts, leads, identifies evidence gaps and provides legal advice to RCMP. The analysis is conducted throughout the process as required.

Justice conducts the initial visit to the countries where crimes allegedly occurred.  Justice seeks cooperation from country to access documents and interviews witnesses. May require negotiations or MOU with country. Global Affairs Canada may assist via diplomatic channels to initiate the first meeting. The RCMP Liaison Officers may assist with coordination, logistics, etc. with local police. If needed, RCMP representative may accompany Justice on visit to negotiate MOU.

RCMP makes a formal request to host country for permission to conduct a criminal investigation, either by way of a Mutual Legal Assistance Treaty via Justice IAG, or request through INTERPOL, or directly to the host country if an MOU or an agreement was reached.

RCMP makes several visits to country or alternate country to interview witnesses and gather documentary and/or forensic evidence. This may include conducting filmed scene re-visitation with the witnesses; exhumation of deceased victims; archeological sub-surface survey to support witness statements. RCMP must meet with local authorities, interpreters and trackers hired to aid on the location of witnesses. The RCMP must hire translators to translate/transcribe witness interviews which are disclosed to Justice for analysis. RCMP may also employ police investigative techniques, including surveillance of suspect for information gathering to support the development of undercover operations and judicial authorizations that will be drafted by the RCMP. Justice analyst/counsel may accompany the RCMP officer on visits. On final trip, witnesses are proofed by Justice counsel.

RCMP prepares report/disclosure package for Justice containing all gathered evidence and analysis. The disclosure of evidence from the RCMP to Justice is ongoing throughout the investigation.

Justice lawyers prepare legal analysis and final report to recommend charges and forward report to Public Prosecution Service of Canada (PPSC).

PPSC analyze report and provide recommendation to the Attorney General. If the decision is to not prosecute, the case could go to the Inquiry and Removal under IRPA process or the Revocation of Citizenship.

If the AG renders written decision to prosecute, the RCMP prepares an operational plan for the arrest and interview strategy with the assistance of the Truth Verification Section (polygraph) and the Behavioural Sciences Branch.

RCMP drafts judicial authorization/warrant(s) in preparation for arrest.

RCMP lay charges and requests a warrant for the person’s arrest.

RCMP executes operational plan and arrests subject, executes warrant(s) and other judicial authorizations/police undercover techniques.

RCMP conducts interrogation of the accused with the assistance of polygraph.

PPSC will show cause to a Superior Court judge seeking to have the accused remanded to custody until his trial. RCMP assists PPSC.

File sent to PPSC for prosecution.

Prosecution.

Prosecution

Prosecution, described below

Prosecution - Text Version

Decision to prosecute.

Justice provides support, ongoing before and during trial.

RCMP officer present when PPSC lawyers interview prosecution witnesses.

The case goes to Provincial Superior Court. PPSC and Justice lawyers are present. The RCMP officer is present in court and handles information requests from the Prosecution.

If travel is required, PPSC and Justice lawyers travel internationally to bring witnesses to Canada for court and all parties travel to country or video-conference with witnesses if key witnesses cannot travel. The RCMP Liaison Officers may assist with coordination with local police.

If no travel or no additional travel is required, the next step is the verdict.

If it is appealed, the Provincial Court of Appeal hears the case. PPSC and Justice lawyers are present.

This leads to a verdict.

If it is appealed, the Supreme Court hears the case.  PPSC and Justice lawyers are present. This leads to the final verdict.

Revocation of Citizenship (1)

Revocation of Citizenship (1), described below

Notes:

1. This describes the process that was in place during the evaluation period. The process changed effective May 29th, 2015 when Bill C-24 came into force.

2. Process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

Revocation of Citizenship (1) - Text version

The RCMP, INTERPOL Ottawa, CBSA and IRCC in consultation with Justice decide not to prosecute in favour of pursuing revocation of citizenship.

Justice reviews file and provides an opinion. If revocation is not recommended that is the end. If Justice recommends revocation to the IRCC Minister, then IRCC sends notice of intent to revoke to the person.

If the person does not request the case be referred to Federal Court for a hearing, then Justice, on behalf of IRCC, prepares submissions for IRCC Minister on whether the citizenship should be revoked. Justice provides IRCC with a draft report and submission to send to the Governor in Council (GIC). The individual is given an opportunity to make personal interest submission on why citizenship should not be revoked

If the person requests that the case be referred to Federal Court for hearing, then Justice prepares for the Federal Court hearing. The Federal Court hears the case. Experts and witnesses may be consulted or required to testify. If the Court rules there was no fraud material to the PR/Citizenship application, the case stops here. If the Court rules the person misrepresented during the immigration or citizenship process, then Justice, on behalf of IRCC, prepares submissions for IRCC Minister on whether the citizenship should be revoked. Justice provides IRCC with a draft report and submission to send to the GIC. The individual is given an opportunity to make personal interest submissions on why citizenship should not be revoked.

