A Common Sense Approach to A44 Reports

Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“).   The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal.

I have underlined the word “may” above because the use of the term “may” in the Act has caused much confusion.

In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) went beyond what even the government was seeking, and declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada.  The FCA stated:

In Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.), at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion is given to an administrative decision maker. It can sometimes be read in context as “must” or “shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act, R.S.C., 1985, c. I‑21 that “may” is permissive. It can also be read as no more than a signal from the legislator that an official is being empowered to do something. Even when “may” is read as granting discretion, all grants of discretion are not created equal: depending on the purpose and object of the legislation, there may be considerable discretion, or there may be little.

The FCA went on to hold that in the context of serious criminal inadmissibility CBSA officers must prepare an A44 Report and act on it, and that the use of the word “may” is “no more than an enabling provision, nothing more.”  The Federal Court has since cited Cha for the principle that CBSA officers have very little discretion in deciding whether to write an A44 Report and commencing removal proceedings once they believe that someone is inadmissible (see Nagalingam v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1411).

In practice, if CBSA were to prepare an A44 Report and seek removal for every inadmissible person it would be unmanageable.  Accordingly, they have given officers the flexibility to not write an A44 Report or seek removal where the objectives of the Act may or will be achieved without the need to do so.  Most of the officers that I know like this discretion as they understand that in certain circumstances the preparation of an A44 Report would be extremely disproportionate and/or not in the public interest.  The Citizenship and Immigration Canada Enforcement Manual (the “Manual”) lists numerous factors that officers should consider when deciding whether to write A44 Reports and seek removal.  The Manual states:

Thankfully, the FCA appears to have recently indirectly addressed the issue of what “may” means in B010 v. The Minister of Citizenship and Immigration, 2013 FCA 87.   In this case, which was primarily about whether a person could be inadmissible to Canada for human smuggling if they did not receive a material benefit (they can be), the FCA stated:

 The preparation of a report is permissive, that is, an officer “may” prepare a report. As well, the Minister’s delegate “may” refer the report to the Immigration Division. It is to be expected that common sense will prevail in situations such as when family members simply assist other family members in their flight to Canada, or when a person acting for humanitarian purposes advises a refugee claimant to come to Canada without documents.

I agree.  And much as the FCA is now saying that it is to be expected that common sense will prevail in the human smuggling context, so too should common sense prevail in cases of criminality, non-compliance, misrepresentation, etc.  CBSA Officers deal with countless potential inadmissibility issues every week.  They know which ones warrant an A44 Report, and which ones don’t.  It is time that they were empowered with a “common sense” approach rather than a “no discretion” one.

Refugees, Article 1F, and Rehabilitation

Article 1F of the 1951 Refugee Convention excludes individuals who have committed serious crimes from being eligible for refugee status under the Convention.  It states:

Article 1F of the 1951 Refugee Convention states:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

( a ) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Section 98 of Canada’s Immigration and Refugee Protection Act (the “Act“) provides that a person encompassed by the 1951 Refugee Convention is not a Convention refugee or a person in need of protection pursuant to the Act.

In Hernandez Fables v. Canada (Citizenship and Immigration), 2011 FC 1103, the Federal Court certified the following question:

When applying article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?

In other words, should a refugee claimant who has committed a serious non-political crime abroad, but has since been rehabilitated, be precluded from claiming refugee status?

The Federal Court of Appeal has definitively answered that it does not matter whether a person who has committed a serious non-political crime abroad has been rehabilitated.  The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public.

In rejecting the argument that a purposive approach to Article 1F regarded an analysis of whether an individual was presently a danger to the public, the Federal Court of Appeal cited the European Court of Justice, which wrote in 2010 that:

… the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State.

Rehabilitated individuals who are excluded from refugee protection still have the option of obtaining a stay of removal by obtaining a positive Pre-Removal Risk Assessment.



Immigration Board Member Displayed Bias

On July 29, 2010, the Federal Court of Appeal released its decision in Heron Bay Investments Ltd. v. Her Majesty the Queen, 2010 FCA 2003. The case involved a claim of a reasonable apprehension of bias against the Tax Court judge. The Federal Court of Appeal agreed, noting that the Tax Court judge “seemed to fall into the habit of taking over the questioning” and that he “adopted a position in position to [the applicant] on a critical issue in the case”, giving rise to a reasonable apprehension of bias.
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Espionage and Immigrating to Canada

On July 19, 2010, the Federal Court in Peer v. Canada (Citizenship and Immigration), 2010 FC 752 certified the following question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

On March 9, 2011, the Federal Court of Appeal answered.  The answer is yes.

The “Innocent Mistake” Defence to Misrepresentation

On October 12, 2011, I wrote about how the Federal Court in Osisanwo had certified the following question:

Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?


Ultimately, the Respondent in Osisanwo did not litigate to the Federal Court of Appeal.  However, on April 13, 2012,  the Federal Court issued several judgements in misrepresentation cases that establish a clear rule regarding whether innocent mistake is a defence to s. 40 misrepresentation allegations.  In essence, without explicitly stating so, the Court described misrepresentation as a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.

An Overview of the Rule

Madam Justice Tremblay-Lamer, the author of the aforementioned string of decisions,  found that misrepresentation does not always require subjective knowledge.  In clarifying this, she first cited the following passage from Jiang v Canada(Minister of Citizenship and Immigration):

With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.

She then further cited Baro v Canada (Minister of Citizenship and Immigration), where the Court held that:

Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information.

Accordingly, Madam Justice Tremblay-Lamer held that it is only in exceptional cases where an applicant can demonstrate (1) that he honestly and reasonably believed that he was not withholding material information, and (2) where “the knowledge of which was beyond his control”, that the applicant may be able to take advantage of a “reasonably innocent mistake” defence to misrepresentation.

And of course, simply trusting a representative is not due diligence.