Settled Law: The Very Limited Discretion under s.44 of the Act

In Canadian immigration law, a permanent resident (PR) who is convicted and sentenced to six months or more in prison loses their right to appeal to the Immigration Appeal Division (IAD). A strategy often employed in these situations is to persuade the immigration officer or the Minister’s Delegate not to issue a report. If no report is written, there are no grounds for enforcement action.

This approach was notably attempted in the case of Jaskirat Sidhu, the driver in an accident that took the lives of 16 and resulted in life altering injuries to 13 others. I’ve discussed his case on several occasions:

Mr. Sidhu is a PR of Canada and after pleading guilty and receiving an eight-year prison sentence, made substantial submissions through his lawyer to the responsible officer or Minister’s Delegate. Despite these efforts, the officer/Minister’s Delegate decided to proceed with writing and referring the section 44(1) and (2) report.

Chief Justice Crampton recently ruled on the application for leave and judicial review filed by Sidhu against this decision. The case’s background is tragic, with Sidhu’s actions leading to significant and widespread pain. His remorse has been consistently described as profound and genuine. Sidhu, along with his partner Ms. Mann, had worked hard to build a life in Canada, but now faces deportation to India.

The outcome of this case, as Chief Justice Crampton remarked, may make the healing process more challenging for those hoping for a different decision.

In his ruling, Chief Justice Crampton clarified the current legal standing regarding the discretion available to an officer or Minister’s Delegate. He outlined that the discretion under subsections 44(1) and (2) of the Immigration and Refugee Protection Act (IRPA) is very limited, particularly in cases involving serious or organized criminality. He emphasized that immigration officers and ministerial delegates are primarily engaged in fact-finding, with no mandate to consider the personal circumstances of the individual, the nature of the offense, the conviction, or the sentence. This includes humanitarian and compassionate (H&C) considerations.

Furthermore, Chief Justice Crampton stressed that this administrative screening function is meant to assess only the facts related to admissibility. These principles apply equally to both foreign nationals and permanent residents and are relevant to sections 36 and 37 of the IRPA.

What’s next for Mr. Sidhu? The CJ has with this decision provided a nice runway for a future H&C. He’s still a PR until the removal order kicks in (after the ID inevitably issues same) and the H&C will have to be filed at that moment.

An update will be necessary to my book given the FCA decision and CJ Crampton discussion of same in Sidhu. As he says, the law is now settled and by way of analogy (mine) Officers/MD have at most sliced deli meat level thin discretion when it comes to writing reports dealing with serious crim/org crim.

This case highlights the narrow scope of discretion available to immigration officers and ministerial delegates in situations involving serious criminality. It serves as a crucial reminder of the complexities and limitations within Canada’s immigration law, particularly for those facing deportation due to criminal convictions.