The Door is Still Open on Officer Discretion to Write/Refer the s.44 Report

For a permanent resident convicted in Canada of serious criminality, and sentenced to six months or more in jail, the section 44 stage is usually the last place anyone can still decide not to remove them.

Once the report is referred, the Immigration Division does not weigh the life in Canada. As indicated, if the conviction is for a serious offence in Canada, then the allegation is made out and it meets the threshold and the Division will issue a deportation order. If the sentence was 6 months or more in jail, then there is no appeal to the Immigration Appeal Division. Section 25 humanitarian relief may also be illusory (this would have to be pursued after PR status is lost) given the current processing times.

In these circumstances, the focus turns to the initiation of the process. The officer who writes the report, and the minister’s delegate who decides whether to refer it, are often the only people left with any choice.

The path is straightforward. CBSA has a concern — most often a Canadian conviction, sometimes organized criminality, sometimes misrepresentation. For a permanent resident, policy is still to send a procedural fairness letter, or what is really a request for information. Counsel answers. The officer decides whether to write the section 44(1) report. The delegate then decides whether to refer it under section 44(2). If it is referred on a Canadian conviction, the hearing is short and the order follows.

That letter is not a full humanitarian application, and officers are not required to treat it as one. The Federal Court of Appeal in Obazughanmwen described the process as closer to screening. Chief Justice Diner did not undo that in Bent (2026 FC 1161). What he said, at paragraphs 53 and 54, is plainer. Nobody has to open the door to personal circumstances. The door is not shut either. Once an officer or delegate opens it — by asking for submissions, accepting them, or agreeing to look again — they cannot shut it without dealing with what is inside. The reasons can be short. They still have to answer the material that was put in front of them.

Dass (2024 FC 624) and Campagna (2025 FC 613) are the same idea from slightly different facts. In both, there was no IAD appeal waiting at the end. In both, the person tried to put their circumstances in front of the officer before the report was written or referred. In Campagna, CBSA went after organized criminality after a conditional discharge had been secured on the criminal charge. The Court faulted the delegate for inviting the ENF 5 factors and then not dealing with them reasonably. None of these cases is a template. They turned on what was actually in the file, and on a decision that did not address what the officer had themselves invited.

Also, this opportunity may not be the right moment; perhaps the powder should be kept dry. If the permanent resident still has an appeal to the Immigration Appeal Division — a sentence under six months, a misrepresentation finding — the equitable hearing is still ahead. Or, there’s a chance at the ID (still arguable for PRs facing allegations for s.34, 35, 37 –or its alleged criminality outside of Canada).

At the IAD the Ribic factors can be argued before an independent decision maker. Dumping an incomplete story into a fairness letter can lock in a version of events that is hard to walk back. Sometimes the better move is a shorter response, or a request for the notes and more time, and to save the full record for the forum that can actually use it.

This is where an experienced immigration litigator can help make a call.

Where there is no substantive ID hearing or an IAD appeal, that option is gone. The response has to carry the case. If its criminality in Canada, do not soft-pedal the conviction. The officer already has it. What they may not have is the extenuating/mitigation life circumstances leading to the index offence (like Bent), the sentencing remarks, the pre-sentence report, what was said about rehabilitation, the family that is actually here, and what removal does to a child in concrete terms, the absence of other recourses, etc. rather than in a paragraph of adjectives and argument.

There are (of course) no guarantees. The manual still says public safety comes first, and it is true that the discretion is narrow. It may be a tough row to hoe. But with an H&C queue measured in years, and no appeal after referral, it is worth taking the shot in the right circumstances, and ask that the Officer desist from writing the report/referring it.