Dunking the Doughnut: Discretionary Power,Law and the Administration of the Canadian Immigration Act

Abstract

Three main assumptions are embedded in the conventional view of discretion - that law is the primary instrument of social regulation, that discretion is a residual category of law and that this discretion is exercised by individuals who are essentially autonomous. While recent scholarly analyses of discretion have begun to unsettle this view, its core assumptions nonetheless remain largely undisturbed and continue to guide policy debates to such an extent that they set the parameters of imagined reforms related to its use. This is the case despite contemporary and historical experiences which cast some doubt on the potential of law to effectively address the ‘problem’ of discretion. This article aims to contribute to the unsettling of this conventional view of discretion through a preliminary analysis of the uses of discretion in the context of the administration of a body of law in which discretion is particularly important but has not been much examined - the enforcement provisions of the Canadian Immigration Act. This study proposes that discretion be regarded as a form of constitutive power, the workings of which cannot be adequately understood in the abstract. It begins to explore the ways in which this discretionary power facilitates the translation of shifting societal anxieties and priorities into exclusionary immigration law and policy.