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.