Persistent Discord: The Adjudication of National Security Deportation Cases in Canada (2018–2020)

Abstract

This study asks two research questions. First, how many people get deported from Canada for security reasons and what are those reasons? This empirical study of deportation cases (2018-2020) finds that the number of national security and terrorism deportation cases in Canada is at a record high and that Canada’s deportation tribunal is the country’s busiest national security tribunal. Despite this volume, most cases (60 per cent) turned on the same allegation. During the period under study, Canada regularly moved to deport members of the Bangladesh National Party, claiming that the group intentionally used terror-based tactics.

The second research question focuses on adjudicative consistency. Most security deportation cases were not just similar, they were functionally identical. The government tended to lead the same evidentiary package across cases and adjudicators tended to recycle their reasons between cases. Even though most cases were the same, first-instance adjudicators sometimes reached opposite conclusions: some always found that the BNP engaged in terrorism, some always concluded that it did not. Using a bespoke computer program, this study tracked how each terrorism case was treated by the Federal Court of Canada on judicial review. Startingly, even when different judges reviewed cases that were functionally word-for-word identical on the core issue, they reached different conclusions. This study raises rule of law concerns: does the BNP engage in terrorism? It depends on the adjudicator or judge you ask. This article ends with recommendations aimed to help tribunals and courts develop a consistent and coherent jurisprudence.

Keywords: terrorism, deportation, immigration law, administrative law, consistency