Last updated on August 3rd, 2021

Last Updated on August 3, 2021 by Steven Meurrens

Discretion is the freedom to decide what should be done in a given situation.  In the criminal justice system, in 2014 the Supreme Court of Canada (the “SCC“) in R v. Anderson recognized that prosecutorial discretion “is a necessary part of a properly functioning criminal justice system.” Examples of prosecutorial discretion include the decision to repudiate a plea agreement, the decision to pursue a dangerous offender application, the decision to prefer a direct indictment, the decision to charge multiple offences, the decision to negotiate a plea, the decision to proceed summarily or by indictment, and the decision to initiate an appeal.

Similarly, in R. v. Beaudry, the Supreme Court recognized the importance of police discretion, noting that:

Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion

As the Supreme Court further wrote, “a system that attempted to eliminate discretion would be unworkably complex and rigid.”

However, in the immigration system, the Government of Canada, with the seeming approval of many Federal Court of Canada judges, has removed much of the discretion from Canada Border Services Agency (“CBSA“) officers in their administration of the Immigration and Refugee Protection Act (“IRPA“). 

Section 44 of the Immigration and Refugee Protection Act provides (emphasis added):

Preparation of report

44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Limited Discretion

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 Canada Border Services Agency (“CBSA”) officers broad discretion to exercise or not to exercise the power to write inadmissibility reports (also known as A44 reports) and to commence removal proceedings when an officer believed that someone was inadmissible to Canada.  It found that the use of the word “may” is “no more than an enabling provision, nothing more.”  Cha generally stands for the proposition that CBSA is precluded from considering humanitarian and compassionate factors under subsection 44(2) of the IRPA in the context of a foreign national allegedly inadmissible for criminality under section 36.

Since Cha the Federal Court has generally adopted a very restrictive approach in assessing whether CBSA has discretion to refer individuals to the Immigration Division if they are inadmissible for serious criminality.

In McAlpin v. Canada (Public Safety and Emergency Preparedness), 2018 FC 422, the Chief Justice wrote:

It would ordinarily be reasonably open to an officer or a ministerial delegate to prioritize public safety and security, even to the point of entirely refraining from taking humanitarian & compassionate factors into account in stating the rationale for a decision to refer someone for an admissibility hearing. This is particularly so in the case of someone who is or appears to be inadmissible on grounds of “serious criminality.” Indeed, this follows from the fact that there is no obligation on an officer or a ministerial delegate to consider humanitarian & compassionate factors in exercising the discretion.

In Lin v Canada (Public Safety and Emergency Preparedness), 2019 FC 862, Justice Barnes further held that “neither the officer nor the delegate is authorized or required to make findings of fact or law. They  conduct a summary review of the record before them on the strength of which they express non-binding opinions about potential inadmissibility. This is no more than a screening exercise that triggers an adjudication… To the extent that there is any discretion not to make a referral to the ID, it is up to the Officer and the Delegate to determine how that will be exercised and what evidence will be applied to the task. ”

However, in Zhang v. Canada (Public Safety and Emergency Preparedness), 2021 FC 746, Justice Ahmed stated that CBSA does have the ability to consider H&C factors in A37 organized crime inadmissibility allegations.

Balancing Charter Values

In Law Society of British Columbia v Trinity Western University, 2018 SCC 32, the Supreme Court of Canada stated (citations removed for ease of reading):

…the preliminary question is whether the administrative decision engages the Charter by limiting Charter protections — both rights and values. If so, the question becomes “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.” The extent of the impact on the Charter protection must be proportionate in light of the statutory objectives.

.. Since Charter protections are implicated, the reviewing court must be satisfied that the decision reflects a proportionate balance between the Charter protections at play and the relevant statutory mandate. This is the analysis we adopt.

Hence, administrative decision-makers are required to achieve a proportionate balance between the Charter protections at play and their relevant statutory mandate.

In Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733, Madam Justice McDonald found that such a balancing was not achieved.  She wrote:

Here, Mr. Abdi provided detailed submissions on his particular and unique facts, including the fact that he was a long-term ward of the state. With respect to his lack of Canadian citizenship, he highlighted the fact that the DCS intervened to remove his name from his aunt’s citizenship application. These factors may be relevant considerations with respect to a s.15 Charter value of non-discrimination in the MD’s referral decision. But they were not considered. There is no indication in the record or in the MD’s decision that she turned her mind to any of these considerations.

It is important that applicants wishing to make Charter arguments do so at the earliest opportunity, as, pursuant to the decision in Surgeon v. Canada (Citizenship and Immigration), 2019 FC 1314, CBSA does not have a positive obligation to independently reflect upon Charter values or to hunt for leval evidence in support of an applicant.