Lessons in procedural justice

Draft regulatory amendments from the Canada Border Services Agency relating to transborder criminal inadmissibility have the potential to undermine legal and procedural safeguards, the CBA’s Immigration Law Section says in a letter responding the proposed amendments.

Among other things, the Section “strongly opposes” shifting the decision-making power over subsection 36(2)(d) of the Immigration and Refugee Protection Act, which renders foreign nationals inadmissible for committing prescribed offences upon entering Canada, from the Immigration and Refugee Board to the CBSA.

“Procedural safeguards, including the right to the assistance of a lawyer and to ‘know the case to be met,’ are fundamental components of Canada’s justice system,” the Section writes. “At a port of entry, individuals unfamiliar with the Canadian legal system and often not proficient in English or French would be subject to on-the-spot enforcement.”

It’s not clear, the Section notes, at what point of a CBSA investigation a person would have a right to a lawyer, or what procedures would ensure that the foreign national knows the case to be met and is able to gather the information necessary to do so, as well as discuss it with a lawyer – which could lead to an increase in Federal Court litigation focused on breaches of procedural fairness.

While the amendments are meant in part to address a Senate committee’s concerns that the inadmissibility process needs to be more efficient, the Section says efficiency does not justify overriding legal safeguards.

There are mechanisms in place to address any risks to the safety of Canadians that these admissions may pose, the Section says in its letter to the CBSA. But given the current reliance on virtual hearings, people can attend from anywhere in the world “in accordance with legislation, regulations, and principles of natural justice and procedural fairness.”

Virtual hearings satisfy the objective of disallowing entry to Canada of a person suspected of being inadmissible, the Section notes.

The Section also points out that CBSA officers have no training in what the draft amendments refer to as “certain straightforward offences,” such as impaired driving, or identifying counterfeit or altered documents.

Giving additional enforcement tools to the CBSA, which has no civilian oversight, is troubling, the Section says.

“We expect that enforcement-minded decision-making prioritizing expediency and efficiency will have a disparate impact on foreign nationals from Black, Indigenous and Persons of Colour communities entering Canada,” the Section adds. “Conscious and unconscious biases, influenced by security considerations, may lead to disproportionate enforcement actions.”