Canada’s Least Wanted: The Two Perspectives of the Administrative Lawyer

Justice Canada Staff Seminar Series, Department of Justice, Montréal

January 17, 2013

Abstract

Taking a leaf out of a book first written by the FBI, the federal government has tasked the Canada Border Services Agency with the preparation and maintenance of a ‘Most Wanted’ list. The CBSA list bears some resemblance to that of the FBI: on it feature individuals, complete with photographs and short biographies, judged inadmissible to Canada because of infractions identified by the Immigration and Refugee Protection Act.

In principle, the ‘Wanted by the CBSA’ list is not objectionable. However, a device of this nature needs to be fitted with appropriate circuit breakers. An appearance on the list could have serious consequences for an individual wrongly identified. As the list expands – potentially to include those who have not yet been judged inadmissible – the need for systematic protections increases.

From the perspective of the administrative lawyer, the list can be viewed from two perspectives. As a preliminary matter, it is important to identify the legal and policy bases for the creation of the list, in order to view the list in the clearest possible light. Moreover, law and policy set the parameters of the framework within which the executive can legitimately operate.

The first perspective is that of institutional design. Some internal procedure is necessary to determine who is put on the list and who is not. Beyond this, a procedure is also necessary to determine when an individual should be taken off the list, because they are no longer in Canada, or because they ought not to have been put on the list in the first place. In the design of these procedures, federal government policy-makers and lawyers should be alive to the various cognitive biases which can hinder rational decision-making.

The second perspective is that of judicial review, with its substantive and procedural dimensions. One can imagine challenges based on the absence of the necessary justification, transparency and intelligibility in the decision-making processes, mounted by those who feel they have been wrongly listed. In addition, to the extent that the policy targets individuals who may be, or are, outside Canada, the issue of extra-territoriality may be relevant to the lawfulness of the list. Although challenges on procedural grounds to a decision to place someone on the list would be far-fetched, a decision not to remove an individual might trigger procedural rights, such as disclosure.

Viewing the list from these two perspectives may shed light on the nature of administrative decision-making and, more concretely, inform future decisions about the scope of the list.

This content has been updated on August 23, 2014 at 12:18.