IRCC briefs the Minister on the recommendation to revoke citizenship to the GIC.

GIC decides whether to revoke citizenship based on all submissions. If the GIC decides to not revoke citizenship, that ends the process.

If the GIC decides to revoke citizenship, the individual can challenge the revocation decision at Federal Court through judicial review.

The Federal Court Judicial Review may result in the court siding with the individual, or with the Government of Canada. Note that the process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court. If the court sides with the Government of Canada, the CBSA may begin enforcement process described in Removal under the IRPA.

Investigation, Admissibility Hearing and Removal from Canada under the Immigration and Refugee Protection Act

Investigation, Admissibility Hearing and Removal from Canada under the Immigration and Refugee Protection Act, described below

Notes:

1. Indicates option to seek a judicial review

2. Person can be removed if no judicial stay (This is the same in the case of a JR or a PRRA decision).

3. In cases where a person is denied status because they are a senior official from a government that engaged in terrorism, systematic or gross human rights violations, war crimes or crimes against humanity, that person may seek ministerial relief. However, the application in and of itself does not stay the removal.

4. In exceptional cases, a client may submit an application for a temporary residence permit to overcome an inadmissibility.

5. Process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

6. danger Opinion Process: if person had convention refugee or protected person status, CBSA would need to seek danger opinion from IRCC Minister before removal process may begin.

Investigation, Admissibility Hearing and Removal from Canada under the Immigration and Refugee Protection Act - Text version

This process may begin from a referral to CBSA from a decision by Justice and RCMP following a criminal investigation or from tip information received by CBSA regarding a CAHWC case.

CBSA officer reviews information and i) interviews the person, writes A44 Report, refers to Admissibility Hearing, or ii) seeks cessation or vacation. As part of this step, INTERPOL Ottawa receives request for information. IRCC reviews information, conducts interview and liaises with CBSA.

Branch i) Admissibility Hearing

If it is referred to Admissibility Hearing, CBSA Hearings Officer represents the Minister at the hearing in front of the Immigration Division (ID) of the Immigration Refugee Board (IRB). If the person is determined admissible, the person retains status. CBSA may seek a judicial review of the decision. Note that the process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

If the person is determined inadmissible, a removal order is issued. Note: if the person had convention refugee or protected person status, CBSA would need to seek a danger opinion from the IRCC Minister before the removal process can begin.

The person may seek a judicial review (JR) of the inadmissibility decision at Federal Court. Justice represents CBSA at Federal Court. Note that the person can be removed if no judicial stay (this is the same in the case of a JR or a PRAA decision). Either the JR is allowed or dismissed. The process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

If a removal order is issued, the person may apply for a Pre-Removal Risk Assessment (PRRA). If eligible, CBSA initiates the PRRA. Note that if citizenship is revoked, that process leads to this step.

IRCC reviews and decides on the PRRA. If IRCC finds the person is not at risk, CBSA proceeds with the removal process. If IRCC finds the person is at risk, there is a stay of removal. The stay of removal may be re-examined at a later date due to change in circumstances.

Branch ii) Cessation or Vacation

CBSA pursues a cessation or vacation for Convention Refugee (CR) status at the Refugee Protection Board of the IRB. If CR status is not vacated or ceased, the person retains the status. The Minister may seek JR of the decision at Federal Court. Justice represents CBSA at Federal Court. Note that the process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

If refugee status is vacated or ceased the person has an option to seek a judicial review. CBSA writes A44 report. The CBSA Minister’s delegate review the A44 report. If the person is determined admissible, the person retains status. CBSA may seek JR of the decision. Note that the process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

If the person is determined inadmissible, a removal order is issued. Note: if the person had Convention refugee or protected person status, CBSA would need to seek a danger opinion from the IRCC Minister before the removal process can begin.

The person may seek a judicial review (JR) of the inadmissibility decision at Federal Court. Justice represents CBSA at Federal Court. Note that the person can be removed if no judicial stay (this is the same in the case of a JR or a PRAA decision). Either the JR is allowed or dismissed. The process may be challenged further by both parties at the Federal Court of Appeal and all the way to the Supreme Court.

If a removal order is issued, the person may apply for a Pre-Removal Risk Assessment (PRRA). If eligible, CBSA initiates the PRRA. Note that if citizenship is revoked, that process leads to this step.

IRCC reviews and decides on the PRRA. If IRCC finds the person is not at risk, CBSA proceeds with the removal process. If IRCC finds the person is at risk, there is a stay of removal. The stay of removal may be re-examined at a later date due to change in circumstances.

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