Last updated on February 3rd, 2019

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.

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“) 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 (citations removed for ease of reading):

In Ruby v. Canada (Solicitor General) 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.”  It wrote (citations removed for ease of reading):

As I see it, in so far as foreign nationals convicted of certain offences in Canada are concerned, the immigration officer, once he is satisfied that a foreign national has been convicted of offences described in paragraph 36(1)(a) or 36(2)(a) of the Act, is expected to prepare a report under subsection 44(1) of the Act, unless a pardon has been granted, unless the convictions have been reversed, unless the inadmissibility resulted from the conviction of two offences that may only be prosecuted summarily and the foreign national have not been convicted in the five years following the completion of the imposed sentences, or unless the offence is designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.

[…]

I conclude that the wording of sections 36 and 44 of the Act and of the applicable sections of the Regulations does not allow immigration officers and Minister’s delegates, in making findings of inadmissibility under subsections 44(1) and (2) of the Act in respect of persons convicted of serious or simple offences in Canada, any room to manoeuvre apart from that expressly carved out in the Act and the Regulations. Immigration officers and Minister’s delegates are simply on a fact-finding mission, no more, no less. Particular circumstances of the person, the offence, the conviction and the sentence are beyond their reach. It is their respective responsibility, when they find a person to be inadmissible on grounds of serious or simple criminality, to prepare a report and to act on it.

This view is consistent with that expressed by Sopinka J. in Chiarelli (supra). To paraphrase him, this condition (of not committing certain offences in Canada) represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. It is true that the personal circumstances of the criminals may vary widely. It is true that the offences vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. But the fact is, they all deliberately violated an essential condition under which they were permitted to remain in Canada. It is not necessary to look beyond this fact to other aggravating or mitigating circumstances.

It cannot be, in my view, that Parliament would have in sections 36 and 44 of the Act spent so much effort defining objective circumstances in which persons who commit certain well defined offences in Canada are to be removed, to then grant the immigration officer or the Minister’s delegate the option to keep these persons in Canada for reasons other than those contemplated by the Act and the Regulations. It is not the function of the immigration officer, when deciding whether or not to prepare a report on inadmissibility based on paragraph 36(2)(a) grounds, or the function of the Minister’s delegate when he acts on a report, to deal with matters described in sections 25 (H&C considerations) and 112 (Pre-Removal Assessment Risk) of the Act.

The intent of Parliament is clear. The Minister’s delegate is only empowered under subsection 44(2) of the Act to make removal orders in prescribed cases which are clear and non-controversial and where the facts simply dictate the remedy. According to the Manual (ENF 6, paragraph 3), it is precisely because there was nothing else to consider but objective facts that the power was given to the Minister’s delegate to make the removal order without any need to pursue the matter further before the Immigration Division. In the circumstances, the use of the word “may” does not attract discretion. “May” is no more than an enabling provision, nothing more, to use the words of Létourneau J.A. in Ruby (supra), “than a signal from the legislator that an official is being empowered to do something”. It may be that the Minister or his delegate, as part of their executive responsibilities, will prefer to suspend or defer making the deportation order, where, for example, the person is already the subject of a deportation order, has already made plans to leave Canada or has been called as a witness in a forthcoming trial.

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, the Department has given officers the flexibility to not write an A44 Report or seek removal where the objectives of the Act may or will otherwise be achieved without the need to do so.  Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual (the “Manual”) lists numerous factors that officers should consider when deciding whether to write A44 Reports and seek removal.  The Manual states:

The fact that officers have the discretionary power to decide whether or not to write an inadmissibility report does not mean that they can disregard the fact that someone is, or may be, inadmissible, or that they can grant status to that person under A21 and A22.

Rather, this discretion gives officers flexibility in managing cases where no removal order will be sought, or where the circumstances are such that the objectives of the Act may or will be achieved without the need to write a formal inadmissibility report under the provisions of A44(1).

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As the Federal Court of Canada noted in Virani v. Canada (Public Safety and Emergency Preparedness), 2017 FC 1030, the Manual grants the authority and discretion to officers to decide not to write A44 reports, even if an officer determines that someone is inadmissible.

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