Section 44 — Report on inadmissibility
Text of provision
(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
(4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person.
(5) The prescribed conditions imposed under subsection (4) cease to apply only when
(a) the person is detained;
(b) the report on inadmissibility on grounds of security is withdrawn;
(c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security;
(d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or
(e) a removal order is enforced against the person in accordance with the regulations.
Plain English
Section 44 establishes the process for initiating removal proceedings. When an officer believes on reasonable grounds that a permanent resident or foreign national is inadmissible, the officer may prepare a report setting out the relevant facts.
Section 44(1) gives the reporting officer discretion — "may" prepare a report, not "shall". The officer must consider the circumstances and exercise judgment about whether to report.
Section 44(2) requires the Minister's delegate to review the report and, if satisfied the report is well-founded, refer it to the Immigration Division for an admissibility hearing, or, in the case of a foreign national, issue a removal order directly.
Practical effect
The s 44 report is the formal trigger for inadmissibility proceedings. It must be based on specific grounds set out in IRPA (ss 33–43). An officer cannot write a report on grounds that are not listed in those provisions.
The discretion in s 44(1) is limited — courts have held that officers must consider humanitarian and compassionate factors but that the threshold for exercising discretion not to report is high. The Federal Court has found that s 44 discretion must be exercised in good faith and with reference to the correct legal standard.
A referral to the Immigration Division triggers a formal hearing at which the permanent resident or foreign national has the right to be represented and to present evidence.