Vol. 148, No. 9 — April 23, 2014

Registration

SOR/2014-83 April 4, 2014

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program)

P.C. 2014-360 April 3, 2014

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program), substantially in the annexed form, to be laid before each House of Parliament;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and paragraph 150.1(1)(d) (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program).

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (MISCELLANEOUS PROGRAM)

AMENDMENT

1. Section 13.11 of the Immigration and Refugee Protection Regulations (see footnote 1) and the headings before it are replaced by the following:

DIVISION 4.1

USE AND DISCLOSURE OF BIOMETRIC INFORMATION AND RELATED PERSONAL INFORMATION

Disclosure of information

13.11 (1) Any biometric information and related personal information set out in subsection (2) that is provided to the Royal Canadian Mounted Police under the Act may be used or disclosed by it to a law enforcement agency in Canada for the following purposes, if there is a potential match between fingerprints collected under the Act and fingerprints collected by it or submitted to it by a law enforcement agency in Canada:

Information that may be used or disclosed

(2) The following information in respect of a foreign national or a permanent resident may be used or disclosed by the Royal Canadian Mounted Police under subsection (1):

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Section 13.11 of the Immigration and Refugee Protection Regulations (IRPR) was not tabled in Parliament as required by subsection 5(2) of the Immigration and Refugee Protection Act (IRPA) due to an administrative error. This section must therefore be tabled and remade by the Governor in Council (GIC).

Background

In December 2012, amendments to the IRPR to support the implementation of the Temporary Resident Biometrics Project (TRBP) were prepublished in the Canada Gazette, Part I. Following a 30-day comment period, the final Regulations were made and published in the Canada Gazette, Part II, on May 8, 2013 (the final Regulations and the Regulatory Impact Analysis Statement [RIAS] are published at http://gazette.gc.ca/rp-pr/p2/2013/2013-05-08/pdf/g2-14710.pdf).

Subsection 5(2) of the IRPA requires that the Minister table a copy of proposed regulations made under section 150.1 in each House of Parliament, prior to the GIC making the regulations. Section 13.11 of the TRBP Regulations, relating to the use and disclosure by the Royal Canadian Mounted Police (RCMP) of biometric information, is made under the authority of section 150.1 of IRPA. The other sections of the Regulations included in the TRBP proposal do not fall within the requirement of subsection 5(2) of IRPA. They therefore did not require tabling in Parliament.

The RIAS, which was prepublished in the Canada Gazette, Part I, was tabled in both Houses of Parliament, but due to an administrative error, the regulatory text of section 13.11 was inadvertently not included with the RIAS. That section was therefore not tabled in each House of Parliament as required. This oversight was raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR).

In order to correct this administrative error, section 13.11 of the IRPR was tabled in both Houses of Parliament on January 29, 2014.

Objectives

The objective of this amendment is to address the error raised by the SJCSR and to meet the requirement of subsection 5(2) of IRPA. Tabling these Regulations in Parliament allow the GIC to make the Regulations. This amendment also makes a technical revision to an element of section 13.11 of the IRPR that was published in the Canada Gazette, Part II, on May 8, 2013, to ensure grammatical accuracy.

Description

Other than a technical change described below, section 13.11 of the Regulations is the same as published in the Canada Gazette, Part II, of May 8, 2013, and described in that RIAS.

As noted in the May 2013 RIAS,

The Regulations specify the parameters that allow for biometric and related personal information collected for immigration purposes to be used or disclosed by the RCMP for the enforcement of any Canadian federal or provincial law. These Regulations apply to any fingerprints collected under IRPA, currently and in the future.

The RIAS further specifies that when there is a potential fingerprint match between a fingerprint collected for immigration purposes and a fingerprint collected by the RCMP or submitted to the RCMP by another domestic law enforcement agency

The Regulations authorize the RCMP to use, or further disclose to another Canadian law enforcement agency, the immigration biometric fingerprint and related biographic information of a foreign national or of a permanent resident for the purposes set out in the Regulations. Those purposes are

Furthermore, the Regulations specify that the data elements that can be used or disclosed by the RCMP are fingerprints, name, date of birth, gender, other names or aliases, date the fingerprints were taken and any associated file number.

