There is a proposal under consideration that would vest decision making about immigration removal orders in the wrong hands and without proper oversight.
Last November, the Canadian Border Services Agency (CBSA) announced that it was in consultation with Immigration, Refugees and Citizenship Canada (IRCC) to consider potential amendments to the Immigration and Refugee Protection Regulations (IRPR). The changes contemplated involve the transborder criminal inadmissibility framework under the Immigration and Refugee Protection Act (IRPA). CBSA is proposing that the authority to issue removal orders for foreign nationals who commit specific criminal offences upon entry to Canada should be transferred from the Immigration Division (ID) of the Immigration and Refugee Board (IRB) to CBSA officers.
CBSA has made this proposal under the guise of creating efficiency and improving the cost-effectiveness of Canada’s immigration enforcement agency. However, upon closer examination, this proposal raises significant concerns.
Under the current framework, a foreign national is inadmissible on grounds of criminality for committing, on entering Canada, offences prescribed by the IRPR Section 19 of the IRPR lists the offences to include those under the Criminal Code, the Immigration and Refugee Protection Act, the Firearms Act, the Customs Act, the Controlled Drugs and Substances Act and the Cannabis Act.
CBSA proposes that the provision be amended to prescribe specific offences from these Acts of Parliament to determine transborder crime and associated inadmissibility upon entry.
As such, the CBSA further proposes that section 228 of the IRPR be amended to transfer authority from the ID to CBSA officers. This would ensure the timely removal of individuals who commit straightforward offences on entry, rather than allow the foreign national to enter into Canada for an admissibility hearing, which could take several months.”
The changes would “streamline the inadmissibility determination process,” according to the CBSA.
Finally, the proposal seeks to amends section 229 of the IRPR, giving the ID authority to issue removal orders for inadmissibility for offences committed on entry that are not listed in the proposed amendments to 228.
There are three types of removal orders issued by IRCC or CBSA: departure orders (you must leave Canada within 30 days after the order takes effect), exclusion orders (you cannot return to for one year), and deportation orders (you are permanently barred from returning to unless you apply for an authorization, or ARC). Each type of removal order has serious immigration consequences for foreign nationals.
Contrary to the principle of procedural fairness
First, the fundamental issue with these proposed amendments is that procedural fairness cannot be afforded in a summary manner by immigration enforcement officers who do not have the requisite independence.
Procedural fairness is a cornerstone of Canadian administrative law and some of its primary elements are the right to fair and impartial decision making and the right to be heard. As outlined by the Supreme Court of Canada in Baker v Canada (1992), the principle of procedural fairness emphasizes that more procedural safeguards need to be put in place where the potential consequences of a decision can substantially affect an individual’s life and safety. Removal orders have severe consequences for those facing them, including a possible lifetime ban on a foreign national from entering Canada. As such, foreign nationals must be given a high degree of procedural fairness in the immigration context.
The CBSA’s suggestion that certain offences are “straight forward enough,” to be determined at the time of entry, and consequently render a foreign national inadmissible without the right to be heard or have counsel is contrary to these foundational legal principles which ensure fairness in Canada’s immigration system.
CBSA officers are often influenced by immediate policy considerations, as the COVID-19 pandemic illustrated. In March 2020, the Government of Canada first banned foreign nationals from entering Canada. It later prohibited foreign nationals from entering Canada from the United States for “optional or discretionary purposes.” The problem was that there was no public guidance on what CBSA considered an “optional or discretionary purpose.” It took significant advocacy on the part of Canadian immigration lawyers and advocates, including a judicial review, to get CBSA’s guidance on these travel restrictions and quarantine requirements. In fact, the CBSA’s guidelines appeared to be in direct conflict with IRCC’s program delivery instructions, which sought to give power to IRCC officers to allow them to reunite family members during the pandemic, in accordance with the family reunification objectives of the IRPA.
Disproportionately affecting visible minorities
Bringing an anti-racism lens to this issue, there’s also the issue of accountability in decision making. Expediency and efficiency at the border unfortunately disproportionately impact certain individuals, namely visible minorities. Section 15 of the Canadian Charter of Rights and Freedoms seeks to ensure that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination on various prescribed grounds including race, national or ethnic origin, and colour. However, in practice, CBSA officers who deal with enforcement issues and border security day in and day out are more likely to be influenced by security considerations and institutional bias.
In a letter responding to the proposed amendments, the Immigration Law Section of the Canadian Bar Association stated that it was expected that “enforcement-minded decision-making prioritizing expediency and efficiency will have a disparate impact on foreign nationals from Black, Indigenous and Persons of Colour (BIPOC) communities entering Canada.”
Allegations of misconduct and racial profiling by the CBSA are not new. In May 2020, the CBC reported on a list of more than 500 allegations against CBSA officers, obtained through an access to information request.
In September 2019, Mohamed Duale, a Canadian citizen, doctoral student at York University and a black, Muslim man, was subjected to questioning at Toronto Pearson’s International Airport when he tried to re-enter Canada. Duale recalled the CBSA agent telling him, “It’s because of where you were born – you’re Somalian, right?” Since then, Duale filed a complaint against CBSA, which the Canadian Human Rights Commission accepted. The National Council of Canadian Muslims is representing Duale. It recently released a report in October 2020 detailing concerns about CBSA’s racial profiling based on the lived experiences of Canadian Muslims and called for greater accountability.
Let’s not forget that the Government of Canada is committed to an Anti-Racism Strategy for 2019-2022. It would be counter-productive to give increased decision-making authority to CBSA border officers, who are susceptible to unconscious or conscious bias.
CBSA has zero civilian oversight
Despite various ongoing calls for establishing civilian oversight for the CBSA, the agency continues to be the only major law enforcement agency in Canada without an independent external oversight body. The CBSA’s lack of oversight aggravates the above concerns, in that there’s currently no mechanism in place to effectively address concerns about the inappropriate use of discretion and conduct, including racial bias. Not only will procedural fairness be compromised, but as things stand today, the body entrusted with exercising discretion on serious allegations with severe consequences is itself not accountable to a body with effective oversight.
For all of the above reasons, the procedural safeguards that are afforded by a truly independent administrative tribunal, namely the ID, are simply not available if the proposed amendments are implemented and significant decision-making authority is transferred to the CBSA.