Friday, 18 January 2013

Canada's Least Wanted

I spent yesterday afternoon in a professional development session at the Department of Justice on the subject of the Canadian Border Services Agency's "Wanted" list. Here is the abstract of my talk, Canada's Least Wanted: Two Perspectives of an Administrative Lawyer:

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.
I was generally positive about the CBSA's initiative, though with some reservations about plans to expand the list to assist in locating individuals who are wanted for admissibility hearings (i.e. those against whom no finding of inadmissibility has yet been made).

So far there have been no challenges to the list itself. An appearance on the list was held by Tremblay-Lamer J. in Guzman v. Canada (Public Safety and Emergency Preparedness), 2012 FC 401 to be an important factor in determining whether an individual would be at risk if returned to his country of origin:
[20]           To begin with, the applicant had told the officer that the CBSA had posted his photo [translation] “on its site and all over the Canadian media”, as a most wanted criminal. This information in itself refutes the officer’s finding that Canadian authorities do not disclose the criminal histories of individuals they remove to El Salvador, and that the applicant’s criminal history would not subject him to any particular risk in El Salvador. It may well be the case that Canadian authorities do not share the reason for the removal with foreign authorities, but circumstances in this case certainly increase the likelihood that the Salvadoran government would be aware of the applicant’s criminal past, especially given the fact that his face was posted all over the Internet and in newspapers across Canada. At any rate, the officer did not address this issue in his analysis.
The list also made an appearance during oral argument at the Supreme Court of Canada yesterday in Ezokola. Counsel for the Canadian Council of Refugees made reference to the consequences of a finding of inadmissibility for complicity in the commission of war crimes as including potentially being placed on the "Wanted" list. 

It will be interesting to see if there is any in-depth judicial treatment of the list and, if so, what conclusions will be reached.

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