The Scope of Discretion under s.44(1) and 44(2) of the IRPA

A PR loses a substantive right of appeal to the IAD if they are convicted and sentenced to a term of imprisonment of 6 months or longer in Canada. One approach to deal with such cases was to seek the Officer/Delegate's discretion not to write a report. No report means no enforcement. 

This was the approach taken by Jaskirat Sidhu who pled guilty and received an incarceral sentence of 8 years. Through counsel he made extensive submissions to the responsible officer/Minister's Delegate. The officer/MD ultimately proceeded with writing/referring the s.44(1) and (2) report. 

Chief Justice Crampton dismissed the application for leave and judicial review filed by Jaskirat Singh Sidhu against the decision to write and refer the s.44 report. 

[1] The circumstances leading to these proceedings are heartbreaking. I cannot recall any case more truly tragic for everyone involved. ...

[4] By all accounts, Mr. Sidhu has demonstrated an extraordinary degree of genuine, heart-wrenching remorse. He now faces removal to India, after he and Ms. Mann spent many years of hard work to establish themselves in Canada. ...

[8] Unfortunately, regardless of my determinations, the healing required to return to some form of a better life may become more difficult for some people who wish for a different outcome than the one I reach.

CJ Crampton canvassed the current state of the law and in essence finds that uncertainties concerning the scope of discretion afforded to an officer/Minister's delegate has been resolved:

[60] Consequently, it is appropriate to restate the general principles applicable to the scope of the discretion contemplated by subsections 44(1) and (2) of the IRPA as follows:

1. The scope of discretion held by immigration officers under subsection 44(1) and by ministerial delegates under subsection 44(2) of the IRPA is very limited, especially in cases of serious criminality and organized criminality: Obazughanmwen, at paras 27 and 29.

2. In this context, immigration officers and ministerial 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 the reach of those decision-makers: Obazughanmwen, at paras 31 and 39 (quoting Cha, at para 35). Such excluded personal circumstances include H&C considerations: Obazughanmwen, at paras 31 (quoting Cha, at paragraph 37) and 44-45; see also Lin v Canada (Public Safety and Emergency Preparedness), 2019 FC 862 at para 20 [Lin], aff’d 2021 FCA 81.

3. For greater certainty, the exercise contemplated by subsections 44(1) and (2) is an administrative screening function that is only meant to look into readily and objectively ascertainable facts concerning admissibility: Obazughanmwen, at para 37; see also paras 27 and 30.

4. These principles apply equally to foreign nationals and permanent residents: Obazughanmwen, at para 32; see also Lin, at paras 17-18. They also apply with equal force to sections 36 and 37 of the IRPA: Obazughanmwen, at para 41.