Canadian Refugee Procedure/133-136 - Prosecution of Offences
IRPA Sections 133-136: Prosecution of OffencesEdit
Sections 133-136 of the Immigration and Refugee Protection Act read:
Prosecution of Offences Deferral 133 A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.
The deferral of prosecutions provided for in s. 133 of the IRPA tracks Canada's obligations pursuant to the Refugee ConventionEdit
Refugee Convention Article 31(1) states that "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". While this provision of the Convention was not reflected in the 1976 Immigration Act, the Act was subsequently amended to include section 133 of the IRPA. This provision was inserted into the Act following the report to the Minister of Rabbi Plaut, who noted that "Until a claim is finally disposed of, it cannot be determined if the claimant is entitled to the protection of Article 31." He therefore recommended that "the Act be further amended to prohibit any prosecutions for illegal entry or presence in Canada during the determination process." While it is possible that, if a refugee claim is rejected, a claimant's irregular entry into Canada could be a legal offence, in practice this is pursued only in exceptional circumstances, as simply asking people to leave or having the authorities remove them for not having a visa is easier and more efficient.
Limitation period for summary conviction offences 133.1 (1) A proceeding by way of summary conviction for an offence under section 117, 126 or 127, or section 131 as it relates to section 117, may be instituted at any time within, but not later than, 10 years after the day on which the subject-matter of the proceeding arose, and a proceeding by way of summary conviction for any other offence under this Act may be instituted at any time within, but not later than, five years after the day on which the subject-matter of the proceeding arose. Application (2) Subsection (1) does not apply if the subject-matter of the proceeding arose before the day on which this section comes into force. Defence — incorporation by reference 134 No person may be found guilty of an offence or subjected to a penalty for the contravention of a provision of a regulation that incorporates material by reference, unless it is proved that, at the time of the alleged contravention, (a) the material was reasonably accessible to the person; (b) reasonable steps had been taken to ensure that the material was accessible to persons likely to be affected by the regulation; or (c) the material had been published in the Canada Gazette. Offences outside Canada 135 An act or omission that would by reason of this Act be punishable as an offence if committed in Canada is, if committed outside Canada, an offence under this Act and may be tried and punished in Canada. Venue 136 (1) A proceeding in respect of an offence under this Act may be instituted, tried and determined at the place in Canada where the offence was committed or at the place in Canada where the person charged with the offence is or has an office or place of business at the time of the institution of those proceedings. Where commission outside Canada (2) A proceeding in respect of an offence under this Act that is committed outside Canada may be instituted, tried and determined at any place in Canada.
- W. Gunther Plaut, Refugee determination in Canada: A report to the Honourable Flora MacDonald, Minister of Employment and Immigration, April 1985, Government of Canada publication, page 161.
- Monica Boyd & Nathan T.B. Ly (2021) Unwanted and Uninvited: Canadian Exceptionalism in Migration and the 2017-2020 Irregular Border Crossings, American Review of Canadian Studies, 51:1, 95-121, DOI: 10.1080/02722011.2021.1899743 at page 97.