While this amendment does not change the purpose, intent, or substantive wording of the Regulations that were previously published in the Canada Gazette, the text of paragraph 13.11(1)(b) contains a technical revision

“One-for-One” Rule

The “One-for-One” Rule with respect to administrative burden does not apply to these Regulations, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The RIAS previously published in the Canada Gazette, Part II, of May 8, 2013, describes in detail the consultations that have taken place with respect to the implementation of the TRBP Regulations, including section 13.11 of the Regulations.

As noted in the RIAS,

CIC [Citizenship and Immigration Canada] has, since 2009, initiated and conducted in-person consultations with a number of organizations with mandates relating to immigration, security, privacy, the facilitation of trade and tourism and the attraction of foreign students. These organizations include the Canadian Association of Professional Immigration Consultants (CAPIC), the Association of Universities and Colleges of Canada (AUCC), the Canadian Association of Tour Operators (CATO), the Canadian Bar Association (CBA), the Canadian Civil Liberties Association (CCLA), the Canadian Tourism Commission (CTC), the Centre for Immigration Policy Reform (CIPR), the CIC/Immigration Practitioners (CICIP), the Construction Sector Council (CSC), the Cross-Cultural Roundtable on Security (CCRS), the Foreign Agricultural Resource Management Services (FARMS), the Fraser Institute, Jonview Canada and the Tourism Industry Association of Canada (TIAC).

As noted in the May 2013 RIAS, prior to prepublication, stakeholders raised questions that are addressed by section 13.11,

Some stakeholders also raised concerns and questions regarding the privacy protections of biometric information. Particular privacy concerns raised by stakeholders centered on the secondary use of biometric information for the purposes of enforcing Canadian federal and provincial laws.

Canadians were also provided an opportunity to comment on these Regulations when they were prepublished in the Canada Gazette in December 2012 for a 30-day comment period.

As noted in the May 2013 RIAS, comments on section 13.11 were received during the prepublication comment period,

In its written submission, the OPC [Office of the Privacy Commissioner of Canada] also encouraged CIC to fully consider the secondary use and retention of biometric information for the purposes of law enforcement.

As noted in the RIAS,

CIC has carefully considered the secondary use and retention of the biometric (and associated biographical) information that will be collected under IRPA and held during the retention period and that will be described in the relevant Personal Information Banks of Info Source by the time implementation of biometric information collection begins. A key objective of the secondary use of immigration personal information is to support decision making on the admissibility of immigrants to Canada. Admissibility screening not only occurs prior to an individual’s entry to Canada, but is an ongoing process whereby an individual must continue to meet the requirements of IRPA in order to stay in Canada or to re-enter Canada in the future. CIC and the CBSA have a significant interest in facilitating the prevention, investigation and prosecution of offences, as the outcome of these processes may ultimately affect an individual’s admissibility to Canada.

The process described in the Regulations to provide an immigration client’s personal information to a law enforcement agency has been determined to be less privacy-invasive than other processes which could have been established. Firstly, law enforcement agencies do not have access to entire immigration case files. They cannot view or access immigration fingerprint records unless they first submit a matching fingerprint query. Secondly, a Canadian law enforcement agency cannot query the fingerprint system using a name and date of birth in order to acquire the fingerprint or other personal information. Importantly, the process provided for by the Regulations allows for the use and disclosure of immigration client information only after a law enforcement agency has collected a matching fingerprint in the course of its own work.

Given that this regulatory amendment is technical in nature and does not substantively amend section 13.11 as prepublished in December 2012 and published in May 2013, additional consultations are not necessary.

Rationale

Amending these Regulations following their tabling in Parliament on January 29, 2014, addresses an administrative error raised by the SJCSR. This amendment also addresses a technical error in the text of paragraph 13.11(1)(b) of the Regulations as published on May 8, 2013.

This amendment will not in and of itself impact stakeholders. Fingerprints collected under IRPA have been used and disclosed by the RCMP for law enforcement purposes pursuant to an arrangement between CIC and the RCMP. This amendment provides a clear regulatory authority for the secondary use, by the RCMP, of immigration biometric information that is provided to it under IRPA.

Contact

Chris Gregory
Director
Identity Management and Information Sharing
Admissibility Branch
Citizenship and Immigration Canada
300 Slater Street
Ottawa, Ontario
K1A 1L1
Email: Chris.Gregory@cic.gc.ca